VendorTrax Terms of Use

1.     Binding Effect. Please read these Terms of Use (“Terms”) carefully before using the VendorTrax (“Company”) software or service. These Terms govern and apply to all persons who access and use (“You” and/or “Users”) the Company domain, related service domains, websites, and mobile applications (collectively, “Services”).  By accessing or using the Services, You acknowledge that You have read these terms, understand them, and agree to be bound by the terms and conditions described herein. 

2.     Privacy Policy. Company respects Your privacy and permits You to control the treatment of Your personal information. A complete statement of Company’s current Privacy Policy can be found by clicking here. Company’s Privacy Policy is expressly incorporated into these Terms by this reference.

3.    Subscription.

    3.1. Your VendorTrax subscription will continue and automatically renew until terminated. To use the Services You must have Internet access and a VendorTrax ready device and provide us with one or more Payment Methods. “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through Your account with a third party. You must cancel your subscription before it renews in order to avoid billing of the subscription fees for the next billing cycle to Your Payment Method (see “Cancellation” below).

3.2. We may offer a number of subscription plans, including special promotional plans or subscriptions offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. Some subscription plans may have differing conditions and limitations, which will be disclosed at Your registration or in other communications made available to You. You can receive specific details regarding your VendorTrax subscription by sending a request to support@vendortrax.com.

4.    Free Trials

    4.1. Your VendorTrax subscription may start with a free trial. The duration of the free trial period of Your subscription lasts will be specified during registration and is intended to allow new and certain former Users to try the Services.

4.2. Free trial eligibility is determined by Company at its sole discretion and we may limit eligibility or duration to prevent free trial abuse. We reserve the right to revoke the free trial and put Your account on hold in the event that we determine that You are not eligible. Users of companies with an existing or recent VendorTrax subscription are not eligible. We may use information such as device ID, method of payment or an account email address used with an existing or recent VendorTrax subscription to determine eligibility. For combinations with other offers, restrictions may apply.

4.3. We will charge the subscription fee for Your next billing cycle to Your Payment Method at the end of the free trial period and Your subscription will automatically renew unless You cancel Your subscription prior to the end of the free trial period. To view the applicable subscription price and end date of your free trial period, send a request to support@vendortrax.com.

5.    Billing and Cancellation

    5.1. Billing Cycle. The subscription fee for the Services and any other charges You may incur in connection with Your use of the Services, such as taxes and possible transaction fees, will be charged to Your Payment Method on the specific billing date. The length of Your billing cycle will depend on the type of subscription that You choose when you register for the Service. Subscription fees are fully earned upon payment. In some cases Your payment date may change, for example if Your Payment Method has not successfully settled or if Your paid subscription began on a day not contained in a given month. Send a request to support@vendortrax.com for an update on Your next payment date. We may authorize your Payment Method in anticipation of membership or service-related charges through various methods, including authorizing it up to approximately one month of service as soon as You register. In some instances, Your available balance or credit limit may be reduced to reflect the authorization during Your free trial period.

5.2. Payment Methods. To use the Services You must provide one or more Payment Methods. You authorize us to charge any Payment Method associated to Your account in case Your primary Payment Method is declined or no longer available to us for payment of Your subscription fee. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and You do not cancel Your account, we may suspend Your access to the Services until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge You certain fees, such as foreign transaction fees or other fees relating to the processing of Your Payment Method. Check with Your Payment Method service provider for details.

5.3. Updating Your Payment Methods. You can update Your Payment Methods by sending a request to support@vendortrax.com. We may also update Your Payment Methods using information provided by the payment service providers. Following any update, You authorize us to continue to charge the applicable Payment Method(s).

5.4. Cancellation. You can cancel Your VendorTrax subscription at any time, and You will continue to have access to the Services through the end of Your billing period. To cancel, send a request to support@vendortrax.com and follow the instructions for cancellation. If You cancel your subscription, Your account will automatically close at the end of your current billing period. To see when Your account will close, send a request to support@vendortrax.com. If You signed up for VendorTrax using Your account with a third party as a Payment Method and wish to cancel Your VendorTrax subscription, You may need to do so through that third party, for example by visiting Your account with the applicable third party and turning off auto-renew, or unsubscribing from the Services through that third party. You may also find billing information about Your VendorTrax subscription by visiting Your account with the applicable third party.

5.5. Changes to the Price and Subscription Plans. We reserve the right to change our subscription plans or adjust pricing for our Services or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in these Terms, any price changes or changes to Your subscription plan will take effect following notice to You.

5.6. No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation, however, You will continue to have access to the Services through the end of Your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our Users (“credits”). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle You to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.

