CONTRACTORS SOFTWARE LICENSE AGREEMENT – U.S.
Effective Date: December 6, 2018
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY. BY USING THIS SOFTWARE APPLICATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE.
THESE TERMS CONTAIN PAYMENT PROVISIONS, DESCRIBE HOW OUR SERVICES WORK, OUR OBLIGATIONS TO YOU, YOUR OBLIGATIONS TO US, EACH USER’S OBLIGATIONS TO OTHER USERS, AND INCLUDE LIMITATIONS ON LIABILITY AND SHOULD BE REVIEWED.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE, DO NOT USE THIS SOFTWARE AND DELETE IT FROM YOUR MOBILE DEVICE.
These Terms and Conditions (the “Terms”), when accepted in accordance with the provisions which follow below, form an agreement (the “Agreement”, as further defined below) between SNOWHUB, INC., a Delaware corporation (“SnowHub”, “Us”, “Our”, and “We”) and the individual agreeing to these Terms (“You” and the “User”).
Please read the following Terms regarding use of our mobile software application called SnoHub® (the “App”). These Terms govern your use of the App and the Services We offer. The App is part of Our communications platform offered through Our Site facilitating certain services. Your use of the App, access to and use of the Site, and other online software applications available at or on the Site, and the services facilitated by using all of these tools are together called, the “Services” and “SnoHub Platform”.
These Terms govern the Services, and any Content or other materials submitted, uploaded, downloaded, or appearing via the Services. Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using any part of the Services You agree to be bound by these Terms.
If You are over the age of 18 years, then under applicable United States law, You have the legal capacity to enter into a contract and can agree to be bound by these Terms.
By downloading, installing, and using the App, You represent and warrant that (i) You have read and understand these Terms; (ii) You are of legal age in the jurisdiction where You are normally resident; and (iii) You agree to be bound by all of these Terms. If You are under 18 years of age, You are prohibited from using this App and any of the Services.
If You are an adult individual, these Terms will be effective as at the date You complete the electronic acceptance process and click the icon indicating your agreement to be bound by these Terms.
1.1 Defined Terms. When used in this Agreement, the capitalized terms listed below will have the following meanings:
“Account” refers to Our registration process and is an account We establish for You for the purpose of using, accessing, or otherwise benefitting from the functionality of the App and other Services as noted in Subsection 4.1.
“Agreement” means the registration process We establish to set You up with an Account, the Terms of this License, as may be updated by Us from time to time in Our sole discretion, and Your acceptance to be bound by these Terms by clicking on the icon during the registration process.
“Claims” includes all claims, actions, causes of action (whether in contract or in tort or any other theory of recovery in law or equity), suits, proceedings, complaints, contentions, disputes, controversy, or demands of any kind whatsoever, both in law and in equity whether implied or express.
“Content” means any data, packets, information, communication or other material that is transmitted, copied, uploaded, transferred, controlled, downloaded, recorded (whether or not recorded with the App’s functionality or any other installed or stand-alone device or medium) or otherwise made available by any User, through the Services or any part thereof whether or not using your Log-In Information, including without limitation any and all Submissions, documents, articles, designs, icons, illustrations, images, logos, multimedia, photographs, sounds, text, trademarks, video clips, recordings, Personal Information, identities and likeness of individuals, and any other spoken, written or electronic expressions or works.
“Customer” has the meaning given to that word in Subsection 3.1.
“Damages” means any damages, losses, liabilities, settlements, awards, fines, penalties, costs and expenses, including, without limitation, legal fees on a lawyer and own client basis, and court costs.
“Dispute” has the meaning given to that word in Subsection 13.2.
“Environmental Laws” means all applicable international, federal, provincial, state, municipal and local treaties, conventions, laws, statutes, ordinances, by-laws, codes, regulations, and all policies, guidelines, standards, orders, directives, and decisions rendered or promulgated by any ministry, department, administrative or regulatory agency or body whatsoever (including international organizations formed by or participated in by any national, provincial, state, or municipal government or representatives thereof) now or hereafter in force relating to fisheries, health and safety, the protection or preservation of the environment, or the manufacture, processing, distribution, use, treatment, storage, disposal, discharge, transport, emission, transmission, or handling of Hazardous Substances, including the principles of common law and equity and, without limitation includes a fire marshal, a manager appointed under any environmental legislation, an inspector and any official, person, delegate, or body appointed under any law, bylaw, order, statute or regulation or as may be made by any insurance underwriters.
“Hazardous Substances” means any contaminants, pollutants, dyes, chemicals, bio-medical wastes, deleterious substances, underground or above ground tanks, asbestos materials, dangerous goods, hazardous, corrosive or toxic substances, special wastes or wastes of any kind, radioactive materials, explosives, or any other substance which is now or hereafter prohibited, controlled or regulated under Environmental Laws.
