ASSIGNAR ESTIMATING AND OPERATIONS TERMS OF USE

THESE TERMS AND CONDITIONS (“TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND COMPANY.  IF YOU ARE LOCATED IN THE UNITED STATES OR CANADA, “COMPANY” MEANS ASSIGNAR INC., A DELAWARE COMPANY.  IF YOU ARE NOT LOCATED IN THE UNITED STATES OR CANADA, “COMPANY” MEANS ASSIGNAR, PTY LTD., AN AUSTRALIAN COMPANY.  COMPANY IS ALSO REFERRED TO HEREIN AS “WE” OR “US”.

THESE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT HTTPS://DASHBOARD.ASSIGNAR.COM/.  UNLESS OTHERWISE SPECIFIED, ALL REFERENCES TO “SITE” INCLUDE THE CONTENT AND SERVICES AVAILABLE THROUGH THIS SITE (THE “SERVICES”), ANY APIs AND ANY SOFTWARE THAT COMPANY PROVIDES TO YOU THAT ALLOWS YOU TO ACCESS THE SITE FROM A MOBILE DEVICE (A “MOBILE APPLICATION”) BY COMPANY AND ITS AFFILIATES.  BY USING THE SITE, YOU ARE AGREEING TO THESE TERMS.  IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SITE.

NOTE:  IF YOU ARE LOCATED IN THE UNITED STATES OR CANADA, THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY.  YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.  IF YOU ARE NOT LOCATED IN THE UNITED STATES OR CANADA, PLEASE REFER TO THE SECTION TITLED “DISPUTE RESOLUTION – ARBITRATION – USERS OUTSIDE OF UNITED STATES AND CANADA” FOR DETAILS OF THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS THAT APPLY TO YOU.

Changes.

Company may make changes to the content and services offered on the Site at any time. Company can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Site.  By using this Site after Company has updated the Terms, you are agreeing to all the updated Terms.  If you do not agree with any of the updated Terms, you must stop using the Site.

General Use.

By using the Site, if you are an individual, you represent, acknowledge and agree that you are at least the age of majority in the jurisdiction in which you reside. If you are accessing the Site on behalf of a company or other legal entity (“Entity”), you represent that you are authorized to act on behalf of the Entity and to bind such Entity to these Terms.

Company provides content through the Site that is copyrighted and/or trademarked work of Company or Company’s third-party licensors and suppliers or other users of the Site (collectively, the “Materials”).  Materials may include data, information, text, logos, graphics, video, audio, images, software and other content.

Subject to the terms and conditions of these Terms, and your compliance with these Terms, Company hereby grants you a limited, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely as intended through the provided functionality of the Site.  Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner.  Upon the termination of your account, the above license terminates automatically.

Mobile Applications.

Company makes available Mobile Applications to access the Site via a mobile device.  To use the Mobile Application you must have a mobile device that is compatible with the mobile service.  Company does not warrant that the Mobile Application will be compatible with your mobile device.  Company hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for your registered account on a mobile device solely for your internal use.  You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application.  You acknowledge that Company may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device.  You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades.  The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Company and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application).  Standard carrier data charges may apply to your use of the Mobile Application.

The following additional terms and conditions apply with respect to any Mobile Application that Company provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):

• You  acknowledge that these Terms are between you and Company only, and not with Apple, Inc. (“Apple”).
• Your use of Company’s iOS App must comply with Apple’s then-current App Store Terms of Service.
• Company, and not Apple, are solely responsible for our iOS App and the Services and Content available thereon.  You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App.  To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
• You agree that Company, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
• You agree that Company, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
• You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
• The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Company’s iOS App.  Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.

The following additional terms and conditions apply with respect to any Mobile Application that Company provides to you designed for use on an Android-powered mobile device (an “Android App”):

• You acknowledge that these Terms are between you and Company only, and not with Google, Inc. (“Google”). 
• Your use of Company’s Android App must comply with Google’s then-current Google Play Terms of Service.
• Google is only a provider of the Google Play where you obtained the Android App.  Company, and not Google, are solely responsible for Company’s Android App and the Services and Content available thereon.  Google has no obligation or liability to you with respect to Company’s Android App or these Terms.
• You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Company’s Android App.

