Downtime Trace LLC
Terms and Conditions of Service – Customers [Health Care Providers/Equipment Owners]
Downtime Trace is a mobile marketplace app that connects health care providers with competent labor and parts options for turnkey service on their medical imaging equipment, and serves as the single-point of payment for health care providers to their servicers at all steps in the process. The app showcases our service brethren - ISOs (independent service organizations), and OEMs (original equipment manufacturers), as well as introducing “gig technicians” - in a personalized format to make it easy for health care providers to see their service technicians' pictures, technical competency and experience on specific makes/models, along with ratings and reviews. These terms are for Health Care Providers who are using the app to seek out services, repairs, or replacement parts.
By creating an account, you agree to accept these Terms and Conditions (the “Terms”).
If you entered into a separately executed order form issued pursuant to these Terms, which may include a purchase ticket generated within the app (“Order Form”), that Order Form is incorporated by reference into these Terms unless explicitly stated otherwise. In the event of a conflict between these Terms and any terms and conditions contained within an incorporated Order Form, these Terms govern.
If you are using the Service on behalf of any organization, you represent and warrant that you are authorized to accept these Terms on such organization’s behalf (in which case, “Customer”, “you” and “your,” will refer to that organization, and “user” refers to such organization’s users), and that such organization agrees to indemnify you and us for violations of these Terms. Nothing in these Terms will be deemed to confer rights or benefits on any third party.
DOWNTIME TRACE WILL PROVIDE THE SERVICES TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH ALL TERMS AND CONDITIONS IN THIS AGREEMENT. YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SERVICES.
1. Changes to these Terms. We reserve the right to change or modify these Terms and any policies or guidelines governing your use of the Service, at any time in our sole discretion. Any such changes or modifications will be effective upon the next renewal of your order after revisions are posted on our Website or through the Platform. Your continued use of the Service following the posting of such changes or modifications constitutes your acceptance thereof. Therefore, you should frequently review these Terms and all applicable policies or guidelines on the Website or through the Platform in order to understand the terms and conditions applicable to your use of the Service. If you do not agree to any changes or modifications to these Terms or to any applicable policies or guidelines on the Website, your sole recourse is to stop using the Service.
2. The Services. The Services include a marketplace software platform (the “Platform”) which enable you and other users to find, request, or receive (i) Third-Party Services from third party service providers, including without limitation, ISOs, OEMs and any other equipment repair service providers (“Providers”); (ii) related content, including features, recommendations and advertisements for products or services tailored to your needs; and (iii) certain supporting services, including providing you the ability to express certain preferences about the Third-Party Services or Providers, payment processing and customer support.
Once you make a request, Downtime Trace notifies Providers that an opportunity is available so that the Provider may complete your request. It is up to the Provider to decide whether or not to offer Third-Party Services to you or at all, and it is up to you to decide whether or not to accept such services from a Provider. Please note that once your request for the Services has begun, you may no longer have the option to reschedule or cancel. If Downtime Trace is able to reschedule or cancel your request, you may be charged a fee and/or may not be refunded for items that have been purchased on your behalf.
GENERALLY, THE SERVICES ARE ONLY OPEN TO REGISTERED USERS OF THE SERVICES AND NOT TO THE GENERAL PUBLIC.
YOUR ABILITY TO REQUEST, AND IF APPLICABLE, OBTAIN THIRD-PARTY SERVICES FROM PROVIDERS IN CONNECTION WITH THE USE OF THE SERVICES DOES NOT ESTABLISH DOWNTIME TRACE AS A PROVIDER OF ANYTHING OTHER THAN THE SERVICES AND THE PLATFORM. PROVIDERS ARE INDEPENDENT AND NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF DOWNTIME TRACE IN ANY WAY.
ANY EFFORT, FEATURE, PROCESS, POLICY, STANDARD, OR OTHER EFFORT UNDERTAKEN BY DOWNTIME TRACE TO FACILITATE YOUR RECEIPT OF THIRD-PARTY SERVICES OR IN THE INTEREST OF SAFETY OR SECURITY (WHETHER REQUIRED BY APPLICABLE REGULATIONS OR NOT) IS NOT AN INDICIA OF AN EMPLOYMENT, ACTUAL AGENCY, APPARENT AGENCY, OR OSTENSIBLE AGENCY RELATIONSHIP WITH A PROVIDER.