6.     Account Registration and Security. In order to use or access the Services, a Super Administrator User account must be created and other Users may be added as additional profiles under this master account. 

6.1. Super Administrator User. You must complete the registration process by providing the complete and accurate information requested on the registration form. You will be provided a custom VendorTrax site, username and password for Your VendorTrax account. You will have complete rights over the account profile and are responsible for the additional profiles (such as Administrator, Manager, Technician, or Guest Account) under the Super Administrator account. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, username, or password of someone else at any time. You agree to notify Company immediately on any unauthorized use of Your VendorTrax account, username, or password. Company shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.

6.2. Other User profiles. Once You are added by the Super Administrator or other User, you will receive an email and/or text to register. You must click on the register link and  complete the registration by creating a password for Your profile. You will have complete rights over the profile. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account, username, or password of someone else at any time. You agree to notify Company immediately on any unauthorized use of Your account, username, or password. Company shall not be liable for any loss that You incur as a result of someone else using Your password, either with or without Your knowledge. You may be held liable for any losses incurred by Company, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.

6.3. Passwords and Account Access. The User who created the VendorTrax account and whose Payment Method is charged (the “Super Administrator”) has access and control over the VendorTrax account and the VendorTrax ready devices that are used to access the Services and is responsible for any activity that occurs through the VendorTrax account. To maintain control over the account and prevent anyone from accessing the account, the Super Administrator should maintain control over the VendorTrax ready devices that are used to access the Services and not reveal the password or details of the Payment Method associated to the account to anyone. You are responsible for updating and maintaining the accuracy of the information You provide to us relating to Your account. We can terminate Your account or place Your account on hold in order to protect You, VendorTrax or our partners from identity theft or other fraudulent activity. VendorTrax is not obligated to credit or discount a subscription for holds placed on the account by either a representative of VendorTrax or by the automated processes of VendorTrax.

7.     General Terms of Use of Services. 

7.1. You must be 18 years or older to use these Services.

7.2. You may not post inappropriate materials in accordance with Section 5 of these Terms. 

7.3. You are responsible for any activity that occurs under Your profile, so it is Your responsibility to keep Your profile, username, and password secure.

7.4. You may not impersonate another User, Vendor, Client, person, or entity, or represent yourself as affiliated with Company or Company’s staff.

7.5. You must not abuse, harass, threaten, impersonate, or intimidate other Users, Vendors, or Clients.

7.6. You may not use the Services for any illegal or unauthorized purpose. 

7.7. You are responsible for verifying the safety, suitability, and functional state of any items or services given, shared, sold, or received via the Services.

7.8. You may not intentionally misrepresent any items or services given, shared, or sold via the Services.

7.9. You are responsible for ensuring and being able to verify that You have legal standing to offer items (whether giving, selling, exchanging, sharing, or otherwise) posted on or using the Services.

7.10. You are responsible for Your conduct and any data, text, information, accounts, usernames, graphics, photos, profiles, audio, video clips, and links (“Content”) that You submit, post, and display on the Services.

7.11. Company does not control, is not responsible for and makes no representations or warranties with respect to any User Content.

7.12. You are responsible for Your access to, use of and/or reliance on any user 

Content. You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research and due diligence with respect to any User Content.

This list is an example and is not intended to be complete or exclusive. Company does have an obligation to monitor access or use of the Services or to review or edit any information or Content posted to Company, by the User. However, Company has the right to do so for the purpose of operating the Services, to ensure User compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

Company reserves the right, at any time and without prior notice, to remove or disable access to any data or Content submitted by a User, that it considers, in its sole discretion, to be in violation of these Terms, or harmful to the Services. Deleted content may be stored by Company in order to comply with certain legal obligations and claims. Consequently, Company encourages Users to maintain backup of his/her Content. In other words, Company is not a backup service. Company will not be liable to Users for any modification, suspension, or discontinuation of the Services, or the loss of any Content.

The Content available through the Services has not been reviewed, verified or authenticated by Company, and may include inaccuracies or false information. Company makes no representations, warranties, or guarantees in connection with the Services or any Content on the Services, relating to the quality, suitability, truth, accuracy or completeness of any Content contained in the Services.

8.    Inappropriate Content. You agree not to upload, download, display, perform, transmit, or otherwise distribute any Content that (i) is libelous, defamatory, obscene, pornographic, abusive, or threatening or (ii) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation. Company reserves the right to terminate Your receipt, transmission, or other distribution of any such Content or material using the Services, and, if applicable, to delete any such material from its servers. Company intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws.