Password Restricted Areas of this Site.

You may register for an account with the Company through the account registration page on the Site.  You are responsible for maintaining the confidentiality of your login and password (“Password”), and you are responsible for all activities that occur using your Password. You agree not to share your Password, let others access or use your Password or do anything else that might jeopardize the security of your Password.  You agree to promptly notify Company if your Password on this Site is lost, stolen, if you are aware of any unauthorized use of your Password on this Site or if you know of any other breach of security in relation to this Site.

All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date.  You may change, correct or remove any information from your account by logging into your account directly and making the desired changes.

Your Consent to Receive Texts. 

You acknowledge that by voluntarily providing your telephone number(s) you expressly agree to receive text messages from us, our agents, affiliates, and independent contractors related to your account, registration, the Services, any transaction with us, and/or your relationship with us.  You acknowledge that text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list.  You agree that we may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means. You agree to receive text messages from us, our agents, affiliates, and independent contractors even if you cancel your account or terminate your relationship with us, except if you opt-out (see below).  You understand that you do not have to agree to receive texts as a condition of purchasing any goods or services.  To opt-out, please see the Opt-Out Instructions below.

Opt-Out Instructions

Your consent to receive texts is completely voluntary.  You may opt-out at any time.  To opt-out of text messages, text STOP to any text message you receive or email sales@assignar.com and specify that you want to opt out of text messages.  You may also text HELP for help.  You acknowledge and agree to accept a final text message confirming your opt-out. It is your sole responsibility to notify us if you no longer want to receive text messages.  You waive any rights to bring claims for unauthorized or undesired text messages by failing to opt-out immediately or by failing to follow these instructions.  Please allow up to thirty (30) days to process any opt-out request.  Please note that if you opt out of text messages, we reserve the right to make non-automated calls to you.

Fees and Charges

There is no fee to receive text messages from us, our agents, affiliates, and independent contractors.  However, you may incur a charge for these text messages from your telephone carrier, which is your sole responsibility.  Check your telephone plan and contact your carrier for details.  You represent and warrant that you are authorized to incur such charges and acknowledge that Company, our agents, affiliates, and independent contractors are not responsible for such charges.  

Unauthorized Use of Your Telephone Device  

You must notify the Company immediately of any breach of security or unauthorized use of your telephone device.  Although Company, our agents, affiliates, and independent contractors will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.

Company Products.

The Services include Company’s products, Assignar Estimating (“Estimating”) and Assignar Operations (including the Mobile Application) (“Operations”).  Estimating and Operations allow you to access functionality through the Site as described in these Terms and on the Site.  

Estimating

Estimating offers two types of workspaces through the Site: public workspaces and private workspaces.  Individual users may register, free of charge, for a public workspace.  Please note that projects created in public workspaces are accessible to all users of the Site.  Projects in public workspaces may be viewed and used by users of the Site, including being copied to use as the basis for another user’s tender (i.e. for commercial purposes) and/or used for demonstration purposes by other users of the Site.  

Company may from time to time publish project templates in its own public workspace that can be copied and used by users of the Site.  These templates are examples only.  To the extent permitted by applicable laws, Company disclaims responsibility for any damages sustained by you due to your use of those templates. 

Users who do not want their Contributions (as defined below) to be made publicly available to other users may purchase a subscription to an Estimating private workspace.  

Subscriptions to three different types of Estimating private workspaces are available for purchase: Essential (for individuals), Premium (for growing companies) and Enterprise (for established organizations and corporates).  Each Estimating private workspace has different support and collaboration features.

Operations

Operations does not have public and private workspaces.  Pricing for Operations depends on the number of users and is set forth in the applicable quote or order form. 

Users.