Third-Party Services may be subject to additional terms, conditions, fees, and policies imposed by the Provider. In the event of a conflict in the terms of any Third-Party Services and these Terms, these Terms shall control with respect to Downtime Trace and your agreements with Downtime Trace herein and the terms of any Third-Party Services shall not be applicable to Downtime Trace. The limitations of liability set forth in Section 16 shall also apply to claims against Downtime Trace involving a Provider. Downtime Trace does not endorse any Providers or Third-Party Services and in no event shall Downtime Trace be responsible or liable for any Third-Party Services of any Providers.
3. Privacy. Please refer to our Privacy Policy (“Privacy Policy”) for information on our privacy practices. Your use of the Website, the Platform and/or the Service signifies your acknowledgment of, and agreement to, the Privacy Policy. If you are a resident of any country outside the United States, you understand and agree that we will store and process your personal information on computers located in the United States, and that by providing any information to us, you consent to the transfer of such information to the United States.
4. Your Account. We require you to register and create an account in order to use the Service. For creating an account, you must complete an online registration form designating a user ID and password. In order to create an account, you must be 18 years of age or older. By registering, you represent and warrant that you are 18 years of age or older.
You are solely responsible for all materials and information that you upload, post or otherwise transmit via the Service. Only you may use your Downtime Trace account and you are responsible for your account. Please also refer to the Acceptable Use Policy in Section 8 below.
If you become aware of any unauthorized use or access of your account, or have any account related questions, please contact Downtime Trace Support.
5. Account Terms. You represent and warrant that you: (a) are authorized to use the Website, the Platform and the Service; (b) all of your registration, account and payment information is true, accurate and complete at all times; (c) you will maintain the security of your password, if any; and (d) you accept all responsibility for all activity that occurs under your user name. Any breach or suspected breach of any of the above representations or warranties may result in immediate termination of your account or suspension of your account without, if applicable, any refund.
You acknowledge and agree that you may only access and use the Website, the Platform, and the Service for lawful purposes and in accordance with any use or account restrictions defined in these Terms or any applicable Order Forms, or imposed by the Website, the Platform, or the Service. If your account is subject to any seat restrictions, only one seat may be used per person and you are responsible for purchasing a sufficient number of seats and access for your usage.
You must use your professional email address(es) when you register for an account. If your organization provided you with your account, you understand that such organization has rights to your account and may: (i) manage your account (including suspending or canceling it); (ii) reset your password; (iii) view your usage and profile data, including how and when your account was used; and (iv) manage the Content (as defined below) in your account. If you are the primary contact and/or administrator of your organization’s relationship with Downtime Trace, you acknowledge and agree that all users you authorize to access Downtime Trace on behalf of your organization have reviewed and will comply with all terms and conditions herein.
By creating an account, you electronically agree to accept and receive communications from Downtime Trace, Providers or third parties providing services to Downtime Trace including via email, text message, WhatsApp, calls, in-app communications, and push notifications to the telephone number(s) or email addresses you provided to Downtime Trace.
6. Content; Feedback. You may post or submit or link to equipment and inventory descriptions, summaries, pictures, reviews, comments, suggestions, ideas, information, data and/or other content (“Content“) on the Platform.
You agree to ensure that Content does not include any data for which you do not have all rights, power and authority necessary for its collection, use and processing as contemplated by this Agreement. You represent that you have given all notices and obtained all consents that may be required, including under applicable privacy laws, for us to collect, use and process Content as contemplated by this Agreement. You are responsible for obtaining all rights, permissions, licenses, and authorizations to provide your Content for use as contemplated under this Agreement.
You agree to ensure that Content does not contain any of the following categories of data without our prior written consent: (i) Social Security numbers or other government-issued identification numbers; (ii) credentials to any online accounts; (iii) credentials to any financial accounts; (iv) cardholder data as defined under the Payment Card Industry Data Security Standard (PCI-DSS); (v) tax return data; (vi) “consumer reports” as defined under the Fair Credit Reporting Act; (vii) biometric data, biometric information, biometric identifiers, or information within the scope of similar terms defined in privacy laws; (viii) genetic or health information, including “protected health information” as defined by the Health Insurance Portability and Accountability Act (HIPAA); (ix) data pertaining to identifiable children under 18 years of age; (x) criminal histories; (xi) information that constitutes “special categories of data”, “sensitive personal information” or “sensitive data” as defined in privacy laws.
