RIGHT-MOBILE CONSULTANT (RMC)
TERMS OF SERVICE
Welcome to the rmc.wrightsoft.com website (the “Site”). These Terms of Service ("Terms”) govern your use of the Site and the conditions under which the Site is being made available to you. By using the Site, you will be deemed to have accepted the Terms. If you do not accept the Terms, you may not use this Site. In these Terms, "you" means the person or company using the Services; "we," “our” or "us" means Wrightsoft Corporation and its owners, directors, officers, employees, partners, agents, representatives, affiliates, contractors, service providers, and/or designees; “Licensors” means any person or entity licensing intellectual property to Wrightsoft Corporation which intellectual property may be involved in providing the Service, including without limitation Air Conditioning Contractors of America; and "Content" has the meaning given in Section 6.
1. DESCRIPTION OF SERVICE
(a) The “Service” means (i) permitting you to access the Site, (ii) processing data you submit as described on the Site from time to time, (iii) permitting you to store your processed data as provided in Section 1(c), (iv) permitting you to access your processed data for so long as you are a Registered User, (v) permitting you to download your processed data as provided in Section 1(c), (vi) if you are the registered administrator for a Right-Price module, permitting you to pre-specify pricing for replacement systems, and (vii) if you are a registered user of the Right-Price module, permitting you to access pre-specified pricing for replacement systems, and (viii) if you are a registered user of GreenOhm Data, permitting you to download available rebates for your selected equipment in your zip code.
(b) The Service may include advertisements as well as other communications, such as service announcements and administrative messages. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to these Terms. The Service is provided "AS-IS" and we assume no responsibility for the timeliness, deletion, misdelivery, failure to store user communications or personalization settings or mistakes resulting from our negligence. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
(c) As part of the Service, for so long as you are a Registered User, we will permit you to store up to 5000 RMC project files on the Site (additional storage is available at prices as posted on the Site from time to time). You may access your processed data at any time, and from time to time, so long as you are a Registered User. We reserve the right to establish or modify our general practices and limits relating to storage of data and other content. The storage and download features of the Service are provided “AS-IS”; there is no guarantee or representation regarding “up time” or accessibility. We assume no responsibility for loss, deletion, misdelivery or failure to store any of your processed data.
2. YOUR REGISTRATION OBLIGATIONS
You represent that you are at least 18 years old and are not a person barred from receiving the Services under the laws of the United States or other applicable jurisdiction. You must: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
3. MEMBER ACCOUNT, PASSWORD AND SECURITY
You may receive or create a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account designation, and are fully responsible for all activities that occur under your password or account. You must (a) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session.
4. PRIVACY POLICY; USE OF PERSONALLY IDENTIFIABLE DATA; USE OF OTHER DATA
(a) Registration Data and certain other information about you is subject to our Privacy Policy. For more information, see our full privacy policy at www.wrightsoft.com/privacy. By registering to use the Service, you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing, and use by us and our affiliates.
(b) The Site is hosted in the United States. If you are visiting from the European Union or other regions with laws governing data collection and use that differ from U.S. law, please note that you may transfer Content to the United States and by providing Content to us you represent, warrant, and covenant to us that: (i) you have the authority and right to enter into this Agreement, to grant the rights granted by you under this Agreement, and to perform your obligations under this Agreement; (ii) any consents or approvals required from any third party or governmental authority with respect to the entering into or the performance of this Agreement by such party, are in place, or will be obtained by you as may be necessary for either party to perform its obligations, (iii) you are authorized to distribute the Content to us, and (iv) you are not breaching any applicable data privacy rule or regulations, any of your contractual obligations, or any of your internal privacy policies.
(c) In addition to use sanctioned by the Privacy Policy, you grant us the unlimited right to access, distribute, copy and use any of your processed data (not including any contact information for your or your customers) for data aggregation and data mining purposes, provided that such processed data is not used or distributed in such a way that you are identified (or identifiable) as the source thereof.
5. BILLING; TAXES
You agree to pay all charges, recurring fees, applicable taxes and other charges (collectively herein "Charges") incurred by you at the rates in effect for the billing period in which those charges are incurred. We may change rates or institute new charges at any time upon 30 days prior notice; relevant information will be posted at www.wrightsoft.com/rmc or otherwise provided to you by us.