For Operations, the creator of the Operations account will be the initial administrator for that Operations account.  If you are the administrator of the Operations account, then you can add users to the Operations account and those users have the ability to send Contributions to other users through the Site via email or text and to third parties through the Site via email.  For Estimating, the creator of a private workspace will be the initial administrator of that private workspace.  If you are the administrator of a Estimating private workspace or Operations account, then you can add or remove users to such Estimating private workspace or Operations account.  If you are the administrator, you may also limit the information and data visible to individual users.  If you add a user to an Estimating private workspace or Operations account, you agree that you have obtained all required consents to send text messages and emails to such user.  You are responsible for all text messages and emails sent by users through your Estimating private workspace and Operations account and you agree that you and such users have the right to send any such text messages and emails.  Additionally, the administrator may have himself or herself replaced by an alternative Estimating private workspace or Operations administrator.  You are solely responsible for any and all access and use of the Site that occurs using accounts, logins and passwords Company issues to any users you add as an administrator.  You shall restrict all such users from sharing passwords and you agree to immediately notify Company of any unauthorized use of any account or login and password issued to your users, or any other breach of security known by you.  Company shall have no liability for any loss or damage arising from your failure to comply with the terms in this section. 

User Contributions.

Estimating and Operations allow you to submit content to the Site and upload and provide content to the Site from Third Party Sites (as defined herein), including, without limitation, information regarding your construction projects, resources available to you, fees and rates for those resources, quantities of resources needed, estimates, project timelines, workforce attributes and equipment profiles (collectively, “Contributions”). 

When using Estimating, please take care to ensure that Contributions by you are made using the appropriate public or private workspace.  Contributions made using a public workspace are treated as non-confidential and non-proprietary, and Company cannot be held responsible if you make an error in this regard.

When you make Contributions to the Site, you represent, warrant and covenant that:

• Your Contributions are related to the intended purpose of the Site, which is to facilitate the development of competitive estimates, budgets, cost management, resource management, safety and compliance management, scheduling and productivity for construction projects.
• The use, creation, modification, distribution, transmission, display or performance, and the accessing, downloading, or copying of your Contribution does not and will not infringe the proprietary rights, including, but not limited, to the copyright, patent, trademark, trade secret, or moral rights, of any third party.
• You are the creator and owner of, or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize Company, the Site, and other users of the Site to use your Contribution in any manner contemplated by the Site and these Terms.
• Your Contribution is not false, inaccurate, or misleading.
• Your Contribution does not violate any applicable law, regulation, or rule.

Company reserves the right to remove any Contribution by you if Company determines, in Company’s sole discretion, that your Contribution is inappropriate for the Site.

You hereby grant Company a worldwide, non-exclusive, irrevocable, royalty-free, fully paid-up, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform your Contributions in connection with the Site (consistent with the functionality of the Site, which differ depending on whether your workspace is public or private).  You also hereby grant each user of the Site a non-exclusive license to access your Contribution through the Site, and to use, reproduce, distribute, prepare derivative works of, display and perform such Contribution (consistent with the functionality of the Site, which differ depending on whether your workspace is public or private).  The above licenses granted by you terminate within a commercially reasonable time after your account is terminated, except that, with respect to your Contributions to public workspaces, the licenses survive for two years after your account is terminated.

Unauthorized Activities.

When using this Site, you agree not to:

• Use the Site for any illegal, unlawful or unauthorized purpose.
• Retrieve the Materials to create or compile, directly or indirectly, a collection, compilation, database, or directory.
• Circumvent, disable, or otherwise interfere with any security-related features of the Site, including features that prevent or restrict the use or copying of any Materials or enforce limitations on the use of the Site and/or the Materials contained therein.
• Engage in unauthorized framing of or linking to the Site.
• Attempt to learn sensitive information about Company and/or other users of the Site, such as user passwords.
• Engage in any automated use of the Site, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
• Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
• Attempt to impersonate another user, or use the username of another user, of the Site.
• Sell or otherwise transfer your user profile on the Site to a third party.
• Use the Site as part of any effort to compete with Company.
• Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
• Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
• Delete the copyright or other proprietary rights notices from any Materials.