We reserve the right (but do not have the obligation) to remove or edit such Content. We do not regularly review posted Content. If you do post or upload Content, and unless we indicate otherwise, you grant us a nonexclusive, royalty-free, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Content throughout the world in any media during the Term in order to provide the Services. You grant us and our sub-licensees the right to use the name that you submit in connection with such Content if we or they choose. You represent and warrant that: (a) you own or otherwise control all of the rights to the Content that you post and/or submit; (b) the Content is accurate; (c) the use of the Content you post and/or submit does not violate these Terms; and (d) the Content will not cause injury to any person or entity. We have the right, but not the obligation, to monitor and edit or remove any activity or Content. We take no responsibility and assume no liability for any Content posted by you or any third party.
You grant Downtime Trace a non-exclusive, fully-paid-up, world-wide, royalty-free license: (i) to use any Content you provide, including to improve Downtime Trace’s Services, (ii) to use your Content for the performance of sales and services by Downtime Trace, provided your Content is anonymized and excludes your confidential information or personal data; and (iii) to use statistical and aggregated data derived from your Content, including from your use of the Services, for Downtime Trace’s business purposes, provided your Content is anonymized and excludes your confidential information or personal data.
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about us or the Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop new products, services, or the Services in our sole discretion. We will exclusively own all improvements to existing, or new, Downtime Trace products or services based on any Feedback. You understand that Downtime Trace may treat Feedback as nonconfidential.
7. Data Security. While we take reasonable measures to safeguard your Content, you are solely responsible for maintaining a backup of all of your Content outside of the Service that is readily available to you at all times in case of any loss, erasure or destruction of your Content stored on the Service. In particular, we are not responsible for any delays, problems or other issues that may arise during the process when you sync up the Services across various platforms, such as your smartphone, iPad and/or any laptop or desktop through which you access the Service. We do not control those devices and cannot ensure their safety or the security of your Content available through those devices, including, without limitation, any unauthorized access by anyone using those devices with or without your consent. You acknowledge and understand that we rely on third party providers to provide us and users of the Service, including you, various security and encryption measures reasonably necessary to safeguard your Content. We have listed the measures that we currently take on the Website and/or Platform merely for illustration purposes and we do not warrant their availability at all times or their efficacy. Our respective vendors are solely responsible for the security measures they provide and your sole remedy for any security incident affecting your Content would be against them and not us.
Please be aware that we do not and cannot guarantee that our privacy and data security policies and practices will comply with or conform to any minimum or higher privacy or data security standards that may be imposed on any materials or other content you store on the Service. You are solely responsible for complying with such policies and practices, and you acknowledge and agree that Downtime Trace will not be liable in the event your use of the Service does not comply with such policies and practices. You are solely responsible for verifying and ensuring that our systems meet any such requirements imposed on you by applicable law, regulations, governmental, court or regulatory orders, or custom or usage of trade, and we are not responsible for any resulting consequences you may face if our systems or our service is found not to meet those specific legal, regulatory or governmental standards, except to the extent we otherwise expressly state in our Privacy Policy or these Terms.
8. Acceptable Use Policy. You agree that you will not, nor will you encourage others or assist others, to: (a) harm the Service or use the Service to harm, threaten or harass others; (b) build a similar or competitive service or website using information or other materials accessible only to those who create an account with Downtime Trace; (c) damage, disable, overburden, or impair the Service (or any network connected to the Service); (d) resell or redistribute the Service or any part of it; (e) probe, scan or test the vulnerability of any system or network related to the Service; (f) breach or otherwise circumvent any security measures or authentication protocols, including any authorized third party payment network protocols used by or through us; (g) use any authorized means, or any automated process or service (such as a bot, spider, or periodic caching of information stored on the Service, the Website, or any other property of Downtime Trace) to modify, reroute, or gain access to or use of the Service or attempt to carry out any of these activities; (h) use the Service beyond the features or functionality allocations (including without limitation seat limits) and amounts or storage space limits provided in your specific Service or in violation of our fair use policy; (i) use the Service to violate any law or distribute malware, malicious, unlawful, indecent or pornographic Content; (j) distribute, post, share information or Content you don’t have the right to or is illegal or that violates the terms of Section 7 above; or (k) violate the privacy or infringe the rights of others.