You are responsible for all charges incurred, including applicable taxes and purchases made by you or anyone who is using an authorized user account that you have caused to be created or for which you have otherwise indicated your agreement to be responsible for payment. This means that, unless your account or credit card information is obtained unlawfully or fraudulently, you will be responsible for all usage and purchases made on your card.
A service charge, up to the maximum allowed by the state you reside in, will be assessed to your Account for each check that is returned to us for insufficient funds. All payments are due in advance. If your Account is delinquent, your account (and accordingly use of the Service) may be suspended or canceled at our sole discretion. If your account is suspended, regular charges continue to accrue until you cancel your account. We may, at our sole discretion, charge a fee to reinstate a suspended Account. Interest charges of 1 1/2% per month (or the highest rate permitted by law if lower than 1 1/2% per month) will accrue daily on any unpaid balance which is more than 30 days old. You agree to pay all sales and use taxes, duties, or levies which are required by law as well as all attorney and collection fees arising from efforts to collect any unpaid balance on your account.
You agree to inform us of any billing problems or discrepancies within 90 days after they first appear on your Account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies. Additionally, if any charges are being collected by us on behalf of a supplier, then such supplier shall be an express third party beneficiary of this section.
All currency references are in U.S. dollars. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. You, and not us, are responsible for any such taxes, levies, or duties related to your transactions, excluding only our United States federal or state income taxes.
6. MEMBER CONDUCT
All information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not us, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. We do not control the Content posted via the Service and, as such, do not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You may not use the Service to:
a. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, indecent, pornographic, sexually explicit or abusive, slanderous, libelous, defamatory invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
b. harm minors in any way;
c. impersonate any person or entity, including, but not limited to, a Web site Service administrator, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Web site, or otherwise provide false or misleading statements of fact;
e. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
f. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
g. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
h. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
i. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Web site are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
j. interfere with or disrupt the Web site or servers or networks connected to the Web site, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
k. intentionally or unintentionally violate any applicable local, state, national or international law;
l. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
m. "stalk" or otherwise harass another; and/or
n. collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through m above.
We and our designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, we and our designees have the right to remove any Content that violates the Terms or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by us or submitted to us.
We may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Terms; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect our (or our users or the public's) rights, property, or personal safety.
The technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
The Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by us and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
7. INTERSTATE NATURE OF COMMUNICATIONS ON NETWORK
In using the services to send electronic communications, you will be causing communications to be sent through our and our supplier's computer networks, portions of which may be located in various states in or outside the United States. Even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. You acknowledge that use of the Service results in interstate data transmissions.
8. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you must comply with all local rules regarding online conduct and acceptable Content. Specifically, you must comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
We do not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on areas of the Site accessible to other members, you grant us the following world-wide, royalty free and non-exclusive license(s), as applicable:
(a) With respect to Content you submit or make available for inclusion on areas of the Site accessible to other members, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes for which such Content was submitted or made available.
(b) With respect to photos, graphics, audio or video you submit or make available for inclusion on areas of the Site accessible to other members, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service for the purposes for which such Content was submitted or made available.
With respect to Content other than photos, graphics, audio or video you submit or make available for inclusion on areas of the Site accessible to other members, the perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.
Certain data is collected through your use of the Service by iClunkit, LLC, d/b/a GreenOhm (“GreenOhm”). Section 10 sets out the privacy policy and terms of use applicable to portions of the Service provided by GreenOhm and to data collected by GreenOhm.
10. GreehOhm Privacy Policy and Terms of Use
GreenOhm desires to protect the privacy of its customers who use the GreenOhm tools and products offered by GreenOhm for use or sale on the Wrightsoft website (http://www.wrightsoft.com and related sites) (the “Tools”). This privacy policy and Terms of Use (collectively referred to herein as the “Terms”) are intended to provide you notice of GreenOhm’s information management practices, including the types of information gathered and how it is used and safeguarded. Your use of these Tools constitutes acceptance of the Terms. GreenOhm reserves the right to change these Terms at any time without notice, effective immediately upon posting on the GreenOhm portion of the Wrightsoft website. Please check the GreenOhm Terms periodically for updates. These Terms are effective July 16, 2012. If you do not agree to these Terms, do not use or purchase the Tools.