“Job” refers to a single engagement for Snow Removal Services at one location performed by a Snow Remover at the request of a Customer using the SnoHub Platform.
“Job Rate” has the meaning given to such term in Subsection 4.3.
“Log-In Information” has the meaning ascribed to it set forth in Subsection 4.1.
“Release” includes release, spill, leak, pump, discharge, pour, emit, eject, escape, leach dispose or dump.
“Sales Taxes” refers to all taxes which may be applicable to any and all Charges including, without limitation, excise taxes, sales taxes, goods and services taxes, harmonized sales taxes, value added taxes, transfer taxes, property taxes, and other governmental charges and assessments, and includes additions by way of penalties, interest and fines and other amounts with respect thereto.
“Site” means www.snohub.com, any subdomains thereof, and any successor websites.
“Snow Remover” has the meaning given to that word in Subsection 3.1.
“Snow Removal Services” means those certain snow removal services requested by a Customer using the SnoHub Platform and which are to be completed by a Snow Remover.
“Submission” has the meaning given to that word in Subsection 9.1.
“User Content” has the meaning given to that term in Subsection 6.1.
- Contractual Relationship and License Grant
2.1 License Grant. Subject to Your continued compliance with the Terms of this Agreement, Snowhub hereby grants You a limited, personal, non-exclusive, non-transferable, non-sublicensable, revocable license, to access and use the Services and Content if You are a Snow Remover, only for the commercial purpose of providing snow clearing services to Customers.
2.2 Further Terms. Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to You in region-specific disclosures (e.g., a particular city webpage on SnoHub.com) or in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
2.3 Amendments. SnowHub may amend the Terms related to the Services from time to time in its sole and absolute discretion and without prior notice. Amendments will be effective upon SnowHub’s delivery of such updated Terms by notice to you through Our App. Your continued access or use of any of the Services after such notice constitutes Your consent to be bound by the Terms, as amended. We recommend that You periodically read Our Terms to see if there are any changes or amendments that have been made to ensure that they are acceptable to You.
- 3. SnowHub’s Services
3.1 SnoHub Platform. The SnoHub Platform is Our communications platform enabling an individual needing snow clearing services (a “Customer”) to connect with an individual willing to provide snow clearing services (a “Snow Remover”, and together with a Customer, called a “User”). You acknowledge that SnowHub does not itself provide Snow Removal Services. All Snow Removal Services are provided solely by the Snow Removers scheduled through use of the SnoHub Platform. SnowHub is not the employer of any Snow Remover. SnowHub is not affiliated with any Snow Remover, and does not sponsor or endorse any Snow Remover. You acknowledge that We do not supervise, direct, or control a Snow Remover’s work or Snow Removal Services performed in any manner. A Snow Remover provides services to You as an independent contractor, and is not an employee, joint venturer, partner, agent, representative, or franchisee of SnowHub for any purpose whatsoever. A Snow Remover has no authority to bind or commit SnowHub in any way whatsoever. Unless otherwise agreed by SnowHub in a separate written agreement with You, the Services are made available to Customers solely for personal, non-commercial use.
Due to the nature of the Internet, SnowHub provides no guarantee or assurance of the continuous and uninterrupted availability or accessibility of the Snohub Platform. SnowHub may restrict the availability of the SnoHub Platform or certain features thereof if this is necessary in view of Our capacity limits, the security or integrity of Our servers, or to carry out maintenance procedures that are intended to ensure the proper or improved functioning of the SnoHub Platform. SnowHub may improve, enhance, and modify the SnoHub Platform at any time.
3.2 Modifications to the SnoHub Platform. We reserve the right in Our sole and absolute discretion to review, improve, modify, or discontinue, temporarily or permanently, the SnoHub Platform or any Content or information on the SnoHub Platform with or without notice. We will not be liable to any User for any modification or discontinuance of the SnoHub Platform.
- Using Our Platform for Snow Removal
4.1 User Accounts. In order to use most aspects of the Services, You must register for and maintain an active personal user Services account (“Account“). You must be at least 18 years of age, or the age of legal majority in the jurisdiction where you ordinarily reside (if different than 18), to obtain an Account. Account registration requires You to submit to SnowHub certain Personal Information, such as Your actual legal name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner), your social insurance number, vehicle license number, and driver’s license particulars. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in Your inability to access and use the Services or SnowHub’s termination of this Agreement with You. You are responsible for all activity that occurs under Your Account, and You agree to maintain the security and secrecy of your Account username and password at all times (the “Log-In Information”). You must immediately notify SnowHub of any actual or suspected unauthorized use of Your Account or Your Log-In Information. You are liable for any and all activities conducted through Your Account or using Your Log-In Information. Unless otherwise permitted by SnowHub in writing, You may only register and obtain one Account. You have no ownership or any other proprietary rights to your Account.