9.    Proprietary Rights in Content on Service

9.1. Company does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, works of authorship, applications, or any other Content that You post on or through the Services. By displaying or publishing (“Posting”) any Content on or through the Services, You hereby grant to Company a non-exclusive, fully paid and royalty-free, worldwide, sub-licensable and transferable license to use, modify, publicly perform, publicly display, reproduce and distribute such Content, including without limitation distributing part or all of the Content in any media formats through any media channels now known or hereafter invented.

9.2. Some of the Services are supported by advertising revenue and may display advertisements and promotions, and You hereby agree that Company may place such advertising and promotions on the Services or on, about, or in conjunction with Your Content. The manner, mode, and extent of such advertising and promotions are subject to change without specific notice to You.

9.3. You represent and warrant that: (i) You own the Content posted by You on or through the Services or otherwise have the right to grant the license set forth in this section, (ii) the Posting and use of Your Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the Posting of Your Content on the Services does not result in a breach of contract between You and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content You Post on or through the Services  within Indemnification section below.

9.4. Company owns and retains all rights in the Content and the Services. Company grants You a limited, revocable, non-sublicensable license to reproduce and display the Content (excluding any software code) solely for Your personal use in connection with using the Services.

9.5. The Services contain Content of Users and other licensors. Except as provided within this Agreement, You may not copy, modify, create derivative works, publicly display, publicly perform, or digitally transmit any Content appearing on or through the Services.

9.6. Company performs technical functions necessary to offer the Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the Services.

10.    General conditions associated with Services.

10.1. Company reserves the right to refuse service to anyone for any reason at any time.

10.2. Company reserves the right to force forfeiture of any custom VendorTrax site and/or username that becomes inactive, violates trademark, may mislead other Users, or is otherwise deemed inappropriate by Company.

10.3. Company may, but has no obligation to, remove Content and accounts containing Content that Company determines in its sole discretion are unlawful, offensive, threatening, defamatory, obscene, otherwise objectionable, violates any party’s intellectual property, these Terms of Use, or Privacy Policy.

10.4. Company reserves the right to reclaim custom VendorTrax sites and/or usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.

10.5. Company may collect personal identifiable information in accordance with the Privacy Policy.

11.    Communications. You shall not post, transmit or otherwise distribute any surveys, contests, pyramid schemes, chain letters, junk mail, spam, or unsolicited messages; use of information provided by Company, upload of viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; use of metatag searches of the website or the Services; or creating a false identity for the purpose of misleading others. You further understand that Company will retain information in e-mail and other accounts, that Company reserves the right to set the maximum number or size of messages that may be sent from a single account, and that Company reserves the right for termination of an account for inactivity.

12.     Specific Terms for Vendors and Clients. “Vendors” and “Clients” means Users who are categorized as Employee(s), Contact(s), Property Management(s), Committee(s), Director(s), Owner(s), Tenant(s), Prime Contractors, and Subcontractors are defined as individual(s) or entity(ies) that have agreed to the Terms and have the authority to engage in the Services. Vendors and Clients represent to the Company that they have the authority to engage with one another, and will maintain all applicable permits or licenses as required by law, and will act in accordance with all local and state rules. Vendors and Clients may receive an email and/or text with a link to access a service request via a portal in which they can access, view, comment, cost approve/decline, electronically sign, and upload files to. 

13.     Communications between Users. Pursuant to Paragraphs 12 of these Terms, the Services include a mechanism for communications between Users, Vendors, and Clients. Company reserves the right to modify the availability of communication channels and monitor the communications between Users, Vendors, and Clients. 

14.    Electronic Signature of Documents by Users. The Services include a mechanism for electronic signatures by Users, Vendors, and Clients. Company does not undertake any liability regarding validity or confidentiality of documents exchanged between Users, Vendors, and Clients. By agreeing to the Terms, You acknowledge that you are responsible to ensure validity of all documents and signatures. 

15.    User Reviews. The Services may evolve to allow for reviews and input on Users, Vendors, and Clients. At such time, Company reserves the right to modify the availability of reviews and monitor the reviews posted by Users, Vendors, and Clients.

16.    Disputes between Vendors and Clients.  Should a dispute arise between the Client and Vendor, these parties agree to resolve their dispute among themselves. The Company will cooperate as necessary and provide information at its discretion and with applicable law or the order or requirement of a court, administrative agency or other governmental body. Throughout any dispute process, the Client and Vendor agree not to willfully interfere with the ongoing business of the Company. The Company’s  total liability to You from all causes of action and under all theories of liability will be limited to ten (10) percent of the amount You paid for the Services over one year and the Company will not be liable to You for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (1) Your access to or use of or inability to access or use the Services (2) any conduct or content of any third party on the Services; and (3) any content obtained from the Services; whether based on warranty, contract, tort (including negligence) or any other legal theory, (4) any communications, transactions, interactions, disputes or any relations whatsoever between You and any other User, Vendor, Client, person or organization; whether or not  the Company has been informed of the possibility of such damage, and even if a remedy forth herein is found to have failed its essential purpose.