Collection and Our Use of Information
GreenOhm will collect no personally identifiable information about you when you use GreenOhm’s Tools unless you voluntarily choose to provide that information to GreenOhm. Any personally identifiable information that you provide to GreenOhm will be used only for such purposes as are described either in the Terms or at the point of collection, such as to respond to your questions or comments. The type of personally identifiable information GreenOhm may collect from you when you choose to provide it may include, amongst other things, your: title, name, e-mail address, phone numbers, and company name. If you provide contact information, GreenOhm or its agents may contact you to clarify your comment or question, or to learn about your level of customer satisfaction with GreenOhm’s services. If you choose to subscribe to GreenOhm’s Tools or purchase GreenOhm’s prospects, GreenOhm may collect your home address and credit card number for billing purposes. GreenOhm may use the information you give GreenOhm to help GreenOhm provide better products and service and to send you information or promotional materials if you request them.
Sharing of Information
GreenOhm may disclose personally identifiable information about you to a subsequent owner or operator of GreenOhm’s Tool if GreenOhm assigns its rights and obligations regarding any of your information at the time of a merger, acquisition, or sale of all or substantially all of GreenOhm’s assets and/or services to a subsequent owner or operator. GreenOhm may also share this information with any third parties at its discretion. You will be deemed to have consented to the disclosure to, and use by, a subsequent owner or operator or a third party, and your continued use of the Tool signifies your agreement to be bound by the Terms of the subsequent owner or operator or third party. GreenOhm may also disclose personally identifiable information to third parties in the following instances: 1) GreenOhm has been given your consent to disclose; 2) GreenOhm has previously informed you of the disclosure, including by means of our Terms; 3) GreenOhm is required by law or court order to disclose, or GreenOhm believes in good faith that the law requires it; 4) disclosure is necessary to identify, contact, or bring legal action against, someone who may cause or be causing harm to, or interference with, GreenOhm’s rights or property, other users of this Tool, or anyone else; 5) to respond to an inquiry, request or complaint that you have made; or 6) for marketing purposes or in connection with any business purposes deemed valuable by GreenOhm. GreenOhm may also use IP addresses in cooperation with internet service providers to identify users if GreenOhm deems it necessary to comply with laws, to enforce compliance with GreenOhm’s Terms, or to protect GreenOhm’s Tools, customers, or others.
Statistical vs. Personal Information
Some non-personally identifiable information is collected and stored automatically when you use GreenOhm’s Tools. This information does not identify you personally. GreenOhm’s system collects data in the server log that may include your IP address, amongst other things.
Use of Cookies
Non-personal information may also be collected with the use of cookies. "Cookies" are small text files a web site can use to recognize repeat users. When someone uses GreenOhm’s Tools, a cookie is placed on the customer's machine (only if the visitor's web browser has been set to accept cookies) or is read if the visitor has used GreenOhm’s Tools previously. GreenOhm may collect aggregated Tools usage statistics using cookies.
Security
GreenOhm will make reasonable efforts to ensure that whatever information you provide will be maintained in a secure environment. Unfortunately, no data transmission over the Internet can be guaranteed to be 100% secure. While GreenOhm strives to protect your personal information, GreenOhm cannot guarantee the security of any information you transmit to GreenOhm, and you provide such information at your own risk.
Changes to Policy
GreenOhm may, at any time, revise these policies by updating this posting. Your continued use of the Tools indicates your acceptance of all revisions and you should, therefore, periodically visit this page to review these policies for changes.
Use of the Tools
You may only visit, view and retain a copy of information from GreenOhm for your own personal use, and you agree not to copy, duplicate, alter, download, publish, modify, create derivative works, publicly display or otherwise distribute any GreenOhm Content (as defined below) for any purpose other than for personal use. The information, software, text, images, data, illustrations, files, audio and video clips, designs, documents, and other materials and content (collectively, the “GreenOhm Content”) is the property of GreenOhm or other third parties and may be protected by U.S. or other countries’ copyright laws. These Terms give you a non-exclusive, limited and revocable license to use the Tools for your own personal use only so long as you comply with all of these Terms. Any violation of these Terms exceeds the scope of that license and is prohibited. Nothing in this license shall be construed as granting you any other rights or privileges of any kind with respect to the Tools or any GreenOhm Content from GreenOhm. By using the Tools, you agree that you will (i) restrict your use of the Tools to personal use; (ii) comply with all of these Terms; and (iii) not violate the rights of GreenOhm or any other person or entity.