You agree that We may act in reliance, without investigation, upon any Log-In Information provided by You. We will not be required to inquire into the accuracy or evaluate any of Your Log-In Information. Any person using Your Log-In Information is conclusively deemed to have actual authority to engage in transactions using the Site, the App, and the Services and, accordingly, all transactions made by any person using a User’s Log-In Information are hereby authorized and approved by You, and You hereby agree to indemnify, defend, and hold Us harmless from any and all Claims or Damages arising from or relating to any such transactions. If You have reason to believe that your Account is no longer secure (for example, in the event of unauthorized disclosure or use of Your Log-In Information), then You agree to immediately notify Us at firstname.lastname@example.org. You may be liable for the Damages incurred by Us or others due to any unauthorized use of Your Account.
4.2 User Requirements and Conduct. The Service is not available for use by persons under the age of 18. You may not authorize third parties to use Your Account, and You may not allow persons under the age of 18 to receive Snow Removal Services unless they are accompanied by You. You may not assign or otherwise transfer Your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and You may only use the Services for lawful purposes and in compliance with applicable Environmental Laws. You will not in Your use of the Services or provision of Snow Removal Services cause any nuisance, annoyance, inconvenience, or property damage, whether to a Customer, Snow Remover, or any other party. In certain instances You may be asked to provide proof of identity to access or use the Services, and You agree that You may be denied access to or use of the Services if You refuse to provide proof of identity.
4.3 Job Rate. The rate Charged for a Snow Removal Service (“Job Rate“) depends on various factors, such as property location, snow depth, the presence of surface ice, sidewalk length, and driveway length. Therefore, the same Snow Removal Service may cost more in a different location or according to varying snow clearing conditions and other variables.
4.4 Provision for Customers. A Customer interested in having a Job performed will contact Us via the App. SnowHub will display the proposed Job to Snow Removers in the area. We will then provide the Customer with an estimate of the Job Rate based upon various factors a Customer provides as well as third-party weather information provided to SnowHub. The Customer then elects whether to accept the estimated Job Rate. However, if the actual snow depth, or any other relevant, material aspect of a proposed Job differs from Our initial estimated Job Rate, the Customer will be notified by SnowHub that the Job Rate will cost more than initially estimated, and the Customer must then agree to the increased Job Rate via the App before the Snow Removal Service is commenced. Snowhub will notify a Customer by email or text about the Snow Remover who will perform the Snow Removal Services, including the name of the Snow Remover. SnowHub shall have no liability for damage to property or injury to persons resulting from Snow Removal Services.
4.5 Right to Enter and Photograph. By requesting the Snow Removal Services hereunder, each Customer authorizes any Snow Remover intending to provide Snow Removal Services to enter on or upon the Customer’s property to perform the Snow Removal Services and to take photographs of the applicable area upon which Snow Removal Services are to be performed both before and upon completion of the Snow Removal Services and such photographs will be uploaded to the Accounts of the Customer and Snow Remover in the SnoHub Platform using the technology tools provided therein. The Customer or Snow Remover taking the photographs shall, subject to the terms of this Agreement, retain all right, title, and interest in and to said photographs.
4.6 Text Messaging, Phone Calls, Emails. By creating an Account or by providing Your phone number and using the SnoHub Platform, You agree that We may, to the extent permitted by applicable law, use Your mobile phone number for calls and, if such phone number is a mobile number, for text (SMS) messages, in order to assist with facilitating the requested Snow Removal Services. Standard call or message charges or other charges from Your phone carrier may apply to calls or text messages We send You. You may opt-out of receiving text messages from Us by replying with the word “STOP” to a text message from Us. You acknowledge that opting out of text messages may impact Your ability to use the SnoHub Platform or receive notices from Us.
SnowHub may send You confirmation and other transactional emails regarding the Snow Removal Services. SnowHub may also send You emails about services that We think might interest You (“Promotional Emails“). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting Us.
4.7 Referral Credits. In the event that You receive a code from Us through which You may refer a friend to the SnoHub Platform in exchange for a referral credit, You shall not use any online marketing or advertising to promote such code or to artificially increase the amount of credits awarded. By way of example, You may not post, or cause, request or permit a third party to post any such code on a coupon website, nor use any paid search marketing, online advertising, forum posting, newsgroup posting or bulk email to disseminate such code. You may only share such code with your personal friends and acquaintances for legitimate referral purposes, as determined by Us in our sole and absolute discretion. Without limiting Our other rights and remedies, We may terminate such code or Your Account for any breach of this Subsection. For questions or additional information, contact email@example.com .
