Downtime Trace LLC
Platform Access Agreement – Providers [Third Party Repair Service Providers, Procurers, Contractors]
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 the ISOs, OEMs, and gig technicians (collectively, “Providers”) who are using the app to provide services, repairs, or replacement parts.
This Platform Access Agreement (this “Agreement”) is by and among the following entity applicable: Downtime Trace LLC (“Downtime Trace”, “we” “our” and “us”) and, (a) if you are accepting this Agreement on behalf of a company (the “Provider”) in the business of providing for-hire equipment repair and part procurement services (“For-hire Service”), such Provider, and/or (b) if you are a principal, employee or contractor, or otherwise operating under the authority of, such Provider that provides For-hire Service and is authorized to accept the relevant portions of this Agreement, then you are accepting the relevant portions of this Agreement as a Contractor (a “Contractor”). For the sake of clarity and depending on the context, references to “you” or “your” mean the Provider and/or, depending on the context, your Contractors individually.
By creating an account, you agree to the terms of this Agreement. This Agreement constitutes a legally binding agreement between you and Downtime Trace governing your use of Downtime Trace’s service and procurement marketplace platform that, amongst other things, facilitates For-hire Service between you and account holders/registered users seeking to access and potentially purchase certain types of For-hire Service (“Customers”); as well as websites and all other associated services, including payment and support services, provided by Downtime Trace, its affiliates or third parties (“Platform”) and any related content or services, including but not limited to mobile and/or web-based applications (“Applications” or the “App,” and together with the Platform, the “Services”). By accepting this Agreement, you confirm that you have read, understand and accept the provisions of this Agreement and intend to be bound by this Agreement. This Agreement is effective as of the date and time you accept it.
The Platform may only be used by individuals who have the right and authority to enter into this Agreement and are fully able and competent to satisfy the terms, conditions, and obligations herein. The Platform is not available to those individuals or entities who have had their User account temporarily or permanently deactivated. You may not allow others to use your User account, you agree that you are the sole authorized user of your User account, and you may not use your User account on behalf of any third party, except as otherwise expressly permitted by Downtime Trace. Your participation in certain Downtime Trace programs and use of certain Downtime Trace services may be subject to additional eligibility requirements as determined by Downtime Trace and its third-party credentials verifiers.
This Agreement governs your access to our Platform which facilitates your provision of For-hire Service, to for themselves and/or their guests. We reserve the right to change or modify this Agreement and any policies or guidelines governing your use of the Platform, at any time in our sole discretion. Your continued use of the Platform following the posting of such changes or modifications constitutes your acceptance thereof. Therefore, you should frequently review this Agreement and all applicable policies or guidelines in order to understand the terms and conditions applicable to your use of the Platform. If you do not agree to any changes or modifications to this Agreement or to any applicable policies or guidelines, your sole recourse is to stop using the Platform.
1. Relationships.
1.1. Your/Provider’s Relationship with Downtime Trace
The relationship between you and Downtime Trace is solely as independent business enterprises, each of whom operates a separate and distinct business enterprise that provides a service outside the usual course of business of the other. This is not an employment agreement and you are not an employee of Downtime Trace. You confirm the existence and nature of that contractual relationship each time you access our Platform. We are not hiring or engaging you to provide any service; you are engaging us to provide you access to our Platform. Nothing in this Agreement creates, will create, or is intended to create, any employment, partnership, joint venture, franchise, or sales representative relationship between you and us. The parties do not share in any profits or losses. You have no authority to make or accept any offers or representations on our behalf. You are not our agent and you have no authority to act on behalf of Downtime Trace.
We do not, and have no right to, direct or control you. Subject to Platform availability, you decide when, where and whether (a) you want to offer For-hire Service facilitated by our Platform and (b) you want to accept, decline, ignore or cancel a Repair (defined below) request; provided, in each case, that you agree to provide the Repairs consistent with the Requirements (defined below). Subject to your compliance with this Agreement, you are not required to accept any minimum number of Repairs in order to access our Platform and it is entirely your choice whether to provide For-hire Service to Customers directly, using our Platform, or using any other method to connect with Customers, including, but not limited to other platforms and applications in addition to, or instead of, ours. You understand, however, that your Customers’ experiences with your Repairs, as determined by Customer input, may affect your ability to access our Platform or provide Repairs.