Your Obligations
You agree to provide or perform the following:
(a) Not to disclose, sell, transfer, assign or give any information provided though the GreenOhm Tools to any other person or organization.
(b) Comply with any and all federal, state, local and industry laws, rules, regulations and requirements up to and including licenses required in the geographic areas where you perform services.
Submissions
Except where expressly provided otherwise by GreenOhm, all comments, feedback, information or materials submitted to GreenOhm through or in association with these Tools (“Submissions”) shall be considered non-confidential and GreenOhm’s property. By providing such Submissions to GreenOhm, you agree to assign to GreenOhm, at no charge, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. GreenOhm shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. You acknowledge that you are responsible for the Submissions that you provide, and that you, not GreenOhm, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright.
Access and Interference
You agree that you will not use any robot, spider or other automatic device, process or means to (i) access the Tools or (ii) circumvent, avoid or defeat any security measures or systems used on the Tools. You will not use any manual process to monitor or copy the GreenOhm Content within GreenOhm for any unauthorized purpose. You will not use any device, software or routine that interferes with the proper functioning of the Tools, nor will you attempt to interfere with the proper functioning of the Tools. You will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Tools.
Unauthorized Use of the Tools; Violation of these Terms or Law; Equitable Relief
Any illegal or unauthorized use of the Tools shall constitute a violation of these Terms. Unauthorized uses include but are not limited to using the Tools to facilitate illegal sales, unauthorized framing of or linking to the Tools or unauthorized use of any robot, spider or other automated process using the Tools (each, an “Unauthorized Use”). Violations of these Terms may be investigated and appropriate legal action may be taken, including without limitation civil action, criminal prosecution and injunctive action. You understand and agree that in GreenOhm’s sole discretion, and without prior notice, GreenOhm may terminate and block your access to the Tools or to GreenOhm’s other services, or exercise any other remedy available, if GreenOhm believes that your conduct or the conduct of any person with whom GreenOhm believes you act in concert violates or is inconsistent with these Terms or the law, or violates the rights of GreenOhm, a client of GreenOhm, or another user of the Tools.
You agree that monetary damages may not provide a sufficient remedy to GreenOhm for violations of these Terms and you consent to injunctive or other equitable relief for such violations without the necessity of proving that monetary damages are inadequate or cannot be measured and without posting any bond or other security.
GreenOhm reserves the right, in its sole discretion, to modify, suspend or discontinue any part of the service at any time, with or without notice to you. GreenOhm also reserves the right, in its sole discretion, to impose limits on certain features and services and to restrict access to any part or all of the Tools without notice to you. GreenOhm shall not be liable to you or any third party for any claim or cause of action arising out of its exercise of the foregoing rights. GreenOhm is not required to provide any refund to you if it exercises any of its rights or remedies, including those described above, because you have violated these Terms or any of GreenOhm’s rights.
GreenOhm will not be responsible or otherwise liable for any use or disclosure of your contact information or financial information by a third party to whom GreenOhm is allowed to disclose such information under the Terms.
Copyright Policy
The GreenOhm Content within the GreenOhm website and Tools is the property of GreenOhm and may be protected by copyright and other restrictions. Copyrights and other proprietary rights in the GreenOhm Content from GreenOhm may also be owned by parties other than GreenOhm. You may not copy, modify, distribute or otherwise use any of the GreenOhm Content from the Tools, except for your personal and non-commercial use. You may not use or frame GreenOhm’s name, trademark or logo, images posted, the GreenOhm Content of any text, the design of any page, any form contained on a page or other proprietary materials without GreenOhm’s prior written consent. GreenOhm may withdraw any GreenOhm Content from the Tools at any time in its sole discretion. GreenOhm will terminate the privileges of any user who uses the Tools to unlawfully transmit copyrighted material without a license, express consent, valid defense or fair use exemption to do so.