Site Management.

Company reserves the right, but not the obligation, to:

• Monitor the Site for violations of these Terms.
• In Company’s sole discretion, and without limitation, refuse or restrict your access to the Site, or limit the availability of the Site to you, if you breach the law or these Terms.
• Take appropriate legal action against anyone who, in Company’s sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities.
• In Company’s sole discretion, and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof, if you breach the law or these Terms.

Company cannot guarantee the Site will be available to you at all times. Company and/or its system’s aggregator may experience hardware, software, or other problems or may need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. You may also experience problems connecting to the internet, and therefore to the Site.  While the Company will take reasonable steps to make the Site available, you agree not to hold Company liable whatsoever for any loss, damage, or inconvenience howsoever arising caused by your inability to access or use the Site during any downtime or discontinuance of the Site. 

Automatic Renewals and Cancellations of Estimating Private Workspace Subscription and Operations Subscription.

When you register for an Estimating private workspace subscription and/or Operations subscription, the length of your subscription is a year or in some cases, more than a year as indicated on your order form (the “Subscription Period”).  Estimating private workspaces and Operations require separate subscriptions.  If you increase the length of your subscription from a month to a year or more than a year, the Subscription Period for both Estimating private workspaces and Operations will increase to a year or more than a year, as indicated on your order form and these Terms govern your subscriptions to both Estimating private workspaces and Operations.  You may have a different renewal date for the Subscription Period for Estimating private workspaces and Operations, as indicated in your order form.  In order to receive continuous service, your Estimating private workspace subscription and/or you Operations subscription will automatically renew at the end of each Subscription Period for a renewal term equal to the length of your current Subscription Period until you cancel at by using any of the cancellation methods below. Your notice of cancellation must be received at least 60 days before the end of the current Subscription Period, and in such case, the cancellation will be effective on the next renewal date of your subscription.

To cancel your subscription, email us at [sales@assignar.com]. Your notice of cancellation must be received at least 60 days before the next renewal of your Subscription Period, and in such case, your subscription will terminate at the end of the Subscription Period. Except where the Company has materially breached these Terms or otherwise set forth herein, there are no refunds on subscriptions for Subscription Periods that have already started, or where your notice of cancellation is received less than 60 days before the next renewal date, subject to applicable laws. You will continue to have access to your subscription through the end of the Subscription Period for which you have already paid.

Please consult your order form from the Company to see the next renewal date of your subscription.

Billing Information.

When you provide your payment method to Company, you are granting your express consent and are expressly authorizing Company to automatically charge you each period for your subscription, plus any applicable taxes.  If you provide a payment method and Company’s charge results in an overdraft, chargeback, or other fee from your bank, you alone are responsible for that fee.

Except where the Company has materially breached these Terms or as otherwise set forth herein, all fees paid to the Company are non-refundable, subject to applicable laws.

You must provide and at all times must maintain accurate, complete, and current billing information, including but not limited to your billing address, credit card number, and credit card expiration date. If you fail to disclose any such information, you agree that Company may continue charging you for subsequent billing cycles, unless you have terminated your subscription as set forth herein. If you become aware of a potential breach of security to your billing information (such as credit card loss or theft), you must notify Company immediately.

In the event that you fail to make a payment on time; Company cannot charge your credit card or other payment method for any reason; or Company becomes aware of any circumstances that would render you unable to make a payment, then  Company reserves the right to either suspend or terminate your subscription. You also agree that you will be responsible for all costs and expenses incurred by Company as a result of or in connection with the above, including,  court costs, collection fees, and attorney fees.

Modifications to Service and Pricing.

Company reserves the right at any time and from time to time to change, modify, add, remove, suspend, cancel, or discontinue any aspect of its subscriptions in the Company’s sole discretion.  If the subscription or the services you subscribed to is materially altered, you will receive notice at least thirty (30) days in advance, and the opportunity to cancel your subscription if you do not agree to the changes.