You also agree to comply at all times with all laws, regulations, government, court and regulatory orders, notifications, customs and usage of trade as may be applicable to you and your use of the Service. In particular, you will not create, upload, or store any Content on the Service if such creation or storage would result in breach of your legal or regulatory obligations and may expose us to any legal or regulatory action, investigation, penalty, fine or suspension. You understand and acknowledge that Downtime Trace merely provides a management system relating to equipment servicing maintenance for health service provider entities, their users, and their Providers and we do not control how or what Content or other information you specifically store on the Service, except for any overall account and storage limits that we may impose from time to time based on your account type.
In addition, you agree that you are solely responsible for your equipment, instruments and devices, including obtaining and maintaining adequate storage or insurance for such items.
9. Ownership and Copyright. The Platform, the Website and all content and other materials on the Platform and the Website, including, but not limited to, our logo and all designs, text, graphics, logos, icons, images, photographs, audio clips, digital downloads, data compilations, software and the selection and arrangement thereof (collectively, the “Portfolio“) are our property or that of our licensors or users and are protected by United States and/or international copyright laws. We reserve all rights not expressly granted in this Agreement. The Platform, our Website, and all data gathered through our Platform, including all intellectual property rights therein (the “Platform IP”), are and remain our property and/or that of our licensors, as applicable.
10. Trademark. “Downtime Trace” and any other product or service names or slogans contained on the Website or the Platform (including, without limitation, App Store, Play Store, iCloud, Evernote, Adobe or Dropbox) are trademarks of Downtime Trace LLC or its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Downtime Trace or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Downtime Trace” or any other name, trademark or product or service name of Downtime Trace without our prior written permission. In addition, the look and feel of the Website and the Platform, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Downtime Trace and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Website or the Platform are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
11. Limited License and Restrictions. We grant you a limited, non-sublicensable, non-exclusive and revocable license to access and make use of the Website, the Platform and the Portfolio for your internal business purposes and not for the development or design of any other software, product, or solution, solely in accordance with, and subject to, these Terms (including any additional terms incorporated by reference) and any other of our policies and guidelines as posted on the Website, the Platform or the applicable app store (“Store”). Except as otherwise expressly permitted by these Terms, you may not: (a) collect, use, copy or distribute any portion of the Website, the Platform or the Portfolio; (b) resell, publicly perform or publicly display any portion of the Website, the Platform or the Portfolio; (c) modify or otherwise make any derivative uses of any portion of the Website, the Platform or the Portfolio; (d) use any “deep-link,” “page-scrape,” “robot,” “spider” or other automatic device, program, algorithm or methodology which perform similar functions to access, acquire, copy, or monitor any portion of the Website or the Platform; (e) use the Website or the Platform in a manner which results in the depletion of Website or the Platform infrastructural resources; (f) download (other than page caching) any portion of the Website, the Platform, the Portfolio or any information contained therein; or (g) use the Website, the Platform or the Portfolio other than for their intended purposes.
12. Third Party Sites and Content. We may host or provide links to products, Web pages, Web sites and other content of third parties (“Third Party Sites and Content”). The inclusion of any link or the hosting of any content is provided solely as a convenience to our users, including you, and does not imply affiliation, endorsement, approval, control or adoption by us of any Web site or any information or content contained therein. We make no claims or representations regarding, and accept no responsibility for, such Third Party Sites and Content, or for the quality, accuracy, nature, ownership or reliability thereof. Users, including you, may use these links and the Third Party Sites and Content contained therein at their own risk. When you leave the Website or the Platform, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Website or Platform.
13. Third Party Products and Services. We may provide information or links to third party products or services, including the Providers and Third-Party Services, on the Website or the Platform. Your business dealings or correspondence with, any terms, conditions, warranties or representations associated with such dealings, including the Providers and Third-Party Services, are solely between you and such third party, provided, however, that requesting or providing email addresses, third party messaging applications, telephone numbers or any other personal contact details to communicate outside of the Platform in order to circumvent or abuse the Platform is not permitted. Any necessary exchange of personal information required to continue a service may be exchanged within the Platform. We are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such third party information on the Website or the Platform. Although appointments between you and a Provider may be made and/or cancelled via the Platform, rescheduling is the responsibility of you and the Provider; Downtime Trace shall not be responsible for your delayed, missed or canceled appointments or Third-Party Services.