17.    Prohibited Uses of the Services. Company imposes certain restrictions on Your permissible use of the Services. You are prohibited from violating or attempting to violate any security features of the Services, including, without limitation, (a) accessing content or data not intended for You, or logging onto a server or account that You are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Services, any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with Services to any User, Vendor, Client, host, or network, including, without limitation, by means of submitting a virus to the Services, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Services to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Services; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing the Services. Any violation of system or network security may subject You to civil and/or criminal liability.

18.    Notice and Takedown Procedure for Copyright Complaints. It is Company’s policy to expeditiously respond to clear notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (DMCA). This information provided by the U.S. Copyright Office describes the information that should be present in these notices. It is designed to make submitting notices of alleged infringement to Company as straightforward as possible while reducing the number of notices that Company receives that are fraudulent or difficult to understand or verify. The form of notice specified below is consistent with the form suggested by the DMCA (the text of which can be found at the U.S. Copyright Office Web Site), but Company will respond to notices of this form from other jurisdictions as well.

It is expected that all Users of any part of the Services will comply with applicable copyright laws. However, if Company receives proper notification of claimed copyright infringement, its response to these notices will include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating subscribers, regardless of whether Company may be liable for such infringement under United States law or the laws of another jurisdiction.

If Company removes or disables access in response to such a notice, Company will make a good-faith attempt to contact the owner or administrator of the affected site or content so that they may make a counter notification pursuant to 17 USC Sections 512(g)(2) and (3) of the DMCA. Company may also document notices of alleged infringement on which it acts.

19.    Designated Agent. Company’s Designated Agent to receive notification of alleged infringement under the DMCA is:

Brian Wittmayer
PO Box 282
La Mesa, CA 91944

Upon receipt of proper notification of claimed infringement, Company will follow the procedures outlined herein and in the DMCA.

20.    Infringement Notification. If You believe that Your work has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide Company’s Designated Agent (listed above) the following information in a written communication (preferably via email):

Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
Information reasonably sufficient to permit Company to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted;
The following statement: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”;
The following statement: “I swear, under penalty of perjury, that the information in the notification is accurate, and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”; and
A physical or electronic signature of the owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please note that You may be liable for damages (including costs and attorneys’ fees) if You materially misrepresent that material is infringing Your copyrights. Accordingly, if You are not sure whether material available online infringes Your copyright, it is suggested that You first contact an attorney.

21.    Counter Notification. A provider of content subject to a claim of infringement may make a counter notification pursuant to sections 512(g)(2) and (3) of the DMCA. To file a counter notification with Company, please provide Company’s Designated Agent (listed above) the following information in a written communication (preferably via email):

Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
Your name, address, and telephone number;
The following statement: “I consent to the jurisdiction of Federal District Court for the [insert the federal judicial district in which Your address is located]”;
The following statement: “I will accept service of process from [insert the name of the person who submitted the infringement notification] or his/her agent”;
The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the affected material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled”; and
Your signature, in physical or electronic form.

Upon receipt of such counter notification, Company will promptly provide the person who provided the original infringement notification with a copy of the counter notification, and inform that person that Company will replace the removed material or cease disabling access to it in ten (10) business days. Company will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14), business days following receipt of the counter notice, unless the Designated Agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on Company’s system or network.

22.    Repeat Infringers. In accordance with Section 512(i)(1)(a) of the DMCA, Company will, in appropriate circumstances, disable and/or terminate the accounts of Users who are repeat infringers.

23.    Accommodation of Standard Technical Measures. It is Company’s policy to accommodate and not interfere with standard technical measures used by copyright owners to identify or protect copyrighted works that Company determines are reasonable under the circumstances.

24.    Additional Terms Applicable to Company as Offered by Specific Partners. Users agree to adhere to the terms assigned to copies of the Service that are accessed through or downloaded from the Google Play or Apple iTunes App Store (“App Provider”). 