4.8 Provision for Snow Removers. The Snow Remover agrees that once a Job is accepted, to perform it as quickly as possible in the circumstances. If for any reason, the Snow Remover cannot perform the Job promptly, SnowHub will use reasonable commercial efforts to find a substitute Snow Remover willing to perform the Job. If a Customer reports dissatisfaction with Snow Removal Services performed on any Job, the Snow Remover must return to the Job within two (2) hours of notice from SnowHub to resolve the problem, or the Snow Remover will forfeit any right to the subject Payment and a full refund for the Job will be made to the Customer by SnowHub.
The Snow Remover agrees that the Snow Remover will not, directly or indirectly, (a) provide services to a Customer in a manner which bypasses use of the Snohub Platform for Snow Removal Services; or (b) request any payment from a Customer.
Any User Dispute regarding damage to property or injury to a person, or unsatisfactory Snow Removal Services, will entitle SnowHub to withhold any applicable Payment to the Snow Remover until the Dispute is resolved as contemplated by these Terms.
Each Snow Remover acknowledges and agrees that the provision of Snow Removal Services for a Customer creates a direct business relationship between the Snow Remover and Customer. SnowHub and its affiliates will have no responsibility or liability for the actions or omissions of a Customer in relation to You as a Snow Remover. You as a Snow Remover have sole responsibility for any obligations or liabilities to a Customer or third parties arising from Your Snow Removal Services.
4.8 Quality Assurance. Each Snow Remover agree that he will be solely responsible for taking such precautions and due care as may be reasonable in the performance of Snow Removal Services as hereby contemplated.
If a Snow Remover has repeatedly received poor reviews or ratings per Submissions, or has repeatedly cancelled Jobs, SnowHub may, in its sole and absolute discretion, despite any other provision of this Agreement, and without any liability to a Snow Remover whatsoever, cancel any pending Jobs or limit or suspend (temporarily or permanently) access to the SnoHub Platform by any such User.
4.9 Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if You access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. SnowHub does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
Each User who is a Snow Remover acknowledges and agrees that We may disclose Your contact details to a Customer.
4.11 Insurance. If You are a Snow Remover, You must obtain the following insurance and provide evidence of the same to SnowHub before being permitted to perform any Snow Removal Services:
(a) the Snow Remover will, at its sole cost and expense, for so long as he intends to provide Snow Removal Services contemplated by this Agreement, take out and maintain in full force and effect, the following:
(i) automobile liability insurance to a limit of liability of not less than $3,000,000 in any one accident, covering all licensed motor vehicles owned by the Snow Remover and used in connection with his Snow Removal Services;
(ii) comprehensive general liability insurance applying to the Snow Removal Services and which will include, without limitation, personal injury liability, contractual liability, non-owned automobile liability, and protective liability coverage with respect to the Snow Removal Services; and such insurance will be written for an amount of not less than $4,000,000 per occurrence, or such higher amount as SnowHub may from time to time reasonably require;
(iii) any other form or forms of insurance as SnowHub may reasonably require from time to time in amounts and for perils against which it would be prudent given the nature and scope of Snow Removal Services.
(b) All policies of insurance referred to in this Subsection 4.6 will include the following provisions:
(i) the policies will not be affected or invalidated by any act, omission, or negligence of any person which is not within the knowledge or control of the insured thereunder;
(ii) all property damage policies written on behalf of the Snow Remover will contain a waiver of any subrogation rights which the Snow Remover’s insurers may have against SnowHub and against those for whom SnowHub is in law responsible, whether any insured loss or damage is caused by the act, omission, or negligence of SnowHub, or by those for whose acts SnowHub is, in law, responsible, or otherwise;
(iii) will include SnowHub and any persons, firms, or corporations affiliated with SnowHub and designated by SnowHub as additional insureds and will provide that each person, firm, or corporation insured under such policies will be insured in the same manner and to the same extent as if separate policies had been issued to each;
(iv) all policies will contain an undertaking by the insurers to give SnowHub not less than 30 days’ prior written notice of any cancellation or other termination thereof, or any change which restricts or reduces the coverage afforded thereby, or alternately, the Snow Remover must give SnowHub not less than 45 days’ prior written notice of any prospective cancellation of his insurance.
(c) You agree, as a Snow Remover, that (i) certificates of insurance, or, if required by SnowHub, certified copies of each policy will be delivered to SnowHub as soon as practicable after the placing thereof; and (ii) You will, when required by SnowHub, forthwith provide to Us evidence that all premiums for all insurance policies have been paid.
(d) You agree that if You are a Snow Remover and You fail to take out or keep in force any insurance coverage referred to in this Subsection 4.6, then SnowHub will, despite any other provision of the Agreement, have the right, without assuming any obligation in connection therewith, to terminate this Agreement without prior notice to You.