You must accept bids for Third-Party Services via the Platform, and may not cancel accepted bids without reasonable cause. Cancelling an accepted bid for Third-Party Services may affect your reputation and rating and subject you to penalties. Third-Party Services are not eligible to be canceled based on the quality delivered by the Provider if the Third-Party Service was rendered as described in the bid provided by the Provider or as agreed between you and Provider. You may rate your experience with the Provider on the Platform, including the overall level of service quality received. You must use the Platform to address any concerns and desired resolutions related to the Third-Party Service provided by the Provider prior to contacting Downtime Trace. Downtime Trace will not take any action against Providers or regarding Third-Party Services, where the Customer has failed to inform their Provider of issues related to the Third-Party Service; Downtime Trace will allow Provider to propose and provide a resolution first.
You may not offer Providers to make payment using any method other than through the Platform. In case you have been asked to use an alternative payment method, please report it immediately to support@downtimetrace.com.
14. Guidance, Examples and Other Support. From time to time, we may provide guidance, videos, examples, and other support (collectively, “Support”) to enhance your experience using the Website, the Platform and the Service. Unless explicitly provided otherwise in an applicable Order Form, you agree that such Support is provided solely as a matter of convenience and for illustration purposes only and does not guarantee or warrant any specific user experience and is not intended to demonstrate, promise or represent the presence or absence of any features in the Website, the Platform and the Service. You agree to rely on Support solely to explore the ways and manner in which you may use the Service and to understand its possible uses to satisfy your needs. If you use the Platform or the Service, or any portion of it, for purposes of equipment repair, you will take adequate precautions to ensure that you retain all relevant data (including copies thereof) in your possession, outside of and independent of the Website and the Platform, specifically to protect yourself against loss or erasure of data or its unavailability in the event the Website, the Platform or the Service is unreachable or non-functional.
15. DISCLAIMER OF WARRANTIES. THE WEBSITE, THE APP, THE SERVICE, THE MATERIAL AND THE SUPPORT, AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE, THE APP OR THE STORE ARE PROVIDED TO YOU ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND, UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING. WE DO NOT WARRANT THAT THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT OR ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE OR THE APP ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE AVAILABILITY, RELIABILITY OR SECURITY OF THE WEBSITE, THE APP OR THE SERVICE.
UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, WE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT AND ANY SERVICE OR THIRD-PARTY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE OR THE APP WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING: (A) ANY AND ALL WARRANTIES OF MERCHANTABILITY; (B) ANY AND ALL WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WE KNEW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE AWARE OF ANY SUCH PURPOSE); (C) ANY AND ALL WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE; (D) ALL WARRANTIES WITH RESPECT TO UPTIME AND DATA ACCURACY; (E) ALL WARRANTIES WITH RESPECT TO ANY AND ALL CONTENT AND RELATED THIRD-PARTY SERVICES OR DELIVERIES PROVIDED IN CONNECTION WITH THIS AGREEMENT; AND (F) THAT THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE OR THE APP WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO WARRANTIES. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
16. LIMITATION OF LIABILITY. IN NO EVENT WILL DOWNTIME TRACE OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF REVENUE, LOSS OF PROFITS, OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT AND/OR ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE OR THE APP, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE APP, THE MATERIALS, THE SUPPORT AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE OR THE APP EXCEED THE GREATER OF (A) AGGREGATE OF THE NET AMOUNTS RECEIVED BY US FROM YOU, IF ANY, FOR SOLELY YOUR ACCESS TO OR USE OF THE WEBSITE OR THE APP (NOT YOUR PAYMENT FOR ANY SERVICE OR PRODUCTS PROVIDED BY US), AND (B) $100. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
17. Indemnification and Release. You will indemnify, defend and hold us and our investors, officers, directors, affiliates, subsidiaries, licensors, partners, licensees, consultants, contractors, agents and employees (collectively, the “Indemnified Parties“) harmless from and against any and all actual suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney and expert fees, costs, penalties, interest and disbursements) resulting from any claim (including third party claims), suit, action, or proceeding against any Indemnified Parties, whether successful or not, resulting from or arising in connection with: (a) your use of the Website, the Platform, the Portfolio, the Support and/or the Service; (b) your gross negligence or willful misconduct; (c) any breach by you of these Terms (including, but not limited to, any breach of any of your representations or warranties); and/or (d) any Content you upload to, posted on, create on, transmit through or link from the Website or the Platform.