1.2 Your Relationship with Your Contractors. You will ensure that your Contractors understand and comply with the obligations set forth in this Agreement, including without limitation those set forth in Section 2. You have the sole responsibility for any obligations or liabilities to your Contractors that arise from your relationship with them (including any obligations or liabilities relating to the provision of For-hire Services). You acknowledge and agree that you exercise sole control over your Contractors and will comply with all applicable laws (including tax, social security and employment laws) governing or otherwise applicable to your relationship with your Contractors. You acknowledge and agree that you are at all times responsible and liable for the acts and omissions of your Contractors, including their interaction with us or any third party, even where such vicarious liability may not be mandated under applicable law.
2. The Downtime Trace Platform.
2.1. General. While using our App, you may receive certain services that enable those operating independent business enterprises like you to provide For-hire Service requested by Customers (“Repairs”). Subject to the terms and conditions of this Agreement, Downtime Trace hereby grants you a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use our Platform (including the App) solely for the purpose of providing Repairs and accessing services associated with providing Repairs.
2.2. Compliance
2.2.1.You are responsible for identifying, understanding, and complying with (i) all laws, rules and regulations that apply to your provision of Repairs (including whether you are permitted to provide For-hire Service at all) in the jurisdiction(s) in which you operate (your “Region”) and (ii) this Agreement (collectively, the “Requirements”). Subject to applicable law, you are responsible for identifying and obtaining any required credentials (including ensuring your Contractors have the appropriate credentials to provide For-hire Services in their Region), permits, or registrations required to provide any For-hire Service that you provide using our Platform. Notwithstanding anything to the contrary in this Agreement, for the avoidance of doubt, your ability to access and use our Platform is at all times subject to your compliance with the Requirements. You agree not to access or attempt to access our Platform if you are not in compliance with the Requirements.
2.2.2. You represent, warrant, and covenant that:
2.2.2.1. you have all required authority to accept and be bound by this Agreement, and
2.2.2.2. entering into this Agreement will not breach, violate or conflict with (a) any other agreement or arrangement, (b) any duty or obligation of confidentiality, non-use, trust, or confidence, or (c) any other duty or obligation of yours, in each case with or to any third party.
2.2.3. If you are accepting this Agreement on behalf of your company, entity, or organization, you represent and warrant that you are an authorized representative of that company, entity, or organization with the authority to bind such party to this Agreement.
2.3. Your Provision of For-hire Services to Customers. You represent, warrant and covenant that (a) you have all the necessary expertise and experience to provide Repairs in compliance with the Requirements and standards applicable to the For-hire Service, (b) your access and use of our Platform, and provision of For-hire Service, in your Region is permitted by the Requirements, and (c) all such access and use of our Platform will be in compliance with the Requirements. You are responsible for, and bear all costs of, providing all equipment, tools and other materials that you deem necessary or advisable and are solely responsible for any obligations or liabilities arising from the Repairs you provide.
2.4. Accessing the Downtime Trace Platform. To provide Repairs you must create and register an account for your Provider with each Contractor whom you decide may receive Repair requests through our Platform. All information you provide to us must be accurate, current and complete and you will maintain the accuracy and completeness of such information during the term of this Agreement. Unless otherwise permitted by us in writing, you agree to only possess one account per account type available to you for providing Repairs, provided that Providers may have multiple user accounts under a Provider umbrella as permitted by Downtime Trace. You are responsible for all activity conducted on your account. For account security purposes, you agree not to share or allow anyone to use your login credentials to access our Platform. If you think anyone has obtained improper access to your account, login credentials or personal information, you are required to notify us and to change your password immediately so that we may take appropriate steps to secure your account. You agree that Downtime Trace is not responsible for any losses arising from your sharing of account credentials with a third party, including, without limitation, phishing.
2.5. Credentials and Background Checks. During your account creation and registration, we will collect, and may verify, certain information about you and your Contractors. Certain third party background checks or credentials confirmation may be required from you and your Contractors. You hereby agree to provide copies of such information upon request and authorize and instruct us to provide copies of such information to any relevant regulators, insurers, or governmental authorities as needed for safety or other reasons as permitted by our Privacy Policy.
2.6. Pursuing Repair Quote Requests.
2.6.1. Customer repair quote requests (“Trace Tickets”) may appear in the App and you may submit responsive quote bids or ignore them. Responding to a Trace Ticket may create a direct business relationship between you and your Customer in accordance with the terms of the service the Customer has requested through our Platform. You acknowledge upon submission of a Repair Quote, Provider may incur fees as described in the App.
2.6.2. You may receive Customer information, including approximate location, and you agree that your Customer may also be given identifying information about you, including your name, credentials, and certain other information you have voluntarily provided through the App (collectively, “User Information”). Without a Customer’s consent, you agree to not contact any Customer or otherwise use any of the Customer’s User Information except solely in connection with the provision of Repair quotes and Repairs to that Customer. You agree to treat all Customer User Information as Confidential Information (defined below) received by you under this Agreement. You acknowledge that your violation of your confidentiality obligations may also violate certain laws and could result in civil or criminal penalties.