4.13 Indemnity in favor of SnowHub. If You are a Snow Remover, You will indemnify and save harmless SnowHub and its affiliates and their directors, officers, employees, agents, and representatives from and against any and all Claims or Damages arising out of or relating to:
(a) any injury or damage to (i) any Customer, (ii) the person or property of any Customer, or (iii) any other person or property, due to or caused by any act or omission (including negligence) of the Snow Remover;
(b) any breach of a representation, warranty, or obligation under the Agreement;
(c) Your Snow Removal Services or any other services to a Customer;
(d) any Claim by a third party (including Customers or any government authority having jurisdiction) directly or indirectly relating to Your provision of Snow Removal Services;
and such liability to indemnify and save harmless will survive any termination of the Agreement or Your cessation of use of the App, Site, or any part of the Services, despite anything in these Terms to the contrary.
- License Reservations
5.1 General User Restrictions. You acknowledge and agree that any unauthorized use, copying, or distribution of the Site, the App, or the Services is expressly prohibited without the prior written consent of SnowHub in any instance. You agree not to do any of the following, each of which constitutes an unauthorized use:
(a) remove any copyright, trademark or other proprietary notices from any portion of the Services or add to any trademarks, copyright notices, or other proprietary rights or markings contained within, the Site, the App, or the Services;
(b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, loan, sell, resell, transfer, publicly display, publicly perform, deliver, distribute, pledge, transmit, stream, broadcast, or otherwise exploit, directly or indirectly, the Services or any part thereof, except as expressly permitted by SnowHub under this Agreement;
(c) decompile, reverse engineer, translate, or disassemble the Services except as may be permitted by applicable law. For greater certainty, You will not attempt to learn the source code of the App or any other software available on or through the Site;
(d) link to, mirror or frame any portion of the Services;
(e) cause or launch any programs or scripts for the purpose:
(i) of scraping, indexing, surveying, or otherwise data mining any portion of the Services. For greater certainty, You will not engage in any systematic extraction of data or data fields, including without limitation e-mail addresses;
(ii) or which has the effect of unduly burdening or hindering the operation or functionality of any aspect of the Services nor access or use the Site or the Services in any manner that could damage, disable, overburden, or impair any SnowHub server or the networks connected to any SnowHub server;
(f) attempt to gain unauthorized access to the Site, the App, or the Services or impair any aspect of the Services or its related systems or networks whether through hacking, password mining, phishing, or any other means;
(g) access the Services if You are a direct competitor of SnowHub. In addition, You may not access the Services for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
(h) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site, the App, or the Services;
(i) disrupt, interfere with, or inhibit any other person’s use and enjoyment of the Site or the Services;
(j) use any SnoHub domain name as a false or pseudonymous return e-mail address;
(k) use the SnowHub or SnoHub names to market or sell any goods or services (including advertising and making offers to buy or sell goods or services or implying that SnowHub in any manner endorses or is associated with such goods and services), unless SnowHub has given its prior written consent for such activity; or
(l) use the Site or the Services to sell, market, or promote, anything that is false, deceptive, misleading, deceitful, misinformative, or constitutes “bait and switch”.
5.2 SnowHub Ownership and Intellectual Property. Any rights not expressly granted in this Agreement are reserved by SnowHub, its affiliates, and their licensors. SnowHub and its affiliates retain all right, title, and interest relating to or embodied in the Site, the App, and the Services, including without limitation all copyrights, Marks, and associated intellectual property rights, technology, software, and copies relating thereto. The Site, the App, and the Services are licensed, not sold, to You pursuant to, and solely for Your use under, the terms and conditions of this Agreement and the License granted herein. The Services and all rights therein are and shall remain SnowHub’s property or the property of SnowHub’s affiliates and their licensors. Neither these Terms nor Your use of the Services convey or grant to You any rights:
(a) in or related to the Services except for the limited license expressly granted in this Agreement; or
(b) to use or reference in any manner any of SnowHub’s company names, logos, or Marks or those of SnowHub’s licensors.
SnowHub or its affiliates and licensors are and shall continue to be the sole and exclusive owners of all right, title, and interest relating to or embodied in the Site, the App, and the Services, including without limitation all intellectual property rights associated with the Services. Any use of the Services or any part thereof, other than as expressly permitted herein, is prohibited without the prior express permission of SnowHub or the relevant rights holder.
5.3 Trademarks. The trade name “Snowhub”, the domain name, SnoHub.com, unregistered trademarks SNOWHUB™, the registered trademark, Snohub® and the registered trademark, SnoHub and design® (collectively, the “Marks”) are the property of and owned by Snowhub, Inc. and used under license by SnowHub. SnowHub or its affiliates retain all right, title and interest, including all intellectual property rights, in and to the Marks. You are prohibited from using any of the Marks. Any other trademarks, service marks, logos, or trade names appearing on the SnoHub Platform are the property of their respective owners.