In addition, Company may modify its subscription fees from time to time before renewal of a Subscription Period.  Unless otherwise specified in your quote or order form with the Company, in the event the subscription fee for your subscription plan has been modified or your number of users has increased resulting in an increase to the subscription fee, and you are required to pay a different fee than at the time you entered into these terms, you will be notified at least ninety (90) days before the end of the current Subscription Period and you have the opportunity to cancel your subscription. If you do not cancel your subscription at least sixty (60) days before the end of the current Subscription Period, you will be deemed to have accepted the new fees.

Privacy Policy.

Please review Company’s Privacy Policy [Here] which explains how Company uses information that you submit to Company.

Links to Third-Party Sites.

This Site may be linked to other web sites that are not Company sites or provide access to software or services delivered or performed by third parties (collectively, “Third-Party Sites”).  Certain areas of the Site may allow you to interact, interoperate and/or conduct transactions with such Third-Party Site and, in certain situations, you may be transferred to a Third-Party Site through a link but it may appear that you are still on this Site.  To use the features of Third-Party Sites, Customer may be required to obtain access to such Third-Party Sites from their providers.  You acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Company, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides.  If you use Third-Party Sites, you are solely responsible for all logins and passwords used with the Third-Party Sites.  Any exchange of data between you and any provider of a Third-Party Site, is solely between you and the applicable provider of the Third-Party Site.  If you use any Third-Party Sites for use with the Site, you acknowledge that Company may allow providers of that Third-Party Site to access Contributions as required for the interoperation and support of such Third-Party Site with the Site.  Company shall not be responsible for any disclosure, modification or deletion of Contributions resulting from any such access by the providers of Third-Party Sites.   Company is providing links to the Third-Party Sites to you as a convenience, and Company does not verify, make any representations or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY.  If the provider of any Third-Party Sites ceases to make the Third-Party Site available for interoperation with the corresponding Site features on reasonable terms, Company may cease providing such features without entitling you to any refund, credit, or other compensation.  

Proprietary Rights.

“Assignar” and “Assignar Estimating” are trademarks of Company.  Other trademarks, names and logos on this Site are the property of their respective owners.

Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Company, Copyright © 2020 Assignar, Pty Ltd.  All rights not expressly granted herein are reserved.  Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

Disclaimer of Warranties.

Your use of this Site is at your own risk. While Company endeavors to ensure the functionality of the Site, the Materials have not been verified or authenticated in whole or in part by the Company, and they may include inaccuracies or typographical or other errors. Company does not warrant the accuracy or timeliness of the Materials contained on this Site. To the extent permitted by applicable laws, Company had no liability for any errors or omissions in Materials, whether provided by Company, our licensors or suppliers or other users.

TO THE EXTENT PERMITTED BY APPLICABLE LAWS, COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES OFFERED THROUGH THE SITE, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS.  UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES OFFERED THROUGH THE SITE, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.  YOU ACKNOWLEDGE THAT ALTHOUGH COMPANY PERFORMS REGULAR ROUTINE BACKUPS OF DATA, BACKUPS MAY NOT BE ENTIRELY RELIABLE UNDER ALL CIRCUMSTANCES. 

IF ANY GUARANTEE, CONDITION, WARRANTY OR TERM IS IMPLIED OR IMPOSED BY APPLICABLE LAW AND CANNOT BE EXCLUDED (A “NON-EXCLUDABLE PROVISION”) AND THE COMPANY IS ABLE TO LIMIT YOUR REMEDY FOR A BREACH OF THE NON-EXCLUDABLE PROVISION, THEN THE COMPANY’S LIABILITY FOR BREACH OF THE NON-EXCLUDABLE PROVISION IS LIMITED EXCLUSIVELY (SO FAR AS APPLICABLE LAWS DO NOT PROHIBIT) TO ONE OR MORE OF THE FOLLOWING AT THE COMPANY’S OPTION: (I) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR (II) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

Limitation of Liability.