2.6.3. Only Companies who are pre-matched for the applicable Repair are qualified to receive the Trace Tickets. Bids for Repairs must be made in a standard bid format, which must contain: (i) an estimate of what the Repair problem and solution likely is, (ii) when Repair can begin (including estimated onsite arrival time), and (iii) the amount such Repair is expected to cost. Customers may choose a Repair bid based on the profile of such Provider, availability, response time, price, etc.
2.6.4. Although appointments between Customer and a Contractor or Provider may be made and/or cancelled via the Platform, rescheduling is the responsibility of the Contractor or Provider; Downtime Trace shall not be responsible for your delayed, missed or canceled appointments or Repairs.
2.6.5. You may not accept payments or terms for a Trace Ticket or Repair from a Customer using any method other than by placing a bid and otherwise billing for the Repair through the App.
2.6.6. You must fulfill accepted Repair bids, and may not cancel accepted Repair bids without reasonable cause, provided that, before you accept, Downtime Trace or Customer may cancel the Trace Ticket without cost or penalty, or, in certain circumstances, Downtime Trace or the Customer may cancel the Repair. Cancelling Repair bids may affect your reputation and rating. You are required to meet the delivery time specified in your Repair bid or as otherwise agreed with the Customer via the App. Failing to do so may allow the Customer to cancel the Repair if you are marked as late and may harm your rating.
2.6.7. You will only be accredited by Downtime Trace for payment once the Repair is completed. You must send reasonable proof of work when marking the Repair as “Completed.” Fraudulently marking a Repair as completed may result in a cancellation of that Repair and related payment after review, affect your rating and result in a warning to Provider.
2.6.8. Requesting or providing email addresses, third party messaging applications, telephone numbers or any other personal contact details to communicate outside of the App in order to circumvent or abuse the App or Platform is not permitted. Any necessary exchange of personal information required to continue a service may be exchanged within the App. All information exchanges must be performed exclusively within the App.
2.7. Ratings.Your Customers may be asked to comment on your services. These comments can include star or other ratings and other feedback (collectively, “Ratings”), which we ask all parties to provide in good faith. Ratings are not confidential and you hereby authorize our use, distribution and display of your Ratings (and Ratings about you) as provided in our Privacy Policy, without attribution or further approval. We have no obligation to verify Ratings or their accuracy, and may remove them from our Platform in accordance with the standards in our Community Guidelines. You may not solicit the removal of feedback reviews from Customers through mutual cancellations.
2.8. Communication Consents.
2.8.1. You agree that we may contact you by email, telephone or text message (including by an automatic telephone dialing system) at any of the phone numbers provided by you, or on your behalf, in connection with your account.
2.8.2. You hereby represent and warrant that (a) you have provided all notices and obtained all rights, consents and permissions (collectively, “Consents”) necessary to provide us with personally identifiable information of any Contractor provided by you to us hereunder or otherwise in connection with this Agreement; (b) you have obtained all Consents from each Contractor necessary to enable us to send SMS messages or to otherwise contact each such Contractor, and (c) you are in compliance, and will remain in compliance during the term of the Agreement, with all Requirements relating to data protection, privacy, identity theft, data breach, consumer protection, and data security.
2.9. Your Information; Feedback. We may collect and disclose information from or about you when you create an account, interact with our Platform or provide Repairs and as otherwise described in our Privacy Policy. Notwithstanding anything herein to the contrary (a) the collection, use, and disclosure of such information will be made in accordance with our Privacy Policy and (b) if you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with, or related to, us or our Platform, we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
3. Insurance and Indemnity.
Before commencing the work, the Subcontractor shall procure and maintain, at its own expense, until complete and final acceptance of the work under the subcontract the following insurance by an insurance company with an A.M. Best Rating of A-VII or better. If the insurance company becomes downgraded by A.M. Best to a rating less than A-VII, the Subcontractor is to replace the insurance at the financial responsibility of the Subcontractor.
Prior to starting the Subcontract Work, the Subcontractor shall procure and maintain in force statutory worker’s compensation insurance for all Subcontractor’s employees at the Project site, employers’ liability insurance, commercial general liability insurance and automobile liability insurance and such other insurance, to the extent required by the Contract Documents for the Subcontract Work. Unless otherwise provided in this Subcontract, the Subcontractor’s commercial general and automobile liability insurance, as required by this provision, shall be written for not less than the limits of liability set forth.