- Your User Content and Representations
6.1 License for User Provided Content. SnowHub may, in SnowHub’s sole and absolute discretion, permit You from time to time to submit, upload, or otherwise make available to SnowHub through the Services, Content related to the Services and initiation of support requests (“User Content”). Any User Content provided by You remains owned by You. However, by providing User Content to SnowHub, You hereby grant SnowHub and its affiliates a non-exclusive, worldwide, perpetual, unconditional, irrevocable, transferrable, assignable, fully-paid, royalty-free right and license, with the right to sublicense, to and to cause others to use, make, import, transmit, upload, host, cache, transfer, store, control, download, record, copy, modify, create derivative works of, edit, adapt, distribute, publicly display, publicly perform, publish, and otherwise exploit in any manner, for any purpose, without limitation such User Content generated or Submitted by You in all media, formats, and distribution channels now known or hereafter devised (including in connection with the Services and SnowHub’s business and on third-party sites and services), without further notice to or consent from You, and without the requirement of payment to You or any other person or entity. You are solely responsible for all User Content that You make available to SnowHub. SnowHub and its affiliates may use any and all photographs submitted to the SnowHub Platform by a Customer or Snow Remover in any commercially reasonable manner including but not limited to marketing purposes. Despite the foregoing, SnowHub agrees to not identify the name or other Personal Information of the Customer of said property in the photographs or the relevant property’s street address. SnowHub has no obligation to use any User Content and may, in its sole and absolute discretion remove any User Content from the SnoHub Platform.
6.2 User Representations, Warranties, and Covenants. You represent and warrant that:
(a) You are the owner or authorized licensee of all User Content generated or submitted by You to the SnoHub Platform and have all rights, licenses, consents, authorizations, and releases necessary to grant SnowHub or its affiliates the license to the User Content as contemplated by Subsection 6.1;
(b) neither the User Content nor your generation, submission, uploading, publishing, posting, displaying, linking to, distributing, transmitting, or otherwise making available to SnowHub or its affiliates of such User Content nor use of the User Content by SnowHub or its affiliates as contemplated hereby will infringe, misappropriate, or violate a third party’s copyright, trademark, service mark, trade secret, domain name, or other intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation;
(c) unless You have all requisite rights to submit and use Personal Information and other information (whether belonging to You, or any third party), You will not submit such User Content or information to the SnoHub Platform or to otherwise use Your User Content in any manner that involves the SnoHub Platform or any part thereof;
(d) Your registration and use of the Services comply with any and all applicable laws;
(e) You will not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by SnowHub in its sole and absolute discretion, whether or not such material may be protected by law.
(f) You will not use the SnoHub Platform nor any Snow Removal Services for any illegal purpose;
(g) You agree to comply with all applicable local, provincial, national, and international laws and regulations, including without limitation laws relating to intercepting, monitoring, or recording communications, privacy, and data protection, and public displays or performances. You further agree that neither this Agreement nor any other right or remedy of SnowHub requires SnowHub to exercise any right or remedy in order to benefit or protect anyone, although SnowHub reserves the right to do so in its sole and absolute discretion;
(h) all information supplied by You in establishing an Account is true, accurate, current, and complete;
(i) You are not located in a country subject to a United States embargo, or that has been designated by the United States Government as a “terrorist supporting” country;
(j) You are not listed on any United States Government list of prohibited or restricted parties.
SnowHub may, but shall not be obligated to, review, monitor, or remove User Content, at SnowHub’s sole and absolute discretion and at any time and for any reason, without notice to You.
7.1 Contracting between Customers and Snow Removers. Customers and Snow Removers of the SnoHub Platform contract directly among themselves for Snow Removal Services. SnowHub is not a party to any agreement for Snow Removal Services. The SnoHub Platform facilitates these agreements by supplying a medium through which Customers can connect with Snow Removers, schedule Snow Removal Services, and make payments for Snow Removal Services (“Payments” or “Charges”).
7.2 Payment by Customers. Customers are obligated to pay Charges in advance for the Snow Removal Services ordered through the SnoHub Platform. In the event the Customer withdraws consent to pay the Charge, SnowHub will withhold payment to the Snow Remover until the User Dispute defined below in Subsection 7.4) is resolved.
7.3 Service Fee Payable to SnowHub. SnowHub or its affiliates take a fee from the Snow Removers in consideration for use of the SnoHub Platform (“SnoHub’s Fee”). The current fee paid by the Snow Remover to SnowHub is thirty percent (30%) of the applicable Charge. You unconditionally and irrevocably authorize SnowHub to deduct SnoHub’s Fee from the applicable Charge immediately upon and concurrent with releasing the balance of the Charge paid by the Customer for Snow Removal Services performed, to You as the Snow Remover. If You are a Snow Remover, You unconditionally and irrevocably consent to SnowHub’s withdrawal of money from each applicable Charge sufficient to fully satisfy payment of SnoHub’s Fee from Your bank account. The Snow Remover is responsible for his own bank fees. In receiving any Charge, SnowHub acts only as an independent contractor to Users and limited payment agent for Snow Removers. SnowHub is not nor will it be deemed to be a trustee of any User under any legal theory in law or in equity. SnowHub has no power or authority to bind any Snow Remover.