WHILE COMPANY ENDEAVORS TO ENSURE THE FUNCTIONALITY OF THE SITE, COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USING, DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. 

TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO COMPANY FOR THE SERVICES OFFERED ON THE SITE IN THE THREE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnity.

To the extent permitted by applicable law, you agree to indemnify and hold harmless Company from and against any and all claims, suits, actions, demands and proceedings against Company and all losses, costs and liabilities related thereto arising out of or related to: (i) your violation of these Terms; or (ii) your violation of any third party right, including without limitation any copyright, property, or privacy right.  This indemnification obligation will survive these Terms and your use of the Site.

Feedback.

If you send or transmit any communications, comments, questions, suggestions, or related materials to Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any services offered through the Site, or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary.  Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.  Where the foregoing assignment is prohibited by law, you hereby grant Company an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as Company may determine in its sole discretion.  Notwithstanding the foregoing, you understand and agree that Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

Termination.

Company may terminate the agreement hereunder between you and Company at any time if you breach or violate these Terms by terminating your account on the Site or giving written notice to you.  In addition, if you breach or violate these Terms, Company may suspend the service provided to you via the Site at any time, with or without cause.  If you are using Estimating and you have a public workspace, you may terminate the agreement hereunder between you and Company at any time and for any reason by terminating your account on the Site.  If you are using and Estimating private workspace and/or Operations, you may terminate the agreement hereunder between you and Company at the end of the current Subscription Period by cancelling your subscription in the manner described above under the heading “Automatic Renewals and Cancellations of Estimating Private Workspace Subscription or Operations Subscription”.

Company will not refund or reimburse you, including if your account is suspended or terminated for cause, like a breach or any violation of these Terms by you. 

If Company terminates or suspends your use of the Site for any reason, you are prohibited from registering and/or creating a new user account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.

Once your account is terminated, you may request access to your Contributions, which we will make available to you, except in cases where we have terminated your account due to your violation of these Terms.  You must make such request within 45 days following termination otherwise, any Contributions you have stored with the Site may not be retrievable and Company will have no obligation to maintain Contributions stored in your account after this 45-day period.

Also, once your account is terminated, Company may, in its discretion, retain on the Site, for up to two years after your account termination, the Contributions made by you to public workspaces through Estimating.  

The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

Dispute Resolution – Arbitration Agreement and Class Action Waiver – United States and Canada.

If you are located in the United States or Canada, this section applies to you.

You may opt-out of this Arbitration Agreement and Class Action Waiver (“Arbitration Agreement”) by emailing us at legal@assignar.com the following information: (1) your name; (2) your address; and (3) a clear statement that you do not wish to resolve disputes with us through arbitration.  Your decision to opt-out of this Arbitration Agreement will have no adverse effect on your relationship with us, but we must receive this opt-out request within 30 days from the date that you first consent to these Terms.  Any opt-out request received after this deadline will not be valid and you must pursue your dispute in arbitration or small claims court.

UNLESS YOU OPT-OUT OF THESE ARBITRATION PROCEDURES AS SET FORTH ABOVE AND EXCEPT AS OTHERWISE DESCRIBED HEREIN:

YOU AND COMPANY EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED BELOW, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION, RATHER THAN IN COURT, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

Arbitration

You and Company agree to arbitrate – rather than litigate in court – any and all claims or Disputes that may arise between you and Company, as defined below. 

For the purpose of this Arbitration Agreement the term “Company” means Company and any of its parent companies or organizations, subsidiaries, affiliates, and each of their managers, owners, officers, directors, employees, or agents.  The term “Dispute” means any claim or dispute that may arise out of or in any way relates to your relationship with Company, including without limitation regarding your purchase hereunder, these Terms, your use of the Site, the services that we, our affiliates, and/or our service providers (on our behalf) may provide to you in connection with your use of the Site, including, without limitation, any Dispute based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability, or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below).  “Dispute” is to be given the broadest possible meaning that will be enforced.  However, in no event shall this Arbitration Agreement prevent you, in your individual capacity, from filing or joining a complaint with any federal, state, or local government agency that is authorized by law to seek relief against Company on your behalf.  The arbitration between you and Company will be binding, and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof.

Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their Disputes and potential Disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such Dispute(s) decided in a lawsuit, in court, by a judge or jury trial.  This Arbitration Agreement provides that all Disputes between you and Company shall be resolved by binding arbitration.  Arbitration replaces the right to go to court.  In the absence of this Arbitration Agreement, you might otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).  Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury.  There is no judge or jury in arbitration, and court review of an arbitration award is very limited.

The arbitrator’s authority is governed by these Terms.  You and Company agree that an arbitrator must follow and be governed by this Arbitration Agreement and may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to these Terms.  An arbitrator may award attorneys’ fees and costs if a court would be authorized to do so and may issue injunctive or declaratory relief if that relief is required or authorized by the applicable law, but that injunctive or declaratory relief may not extend beyond you and your dealings with us, and may not include class or collective action relief.  Discovery may be limited in arbitration, and procedures are more streamlined than in court.

Notwithstanding this Arbitration Agreement, you and Company may bring appropriate claims against each other regarding Disputes in small claims court, if the claims fall within the small claims court’s jurisdiction, or, on an individual and not class or collective action basis, before any other federal, state, or local government agency authorized by law to hear your claims.

Any Dispute relating in any way to your purchase hereunder, your visit to the Site or your use of the Site shall be submitted to confidential arbitration only in either Denver, Colorado, or in a US federal judicial district in which you reside, except that, to the extent you have in any manner violated or threatened to violate Company’s intellectual property rights, Company may seek injunctive or other appropriate relief in any federal or state court in Denver, Colorado, and you consent to jurisdiction and venue in such courts, and arbitration under this Arbitration Agreement shall be conducted under the rules then prevailing of the American Arbitration Association.  

Arbitration will be in English.  

The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.  To the fullest extent permitted by applicable law, no arbitration under this Arbitration Agreement shall be joined to an arbitration involving any other party subject to this Arbitration Agreement, whether through class arbitration, collective action, consolidated proceedings, or otherwise.

Class Action Waiver

You and Company agree that all Disputes between you and Company will be arbitrated individually, and that there will be no class, representative, or consolidated actions in arbitration.  If you or we bring a claim or Dispute in small claims court, the class action waiver will apply, and neither of the parties can bring a claim on a class, representative, or consolidated basis.  Furthermore, neither you nor Company may participate in a class or representative action as a class member if the class action asserts claims or Disputes that would fall within the scope of this Arbitration Agreement if they were directly asserted by you or us.  Notwithstanding the foregoing, this Arbitration Agreement shall not prohibit you or Company from participating solely in your individual capacity in any judgment or settlement in any litigation brought by a federal, state, or local government on behalf of you or us, excluding litigation brought by any relator or party in its capacity as a private attorney general.

We both agree that this Class Action Waiver is an essential part of our Arbitration Agreement and that, if this Class Action Waiver is found to be unenforceable by any court or arbitrator, then the entire Arbitration Agreement set forth in this section will not apply to any claim or Dispute between you and us.  This Class Action Waiver may not be severed from our Arbitration Agreement.

Informal Dispute Resolution

You and Company agree to try to resolve Disputes informally before resorting to arbitration.  If the Dispute cannot be resolved by telephone, you agree to notify us of the Dispute by sending a written description of your claim to Company at Assignar Inc., 1644 Platte St Suite 410, Denver, CO 80202, United States, so that we can attempt to resolve it with you.  If we do not satisfactorily resolve your Dispute within thirty (30) calendar days of receiving notice of it, then you may pursue the Dispute in arbitration.  Neither you nor we may initiate arbitration without first providing the other notice of the Dispute and following the Informal Dispute Resolution procedure provided in this paragraph.