18. Confidentiality. During your use of the Service, we may share information that is confidential, sensitive or is intended to be kept secret. Similarly, we agree that your Content, account information and payment information is confidential to you. Also, any materials either of us shares that are labeled “confidential” (or something similar) or communicated (in writing or via email) as confidential or may be understood to be so by a reasonable person, such materials would also be deemed confidential information.
Confidential information, however, will not include information that: (a) we already know at the time you tell us; (b) was told to us by a third party who had a right to tell us; (c) is generally available to the public; or (d) was independently developed by us without using any of your confidential information. The same applies to any information that we disclose to you that falls in any of these categories.
You and we agree that: (i) confidential information will remain the property of its owner; (ii) we will treat each other’s confidential information with the same degree of care that we treat our own confidential information but, in any event, with no less than a reasonable degree of care; (iii) we will use each other’s confidential information only in connection with these Terms and the Service; (iv) we will share confidential information only on a “need to know” basis with those who agree in writing to maintain its confidentiality in a similar manner; and (v) we will not share any confidential information with any third party except as allowed by these Terms or through the Service.
19. Suspension and Termination of the Service. Notwithstanding any terms to the contrary in these Terms, we reserve the right, without notice, without liability to you, to suspend or terminate your access to the Service, and/or any of your rights under these Terms (including, but not limited to, your right to use the Website, the Platform and the Service) and to block or prevent your access to and use of the Website, the Platform and the Service if we reasonably believe that you have breached these Terms. We also reserve the right to deactivate, change and/or require you to change any Downtime Trace user ID or password used in connection with the Service, if we reasonably believe that you have breached these Terms.
You understand that if your account is suspended or terminated, you may no longer have access to the Content that is stored with the Service.
Upon termination, you may request access to your Content, which we will make available, except in cases where we have terminated your account due to your violation of these Terms or our Acceptable Use Policy mentioned in Section 8 above. You must make such a request within 14 days following termination; otherwise, any Content you have stored with the Service may not be retrievable and we will have no obligation to maintain Content stored in your account after this 14-day period.
20. Service Updates. We reserve the right to make necessary deployments of changes, updates or enhancements to the Service at any time. We also may add, remove, upgrade or downgrade any functionality or features, or we may suspend or stop the Service altogether at any time.
21. Electronic Communications. Notwithstanding any terms to the contrary in these Terms, Downtime Trace may choose to electronically deliver all communications with you, which may include: (a) email to your email address indicated in your communications with Downtime Trace or upon registration with, or use of, the Website, the Platform or the Support; or (b) posting messages that are displayed to you when you log in to or access the Website, the Platform or the Support. Downtime Trace’s electronic communications to you may transmit or convey information about action taken on your request, portions of your request that may be incomplete or require additional explanation, any notices with respect to modifications to these Terms, any notices required under applicable law and any other notices. You agree to do business electronically with Downtime Trace, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received when the email is sent to you. If you don’t consent to receive notices (other than promotional materials) electronically, you must stop using the Service.
22. Payments and Fees; Subscriptions; Automatic Renewals. Third Party Services are not eligible to be canceled based on the quality delivered by the Provider if the service was rendered as described in or as agreed between Provider and you. You may rate your experience with the Provider on the Order Page, including the overall level of service quality received.
You agree to use the Platform as your exclusive method to make payments for any Third-Party Services ordered from Providers, and not to circumvent the payment methods offered on the Platform. This non-circumvention requirement applies to all Customers, as well as all users. Without diminishing the generality of the above, you may not offer or solicit (or accept any offer or solicitation from) any parties introduced through the Platform to contract, engage with, or pay outside of the Platform. You agree to notify Downtime Trace immediately if a Provider proposes that you make payments other than through the Platform. You acknowledge and agree that a violation of this requirement is a material breach of these Terms and may lead to a permanent suspension of the violating user accounts.
You agree to receive invoices and/or payment receipts from Downtime Trace in electronic form as PDF documents, by email or through the Platform.