Trademarks
The names, titles, trademarks, service marks and logos (collectively, the “Trademarks”) displayed on the GreenOhm Tools and website may be registered or unregistered common law trademarks of GreenOhm or third parties. Nothing contained in the Tools or on the website grants any license or right to use any Trademark without the prior written consent of GreenOhm or the appropriate third party that owns the Trademark. Any unauthorized use of the Trademarks or any other images or content of GreenOhm is prohibited.
Release and Waiver
By using the Tools, you fully waive and release GreenOhm and GreenOhm’s members, managers, partners, affiliates, officers, subsidiaries, employees, agents, representatives, suppliers, licensees, and distributors from any and all claims, demands, losses and damages of every kind and nature, whether known or unknown, arising out of or in any way connected with the GreenOhm, your use of the Tools, other users’ use of the Tools and any dispute you have or claim to have against GreenOhm and its affiliates or one or more users of the Tools.
You acknowledge that you may have or may in the future have claims against GreenOhm which you do not know or suspect to exist in your favor when you agreed to these Terms and which if known, might materially affect your consent to these Terms. You expressly waive all rights you may have under Section 1542 of the California Civil Code, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in its favor at the time of executing the release, which if known by it must have materially affected its settlement with the debtor.”
General Disclaimers
GREENOHM ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR (I) ANY ERRORS OR OMISSIONS IN THE CONTENT GENERATED FROM THE TOOL, OR (II) DAMAGE TO OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR USE OF THE SITE OR YOUR COPYING OR DOWNLOADING OF ANY TEXT, IMAGES OR OTHER CONTENT FROM THE TOOL.
No Warranties
ALL GREENOHM DATA IS OFFERED ON A STRICTLY “AS IS” BASIS. GREENOHM DOES NOT GUARANTEE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS OR COMPLETENESS OF THE DATA AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE. INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE. YOU EXPRESSLY AGREE THAT GREENOHM SHALL NOT BE LIABLE FOR LOSSES, DAMAGES, OR INJURIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO GENERAL, DIRECT, SPECIAL, INCIDENTAL, AND/OR CONSEQUENTIAL DAMAGES CAUSED IN WHOLE OR IN PART BY THE USE OF THE DATA WHETHER SUCH DAMAGES ARE ASSERTED IN AN ACTION BROUGHT IN CONTRACT, IN TORT, OR PURSUANT TO ANY OTHER THEORY OF LAW OR OTHERWISE, AND WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE. GREENOHM DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTY USERS, RETAILERS AND/OR ADVERTISERS ON ANY WEBSITE CONTAINING GREENOHM’S TOOLS, IN CONNECTION WITH GREENOHM’S SERVICES OR OTHERWISE RELATED TO YOUR USE OF THE TOOL AND GREENOHM’S SERVICES. GREENOHM IS NOT RESPONSIBLE FOR THE PRODUCTS, SERVICES, ACTIONS OR FAILURE TO ACT OF ANY RETAILER OR THIRD PARTY IN CONNECTION WITH GREENOHM’S SERVICES. SHOULD THIS LIMITED WARRANTY FAIL OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL GREENOHM’S ENTIRE LIABILITY EXCEED THE TOTAL AMOUNT YOU PAID TO GREENOHM UNDER THIS AGREEMENT. THE INFORMATION WAS OBTAINED BY GREENOHM FROM SOURCES DEEMED TO BE RELIABLE INCLUDING BUT NOT LIMITED TO PUBLIC RECORDS, HOWEVER, GREENOHM MAKES NO RESPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF THE INFORMATION PROVIDED HEREUNDER AND GREENOHM DOES NOT OFFER ANY REFUNDS IN CONNECTION WITH ANY TRANSACTIONS HEREUNDER.
Severance and Waiver
In the event any provision of these Terms is held by a court to be invalid, unlawful or unenforceable, the validity, legality and enforceability of the remaining provisions contained in these Terms will not in any way be affected or impaired. GreenOhm’s failure to exercise or enforce any right or provision under these Terms will not constitute a waiver of such right or provision by GreenOhm, and no single or partial exercise by GreenOhm of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy.