Arbitration Procedures

If the Dispute is not resolved by the Informal Dispute Resolution procedure described above, then either you or Company may initiate arbitration proceedings.  If you are located in the United States, you and Company agree that your purchase hereunder and your use of the Site affects interstate commerce and that the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., applies.  

All arbitrations shall be conducted by the American Arbitration Association (“AAA”), and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a representative, class, or consolidated arbitration.  All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.  The AAA’s rules are available on its website at www.adr.org or by calling 1-800-778-7879.  If the Dispute asserted in arbitration is for less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply.  If the Dispute asserted is for $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  If there is a conflict between the AAA’s rules and this Arbitration Agreement, this Arbitration Agreement shall control.  To initiate arbitration, you must send a letter requesting arbitration and describing your Dispute and any claims for relief to Company at Assignar Inc., 1644 Platte St Suite 410, Denver, CO 80202, United States.  You must also comply with the AAA’s rules regarding initiation of arbitration.  We will pay all filing fees and costs for commencement of an arbitration, but you will be responsible for your own attorneys’ fees and costs unless otherwise determined by the arbitrator pursuant to the terms of this Arbitration Agreement or applicable law.  We will not seek to recover our fees and costs from you in the arbitration unless your claim has been determined to be frivolous.  If you are successful in the arbitration, we will pay your reasonable attorney’s fees and costs.  If you obtain an award from the arbitrator greater than our last written settlement offer, we will pay you $5,000 in addition to what you have been awarded in the arbitration.  The arbitration hearing will be held at the location in which the arbitration is submitted (i.e. either Denver, Colorado or the US federal judicial district within which you reside) or in an alternative location but only upon mutual agreement..  If you seek less than $10,000, then you may choose to hold the arbitration in person, via phone, or to have it decided based on written submissions.

Arbitration Award

The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, except as limited by other provisions of these Terms, and will not have the power to award relief to, against, or for the benefit of any person who is not a party to the proceeding.  The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party.  Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Severability

If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.

Dispute Resolution – Arbitration – Users outside of United States and Canada. 

If you are not located in the United States or Canada, this section applies to you.

You and Company agree to try to resolve Disputes informally before resorting to arbitration. If the Dispute cannot be resolved by telephone, you agree to notify us of the Dispute by sending a written description of your claim to Company at Assignar, PO Box 441 North Sydney NSW 2059, Australia. If we do not satisfactorily resolve your Dispute within thirty (30) calendar days of receiving notice of it, then you may pursue the Dispute in arbitration. Neither you nor we may initiate arbitration without first providing the other notice of the Dispute and following the Informal Dispute Resolution procedure provided in this paragraph. 

If you are not located in the United States or Canada, any Dispute relating in any way to your purchase hereunder, your visit to the Site or your use of the Site shall be submitted to confidential arbitration only in Australia, unless Australia is an inappropriate forum in which case the use of telephonic communications and/or a reasonable location for the resolution of the dispute will be agreed, and arbitration shall be conducted under the rules then prevailing of the Australian Centre for International Commercial Arbitration. In all cases, the arbitration will be in English and the arbitrator’s aware shall be final. 

For clarity, the class action waiver does not apply if you are not located in the United States or Canada.

General.

Company prefers to advise you if Company feels you are not complying with these Terms and to recommend any necessary corrective action.  However, certain violations of these Terms, as determined by Company, may result in immediate termination of your access to this Site.  Where Company is Assignar Inc., these Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Colorado as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles, and the parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.  Where Company is Assignar, Pty Ltd., these Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of New South Wales and the Commonwealth of Australia as applied to agreements entered into and to be performed in Australia without giving effect to conflicts of laws rules or principles.  The United Nations on Contracts for the International Sale of Goods shall not apply to these Terms.  If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified.  Company’s failure to enforce any of these Terms is not a waiver of such term.  These Terms are the entire agreement between you and Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Company about this Site including, but not limited to, any Assignar Estimating and Operations Terms of Use where the length of the subscription is a month.  

Contact Us.

If you have any questions about these Terms or otherwise need to contact Company for any reason, you can reach us at info@assignar.com