Payment functionality is facilitated by a third-party provider of payments services (“Payment Servicer”), including with respect to collection of funds from Customers in connection with Third-Party Services, remittance and withdrawal of funds to Providers, currency exchange services in connection with payments if applicable and withdrawals in local currencies as applicable. Downtime Trace partners with Payment Servicers for purposes of collecting payments from Customers, transferring such payments from Customers to Providers, and holding funds in connection with balances. All payments services in connection with the withdrawal of funds on the Platform are performed by Downtime Trace’s Payment Servicers. Downtime Trace is not exposed to the payment information provided to Payment Servicers, and this information is subject to the privacy policy applicable to the Payment Servicer.
Downtime Trace serves as Provider’s limited authorized payment collection agent solely for the purpose of accepting payments (via its Payment Servicers, if applicable) from Customer, and remitting those payments to Provider. Customer’s payment obligation to Provider will be satisfied upon receipt of payment by Downtime Trace (or its Payment Servicers, as applicable), and Downtime Trace (via its Payment Servicers, as applicable) is responsible for remitting the funds to the Provider. Downtime Trace may describe or otherwise reflect the terms contained herein in any terms of service, receipts, disclosures, or notices including, but not limited to, receipts provided to Customers that Downtime Trace may deem necessary or prudent.
Filing a transaction dispute or reversing a payment through your payment provider or your bank, after a Third-Party Service is accepted and delivered, is a violation of these Terms. Doing so may result in the temporary or permanent suspension of your account. Due to our obligation toward the payment provider, disputes filed after a Third-Party Service is accepted, delivered and confirmed, will not be reversable. Alternate remedies will need to be developed with support@downtimetrace.com if applicable, at Downtime Trace’s discretion.
Certain payment methods may involve the use of third-party payment service providers not affiliated with Downtime Trace. You may be subject to additional fees imposed by these payment service providers in connection with processing your payment. Downtime Trace is not responsible for any of these fees and disclaims all liability for such fees. You should review the payment service provider’s terms of use before using such payment method.
We reserve the right to change our Fees at any time in our sole discretion. We will notify you in advance, either through the Service, the Platform, or its Payment Servicers or to the email address you have most recently provided to us, if we change the Fees.
Except as prohibited by law, we or our Payment Servicers may assess a late charge if you do not pay on time. You must pay these late charges when we or our Payment Servicers bills you for them. The late charge will be the lesser of 1% of the unpaid amount each month or the maximum rate permitted by law, unless Downtime Trace or its Payment Servicers specifies a higher interest rate. We or our Payment Servicers may use a third party to collect past due amounts. You must pay for all reasonable costs we or our Payment Servicers incurs to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time
23. Miscellaneous. These Terms and your use of the Website, the Platform, the Support and the Service will be governed by and construed only in accordance with the laws of the State of Oklahoma applicable to agreements made and to be entirely performed within the State of Oklahoma, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms will be filed only in the state and federal courts located in Oklahoma. You hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms. However, you agree that Downtime Trace may apply for injunctive remedies in any jurisdiction worldwide. We both agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to these Terms. None of your rights or duties under these Terms or these Terms in their entirety may be transferred, assigned or delegated by you without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect; provided, that you may assign such rights or duties or these Terms in their entirety without such consent (a) to a corporate affiliate or (b) to a successor of all or substantially all of your assets or business to which these Terms relate in connection with a change of control, such as a merger, acquisition, or other similar transaction. We may freely transfer, assign or delegate our rights and duties under these Terms or these Terms in their entirety. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of these Terms is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify the Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. If you are an U.S. government entity or if these Terms otherwise becomes subject to the Federal Acquisition Regulations (FAR), you acknowledge that elements of the Service constitute software and documentation and provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government user as a commercial computer software subject to the restricted rights described in 48 C.F.R. 1.101 and 12.212.
24. Reports. If you believe there is a violation of these Terms and you would like to report it to us, please direct the information to Downtime Trace Support. Any reports of violations you submit to us, including your identity, may not be kept confidential. In response to your report, we may take actions in accordance with these Terms or other applicable agreements between us and the alleged violator of the Terms and may pursue other remedies available under all applicable local, state, federal or international laws, regulations, rules, orders and other requirements, now or hereafter in effect. However, we are under no obligation to respond to any reports we receive. Please note that a personal reply to reports you submit to us may not always be possible.