Governing Law, Venue and Jurisdiction
These Terms are governed by the laws of the State of Illinois, without regard to its conflicts of laws principals. Any case, controversy, suit, action, or proceeding arising out of, in connection with or related to these Terms shall be brought in a federal or state court located in Cook County, Illinois, and you hereby waive any objection to the exclusive jurisdiction of such courts. You hereby consent and submit to the jurisdiction of any local, state, or federal court located within said county and state. You hereby waive any right or basis you may otherwise have to transfer or change or object to the venue of any litigation arising out of, in connection with or related to these Terms in accordance with this paragraph.
Indemnity
You agree to indemnify and hold GreenOhm and its affiliates, and each of GreenOhm’s and its affiliates’ respective managers, members, officers, agents, employees, contractors and principals, harmless from any loss, liability, claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of your use of the Tools.
Entire Agreement
You agree that these Terms constitute the entire agreement between you and GreenOhm with respect to your use of the Tools. You agree that these Terms supersede any other agreements between you and GreenOhm with respect to your use of the Tools.
11. INDEMNITY
You agree to indemnify and hold harmless us and our subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, consultant and agents, and the Licensors, from any claim or demand (including reimbursing us any reasonable attorneys' fees incurred by us in the defense of any such claim or demand), made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the Terms, or your violation of any rights of another. We retain the right to retain counsel of our choosing in our sole discretion. Furthermore, you must cooperate in good faith to assist us and the Licensors in our defense and any settlement negotiations related thereto, and to reimburse us and the Licensors for reasonable settlement amounts, if any.
12. NO RESALE OF SERVICE
You are being granted a limited right to use the Service and the Software. You may not reproduce, duplicate, copy, sell, trade, resell, sublicense or exploit for any commercial purposes, any portion of the Service (including your account name) or the Software, use of the Service or the Software, or access to the Service or the Software.
13. GENERAL PRACTICES REGARDING USE AND STORAGE
We may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that uploaded Content will be retained by the Service, the maximum disk space that will be allotted on our servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. We have no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. We may modify these general practices and limits from time to time in our sole discretion.
14. MODIFICATIONS TO SERVICE
We may at any time and from time to time modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. We shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
15. TERMINATION
We may, under certain circumstances and without prior notice, immediately terminate your account and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the Terms or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you, (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) you have engaged in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services. Termination of your account includes (a) removal of access to all offerings within the Service, including but not limited to your processed data which is stored on the Site, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring further use of the Service. Further, all terminations for cause shall be made in our sole discretion and we shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Service.
16. DEALINGS WITH THIRD PARTIES
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. We shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service. The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. We are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. We are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
17. OUR PROPRIETARY RIGHTS
The Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as specifically provided in this Agreement, all intellectual property rights embodied in the Service or the Software or any materials upon which the Service and/or Software are based are reserved to the owners thereof, including us and the Licensors.
You may not access the Service by any means other than through the interface that is provided by us for use in accessing the Service.
In the event that we do provide you with Software (such as a plug-in or similar item), we grant you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer in connection with your access to the Service; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You may not modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You may not rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part.
18. WARRANTIES; DISCLAIMER OF WARRANTIES
(a) Notwithstanding anything in these Terms to the contrary, if you are dissatisfied with the Service for any reason, you may so notify us in writing within thirty (30) days of the date you become a Registered User, in which case we will immediately terminate your right to access the Service and refund all amounts paid with respect to the then-current term.
(b) EXCEPT AS PROVIDED IN SECTION 18(a) ABOVE, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE, ON BEHALF OF OURSELVES AND THE LICENSORS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(c) WE MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(d) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
(f) YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THAT DATA UPLOADED INTO THE SERVICE, INCLUDING WITHOUT LIMITATION PRICING DATA ENTERED INTO THE RIGHT-PRICE MODULE, IS PROPERLY REFLECTED IN THE SERVICE, AND YOU RELEASE US FROM ALL LIABILITY AS A RESULT OF ANY MISTAKE OR IMPROPER PROCESSING OF ANY SUCH DATA.
(g) Except as provided in Section 17(a), all payments are non-refundable, and no refunds will be due to you for any reason, even if, without limitation, you are not satisfied with the Service, you are not able to access the Service, the Service changes, or we freeze, change, or terminate your membership.