3.1. Additional Insured. Downtime Trace, LLC, Owner and General Contractor will be named by policy endorsement as Additional Insureds on the General Liability, Auto and Umbrella Policies. This additional insured status will be primary and non-contributory to any other insurance.
3.2. Subrogation. Subcontractor waives any claim in its favor by way of subrogation, or otherwise, for any and all losses, injury, claims, causes of action, damages, or expenses, which are covered by Subcontractor’s policies of insurance, except such rights as Subcontractor may have to the proceeds of such insurance. Subcontractor agrees to obtain endorsements of all policies to prevent invalidation bases on this waiver.
3.3. Proof of Insurance. Prior to starting the Subcontract Work, the Subcontractor shall deliver to Downtime Trace, LL the policy of General Liability Insurance and an original Accord-25 certificate of insurance acceptable to Downtime Trace LLC which evidences the coverages, and the endorsements required herein. If Subcontractor subcontracts any portion of the Subcontract Work, Subcontractor shall deliver to Downtime Trace, LLC for each of Subcontractor’s sub-subcontractors or employee leasing companies, an original accord certificate of insurance, which evidences the coverages and endorsements, required herein. You shall, upon Downtime Trace’s request, provide Downtime Trace with a copy of such insurance certificate(s) within seven (7) days of such request and shall maintain the insurance policies required and described throughout Section 3, at all times during the term of this Agreement.
3.4. Subcontractor’s Commercial General Liability Insurance. The commercial general liability policy shall contain contractual liability endorsement, an endorsement listing Downtime Trace LLC, Owner, and General Contractor and any others required as Additional Insureds using Endorsements No. CG 2010 04 13 or newer. Commercial general liability insurance written for not less than the following limits of liability: (i) bodily injury, $1,000,000.00 each occurrence, $2,000,000.00 aggregate and (ii) property damage, $1,000,000.00 each occurrence, $2,000,000.00 aggregate; or the limits set forth in the specifications of the Contract Documents (whichever limits are greater). Coverage to be kept in force for three years after final completion.
3.5. Worker’s Compensation. You will maintain Worker’s Compensation and Employers Liability Insurance, with limits, in accordance with the laws of the State in which the work is situated. If allowed by applicable law, you can insure yourself against industrial injuries by maintaining occupational accident insurance for you and your Contractors in place of workers’ compensation insurance (and it is at your own risk if you decide not to). If allowed by applicable law, your subcontractors may also insure themselves against industrial injuries by maintaining occupational accident insurance for themselves in place of workers’ compensation insurance (and it is at their own risk if they decide not to). The policy shall contain a waiver of subrogation endorsement in favor of Downtime Trace, LLC and its employees.
3.6. Automobile Liability Insurance. Automobile Liability Insurance, covering all owned, non-owned and hired automobiles used in connection with the work, with the minimum Combined Single Limits of $1,000,000.00 or as set forth in the specifications of the Contract Documents (whichever limit is greater).
4. Payments.
4.1. Revenue. For each Repair you successfully complete, your account will be credited with revenue as agreed with the Customer within the App, less any applicable fees or rates listed within the App. Downtime Trace accredits Providers once a Repair is completed, or upon such other milestone as agreed between you and the Customer within the App. If a Repair is canceled (for any reason), the funds paid will be returned to the Customer’s balance within the App. If a Customer files a claim against you based on your Repairs, funds in your account may be debited or withheld until or as a result of such matters’ resolution.
4.2. Taxes. Providers are responsible for paying any direct or indirect taxes, including any GST, VAT or income tax, which may apply to them depending on residency, location or otherwise, under provisions of their jurisdiction. Providers represent and warrant that they comply, and will comply at all times, with their obligations under income tax provisions in their jurisdiction. The quote submitted via the App, or otherwise agreed between Provider and Customer, is inclusive of all such taxes and charges that may apply to the Providers.
4.3. Third-Party Provider. 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 Repairs, remittance and withdrawal of funds to Providers, currency exchange services in connection with payments if applicable and withdrawals in local currencies as applicable. To receive payment, you are subject to any additional terms and conditions for payment imposed by the Payment Servicer, which we recommend you review. 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 payment 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.
4.4. Appointment as Limited Payment Collection Agent. Provider hereby appoints Downtime Trace 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. Provider agrees that payment from Customer to Downtime Trace shall be considered the same as if made directly 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 in the manner described in this Agreement. In the event that Downtime Trace (via Payment Servicers) does not remit any such amounts to Provider, the Provider will have recourse only against Downtime Trace and not the Customer directly. Provider agrees that 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.