7.4 User Disputes. Each User agrees to pay SnowHub a One Hundred Dollar ($100) fee (the “Dispute Fee”) for every dispute between a Customer and Snow Remover (each, a “User Dispute”), plus the disputed amount.
7.5 Resolution in Favor of Snow Remover. If a User Dispute is resolved in the Snow Remover’s favor, the Customer will be charged the disputed amount (plus the Dispute Fee if not already paid to SnowHub), and the Customer will promptly pay such amount using the same payment protocol used to establish his Account. If the Customer fails to make such payment in timely manner, SnowHub shall send notice for a demand for payment to the Customer, and if payment is still not made, the matter will be referred to a collection company and the Customer’s Account will be suspended or terminated, as SnowHub in its sole and absolute discretion may determine. If the matter is referred to a collection agency as aforesaid, SnowHub acts as a limited collection agent for the Snow Remover.
7.6 Resolution in Favor of Customer. If the User Dispute is resolved in favor of the Customer, the Customer will not be obligated to make any payment (other than the Dispute Fee). If there is a compromise of claim or other form of settlement, then the Customer’s credit card will be charged the appropriate amount.
7.7 Bonus. Snow Removers will receive a Twenty-Five Dollar ($25) cash incentive bonus plus applicable Sales Tax paid by SnowHub for every ten (10) Jobs performed for either, ten different Customers, or at ten different locations, and in either instance, completed within a twenty-four (24) hour period.
7.8 Revisions to Pricing. If, after attending Customer location for a Job, a Snow Remover believes the scope of Snow Removal Services is going to be more than what was anticipated under the initial Job Rate, the Snow Remover will notify SnowHub of relevant details and SnowHub will notify the Customer of the change in the Job Rate and request the Customer’s approval of the same before any Snow Removal Services are provided.
SnowHub may from time to time provide certain Users with promotional offers and discounts that may result in different amounts charged for the same or similar services through the use of the Services, and You agree that such promotional offers and discounts, unless also made available to You, shall have no bearing on Your use of the Services or the fees applied to You.
- The App and Mobile Devices
8.1 Accessing our Services. The SnoHub Platform may allow You to access Our Services, download our Apps, upload Content to the SnoHub Platform, and receive messages on your mobile device (collectively “Mobile Features“). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with Your mobile device carrier or mobile device. In addition, Your mobile device carrier may charge You for standard messaging, data, and other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges You incur when using the Mobile Features. You should check with Your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
8.2 Third Party Terms. You acknowledge that Your use of the App is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS or Android).
8.3 Device Compatibility. SnowHub is not liable if You do not have a compatible mobile device or if You download the wrong version of Our App for Your particular mobile device. SnowHub reserves the right to terminate Your License if Your use of the Apps or any other aspect of the SnoHub Platform occurs with an incompatible or unauthorized device.
8.4 Our App Downloaded from Apple. With respect to Our App accessed through or downloaded from the Apple Inc. (“Apple”) App Store, You:
(a) will use the App only:
(i) on an Apple-branded product that runs the Apple iOS operating system software; and
(ii) as permitted by the “Usage Rules” set forth in Apple’s App Store Terms of Service located here: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html.
(b) acknowledge and agree that:
(i) this Agreement is between You and SnowHub only, and that Apple is not a party to this Agreement other than as a third-party beneficiary as set forth in Paragraph 8.4(g), and
(ii) SnowHub, not Apple is solely responsible for the App and the SnoHub Platform.
(c) acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to You with respect to the App;
(d) acknowledge that to the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App;
(e) acknowledge that subject to the terms in this Agreement, solely as between Apple and SnowHub, SnowHub and not Apple is responsible for addressing any Claims You may have relating to the App, or Your possession or use thereof, including, but not limited, to:
(i) any product liability claim;
(ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; or
(iii) any Claim arising under applicable consumer protection or similar legislation.
(f) agree that if the, or Your possession and use of the App, infringes on a third party’s intellectual property rights, You will not hold Apple responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claims;
(g) acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of this Agreement insofar as the App is concerned, and that, upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement with respect to the App against You as a third-party beneficiary of this Agreement;
(h) without limiting any provisions of this Agreement, must comply with all applicable third party terms of any other agreement when using the App.