19. LIMITATION OF LIABILITY
NEITHER WE NOR THE LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO: DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); AND/OR DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE, (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. IF, NOTWITHSTANDING THE ABOVE, THE DISCLAIMER OF LIABILITY SET OUT ABOVE IS NOT ENFORCEABLE, OUR AGGREGATE LIABILITY, TOGETHER WITH THE LICENSORS’ AGGREGATE LIABILITY, TO YOU FOR ALL CASES AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS.
20. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF MAY NOT APPLY TO YOU.
21. NO THIRD PARTY BENEFICIARIES
Except with respect to the Licensors and GreenOhm, and as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to these Terms.
22. NOTICE
We may provide you with notices, including those regarding changes to the Terms, by either email, regular mail, or postings on the Service. Any notice you desire to send to us must be sent exclusively by submitting an electronic message through the Contact section of the www.wrightsoft.com website (and selecting the appropriate category for your message), unless explicitly instructed to do otherwise in the Terms.
23. TRADEMARK INFORMATION
Wrightsoft®, Right-Suite® Universal, Right-Roadshow®, Right-J®, Right-J® Mobile, Right-Mobile Consultant™, Right-Draw®, Right-D®, Right-$™, Right HV™ Duct, Right-Duct™ Free, Right-Contact®, Right-2Line™, Right-Radiant®, Right-Loop™, Right-F280™, Right-SolarDHW™, Right-Proposal®, Right-Consultant™, Right-Sales®, Right-CommLoad®, Right-CommDuct™, Right-Comm2Line™, Right-Catalog®, Right-CAD®, Right-Tools™, Right-Psychrometrics™, Right-Energy®, Right-Price™, Right-CommVentilation™, Right-DuctFree™, Right-Energy Florida™, Right-Tools™, Right-N®, Right-University™, Right-Ventilation™, Fla-J Link™, Hotlink Technology™, HVAC Controls™, HVAC Shapes™, and Layered Materials Technology™ are our trademarks and service marks (the “Marks”). You may not display or use the Marks, or any trademarks or service marks of any Licensor, in any manner without our permission.
24. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who may be repeat infringers. 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 our Copyright Agent the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the site;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Our Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail: Wrightsoft Corporation, 131 Hartwell Avenue, Lexington, MA 02421
To: Mrs. Jane E. Schuler
By phone: 1-781-862-8719
By fax: 1-781-861-2058
By email: jschuler@wrightsoft.com
25. GENERAL INFORMATION
Entire Agreement. The Terms (including the Privacy Policy, which is incorporated by reference) constitute the entire agreement between you and us and governs your use of the Service, superseding any prior agreements between you and us with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, affiliate services, third-party content, or third-party software.
Choice of Law and Forum. The Terms and the relationship between you and us shall be exclusively governed by the laws of the United States and the Commonwealth of Massachusetts without regard to its conflict of law provisions. Your exclusive forum for bringing any claim or cause of action against us is the courts located in the City of Boston, Massachusetts U.S.A. You hereby accept and submit to the personal and exclusive jurisdiction of such courts in any proceeding or action. With respect to any such proceeding or action brought in such courts, you hereby irrevocably waive, to the fullest extent permitted by law: (a) any objection you may have now or in the future to such jurisdiction or venue, and (b) any claim that such action or proceeding has been brought in an inconvenient form. Nothing limits our right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or any other form of relief.
Arbitration. Notwithstanding anything herein, if we elect in our sole discretion to resolve any claim through arbitration, you must cooperate fully with and be bound by such arbitration, without further recourse of any kind. The American Arbitration Association (“AAA”) shall preside over such arbitration. Such arbitration shall be exclusively governed by the laws of the United States and the Commonwealth of Massachusetts without regard to its conflict of law provisions. All proceedings shall take place in the City of Boston metropolitan area. If there is a conflict between the rules of the AAA and any provision of the Terms, the Terms shall govern. You are responsible for all costs that you incur in the arbitration, including without limitation, expert witnesses or attorneys. The reasonable filing fees and arbitrator’s costs and expenses shall be advanced by us. However, if the arbitration is decided in our favor, you must reimburse us for all of our fees, costs, and expenses related to the arbitration, including without limitation, all fees, costs, and expenses related to filing, arbitrators, expert witnesses, attorneys, and other third parties.
Waiver and Severability of Terms. Our failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
No Right of Survivorship and Non-Transferability. Your account is non-transferable and any rights to your account or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
|