25.    Indemnification. You agree to indemnify and hold Company harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees) Company incurs in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party relating to (i) Your use or misuse of, or access to the Services, or the use of the Services, (ii) a violation of the Terms of this agreement, any applicable law or regulation, or the rights of any third party, by any person using Your account; (iii) Your Content; or (iv) (a) Your interaction with any Users, Vendors, and/or Clients, (b) Your transfer of any item or service, or (c) Your creation of an item or service post. Liability for any given item or service offered by You includes, but is not limited to, any injuries, losses, or damages of any kind arising in connection with or as a result of a request for or use of an item or service.

Company retains the right to employ Company’s own counsel. You remain solely responsible for Company’s defense and must obtain Company’s written consent to a settlement. You agree to notify Company of a pending suit claiming You have violated a third party’s intellectual property or other rights. Company requires that You confirm Your indemnification in case of a lawsuit; failure to do so may be considered a breach of Your Terms of Use.  

26.    Integration with Third Party Services. If You are using the Services combined, integrated, or used with third party products, software applications, or website (“Third Party Service[s]”), You agree that: (i) You may be required to enter into a separate license agreement with the relevant third party owner or licensor for the use of their Third Party Services (ii) the functionality of the Services, may be diminished when operating through a Third Party Service; and (iii) Company cannot guarantee that the Services shall always be available on or in connection with such Third Party Services.

27.    Restrictions on Relationship Between Company and Users. The Terms shall not be construed as to grant any User, Vendor or Client any title, lease, easement, lien, possession or related rights in the business of Company. The Terms creates no employee/employer relationship and no User, Vendor, or Client will in any way misrepresent said relationship. The Terms do not create a bailment relationship between Company and User, Vendor, or Client.

28.    Ownership. Company and the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Company (or its licensors) exclusively own all right, title and interest in the Services, including all associated intellectual property rights. You acknowledge and agree that any feedback, comments, or suggestions You may provide regarding the Services (“Feedback”) is given voluntarily and, even if designated as confidential, will not create any confidentiality obligation for us and Company will be free to use, disclose, reproduce, license, distribute, and otherwise exploit such Feedback as Company may see fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

29.    Modification. Company reserves the right, at its sole discretion, to modify or replace any of these Terms on the Company website and/or mobile application by sending You notice through the Service via e-mail and through an application message. Company may also impose limits on certain features and/or restrict access to parts or all of the Services without notice or liability. You may not opt out of these notifications, and Your continued use of the Services following the posting of any changes to these Terms constitutes acceptance of those changes.

30.    Termination. Company may terminate, change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) or Your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with Your use of the Services and related Content.

31.     Disclaimer. You understand and agree that the Services are provided to You “AS IS” and on an “AS AVAILABLE” basis. Without limiting the foregoing, COMPANY EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Company makes no warranty that the Services will meet Your requirements or be available on an uninterrupted, secure, or error-free basis.

32. Limitation of Liability. COMPANY’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE ON A MONTHLY BASIS OR ONE YEAR WORTH OF SERVICES, WHICHEVER VALUE IS LESS. COMPANY WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (1) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (2) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES; AND (3) ANY CONTENT OBTAINED FROM THE SERVICES; WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, (4) ANY COMMUNICATIONS, TRANSACTIONS, INTERACTIONS, DISPUTES OR ANY RELATIONS WHATSOEVER BETWEEN YOU AND ANY OTHER USER, PERSON OR ORGANIZATION; WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

33.     Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to You. In these cases, Company’s liability will be limited to the fullest extent permitted by applicable law.

34.     Arbitration. For any dispute You have with Company, You agree to first contact the Company and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute within thirty (30) days, Users, Vendors, and Clients agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms, or breach or alleged breach thereof (collectively, “Claims”), by binding arbitration. Unless You and Company decide otherwise, arbitration will be conducted in California. If Your claim is for $10,000 USD or less, Company agrees that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the arbitration rules.  Each party will be responsible for paying any filing, administrative and arbitrator fees. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for experts and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall prevent either party from seeking injunctive or equitable relief from the courts for matters related to intellectual property rights or unauthorized access to the Services. TO THE EXTENT PERMITTED BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS COMPANY AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

35.     Governing Law. These Terms are governed by the laws of the State of California, without regard to any conflict of laws, rules, or principles. 

36.     Other Terms. Company’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. 

These Terms constitute the entire agreement between Company and Users regarding the Services and supersede and replace any prior agreements Company might have with Users regarding the Services.

37.     Severability. No part of this agreement shall cease to be in effect if any other part is deemed unenforceable, or otherwise non-applicable. 

38.    Questions and Contact Information. Please contact us if You have any questions about the Terms. Alternatively, Company can be contacted at:

Brian Wittmayer
PO Box 282
La Mesa, CA 91944

 

Effective: April 5, 2020