5. Term and Termination; Effect; Survival.
5.1. Term.This Agreement is effective as of the date and time you accept it and will continue until terminated by you or us.
5.2. Termination by You. You may terminate this Agreement (a) without cause at any time upon thirty (30) days’ prior written notice to Downtime Trace; and (b) immediately, without notice for Downtime Trace’s violation or alleged violation of a material provision of this Agreement.
5.3. Deactivation. You consent to and we may temporarily deactivate your account without notice to investigate whether you have engaged in, or your account has been used in, activity that is deceptive, fraudulent, unsafe, illegal, harmful to our brand, business or reputation, or that violates this Agreement (including the policies incorporated herein by reference) (any of the foregoing, a “Material Breach or Violation”). You also consent to and we may terminate this Agreement or permanently deactivate your account without notice if we determine in our discretion that a Material Breach or Violation has occurred.
5.4. Effect of Termination and Survival. Upon termination, each party will remain responsible for its respective liabilities or obligations that accrued before or as a result of such termination. Sections 1, 2.8.2, 4, 5.4, 6-9, 12, 13 and 14 shall survive any termination or expiration of this Agreement.
6. DISCLAIMER OF WARRANTIES.
THE PLATFORM, THE APP, THE SERVICE, SUPPORT, AND ANY OTHER SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM, 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 PLATFORM, THE APP, OR ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM 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 PLATFORM, 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 PLATFORM, THE APP, AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM 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 DELIVERIES PROVIDED IN CONNECTION WITH THIS AGREEMENT; AND (F) THAT THE PLATFORM, THE APP AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM 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.
7. 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 PLATFORM, THE APP, 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 PLATFORM, THE APP, AND ANY SERVICE INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE PLATFORM 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 PLATFORM OR THE APP, AND (B) $100. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT 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.
8. 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 App, the Materials, the Support and/or the Service; (b) your gross negligence or willful misconduct; (c) any breach by you of this Agreement (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 App.
9. 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 this Agreement 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 this Agreement or through the Service.
10. Third Party Services.
From time to time we may permit third parties to offer their services to users of our Platform. Third-party services may be subject to additional terms (including pricing) that apply between you and the party(ies) providing such services. If you choose to access the third-party services you understand that the providers of the third-party services are solely responsible for liabilities arising in connection with the access and use of such third-party services. While we may allow users to access such services through our Platform and we may collect information about our users’ use of such services, we may not investigate, monitor or check such third-party services for accuracy or completeness.
11. 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.
12. Intellectual Property
We reserve all rights not expressly granted in this Agreement. The App, our Platform, 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. Neither this Agreement nor your use of Downtime Trace’s or our licensors’ company names, logos, products or service names, trademarks, service marks, trade dress, other indicia of ownership, or copyrights (“DT Names, Marks, or Works”) or the Platform IP conveys or grants to you any rights in or related to the Platform IP, or related intellectual property rights, including DT Names, Marks, or Works, except for the limited license granted above. You shall not, and shall not allow any other party to: (a) license, sublicense, copy, modify, distribute, create, sell, resell, transfer, or lease any part of the Platform IP; (b) reverse engineer or attempt to extract the source code of our software, except as allowed under law; (c) use, display, or manipulate any of DT Names, Marks, or Works for any purpose other than to provide Repairs; (d) create or register any (i) businesses, (ii) URLs, (iii) domain names, (iv) software application names or titles, or (v) social media handles or profiles that include DT Names, Marks, or Works or any confusingly or substantially similar mark, name, title, or work; (e) use DT Names, Marks, or Works as your social media profile picture or wallpaper; (f) purchase keywords (including, but not limited to Google AdWords) that contain any DT Names, Marks, or Works; (g) apply to register, reference, use, copy, and/or claim ownership in DT Names, Marks, or Works, or in any confusingly or substantially similar name, mark, title, or work, in any manner for any purposes, alone or in combination with other letters, punctuation, words, symbols, designs, and/or any creative works, except as may be permitted in the limited license granted above; (h) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any part of our Platform or data; or (i) aggregate Downtime Trace’s data with competitors.
13. Miscellaneous.
This Agreement and your use of the Platform, the App, 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 this Agreement 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 this Agreement. 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 this Agreement. None of your rights or duties under this Agreement nor this Agreement in its 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 this Agreement 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 this Agreement relates 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 this Agreement or this Agreement in its entirety. Subject to the foregoing, this Agreement 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 this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement 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 Agreement 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.
14. Reports.
If you believe there is a violation of this Agreement 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 this Agreement or other applicable agreements between us and the alleged violator of the Agreement 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