- Compliance with Environmental Laws
9.1 Covenant. Each User who is a Snow Remover covenants and agrees with SnowHub as follows:
(a) other than in compliance with applicable Environmental Laws, not to use or permit to be used any Hazardous Substances in the course of performing Snow Removal Services;
(b) upon receiving notice from Us or any Customer that any performance of Snow Removal Services is, in Our or a Customer’s bona fide view, in contravention of any Environmental Laws, immediately stop or cause to be stopped the act or activity or use of any Hazardous Substance;
(c) to promptly notify Us in writing of any Release of a Hazardous Substance or any other occurrence or condition of which the Snow Remover is or becomes aware which could subject the Snow Remover to any fines, penalties, orders, investigations, or proceedings under Environmental Laws, with full details thereof;
(d) to indemnify and hold harmless SnowHub and its directors, officers, employees, agents, representatives, successors, assigns, customers, and Customers from any and all liabilities, actions, damages, claims, losses, costs, fines, penalties, and expenses whatsoever (including all legal and consultants’ fees and expenses and the cost of remediation of any and all relevant property) arising from or in connection with:
(i) any breach of or non-compliance with the provisions of this subsection by the Snow Remover;
(ii) any Release or alleged Release of any Hazardous Substance related to or as a result of the Snow Removal Services or any act or omission of the Snow Remover or any person for whom he is in law responsible.
The obligations of the Snow Remover under this subsection will survive the expiry or earlier termination of this Agreement for any reason whatsoever.
- Ratings and Points
10.1 Rate Your Favorites. Snow Removers and Customers may leave a public review or rating on the SnowHub Platform (each, a “Submission”). You acknowledge and agree that Submissions are non-confidential and non-proprietary. Submissions will influence ranking on the SnoHub Platform. For example, highly rated Customers or Snow Removers may be placed together. Any Submission reflects the opinion of the individual User and does not reflect the opinion of SnowHub. Submissions are not verified or edited by SnowHub for accuracy and SnowHub takes no responsibility and assumes no liability for any Submission which may be incorrect or misleading. SnowHub nevertheless reserves the right for any reason in its sole and absolute discretion to remove without notice any Submission.
10.2 Promotions. SnowHub may from time to time, in its sole and absolute discretion, provide certain Users with promotional offers and discounts that may result in different amounts charged for the same or similar Snow Removal Services, and You agree that such promotional offers or discounts, unless also made expressly available to You, shall have no bearing on Charges applied to You for any particular Job.
- satisfaction guaranteed
11.1 Money-Back Guarantee. SnowHub’s expectation is that every Customer will be satisfied with the Snow Removal Service performed. If a Customer ordered and paid for a Snow Removal Service through the SnoHub Platform and the Snow Removal Service was performed, then, if the Customer is not satisfied with that Snow Removal Service, the Snow Remover performing that Job in the first instance promises to promptly re-perform the Snow Removal Service at no additional Charge to the Customer or SnowHub. If the Job is re-performed and after its completion, the Customer is still not satisfied with the Snow Removal Service, SnowHub will have no obligation to pay the Snow Remover for that Job.
- Disclaimers, Limitation of Liability, and Indemnity
12.1 No Liability for User Content. You agree that SnowHub will not be liable for any User Content or the access, reproduction, storage, or other use by SnowHub thereof, including without limitation:
(a) any User Content that is posted, sent, received, held, released, or otherwise connected in any respect to the App, the Site, or the Service;
(b) any User Content that is posted or sent but not received by Us;
(c) any access to or alteration of User Content by You or any other person;
(d) any User Content sent using, or included in, the App, the Site, or the Service;
(e) any defamatory, illegal, obscene, offensive, or threatening User Content;
(f) the conduct of You or anyone else in using the App, the Site, or the Service; or
(g) any infringement of another person’s rights, including without limitation rights of privacy, intellectual property, or data protection.
SnowHub offers no guarantees and assumes no responsibility or liability of any type with respect to the third-party services, including without limitation, any liability resulting from incompatibility between the App, the Site, and the Service and any third-party services. You agree that You will not hold SnowHub responsible or liable with respect to any third-party services.
Although We have no obligation to screen, edit, or monitor any of the User Content posted to or distributed through Our Services, SnowHub reserves the right, and has absolute discretion, to remove, screen, translate, or edit without notice any User Content posted or stored on the SnoHub Platform at any time and for any reason, or to have such actions performed by third parties on its behalf, and You are solely responsible for creating backup copies of and replacing any User Content you post or store on the SnoHub Platform at your sole cost and expense.
Neither SnowHub nor its affiliates or licensors are responsible or will have any liability for the conduct, whether online or offline, of any User of the SnoHub Platform (including but not limited to the conduct of any Customers or Snow Removers).
12.2 Moral Rights. To the extent You retain moral rights (including rights of attribution or integrity) in any User Content, You hereby declare that (a) You do not require that any personally identifying information be used in connection with such User Content, or any derivative works of or upgrades or updates thereto; (b) You have no objection to the publication, use, modification, deletion, or exploitation of the User Content by Us or Our affiliates, licensees, successors, and assigns; (c) You forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the User Content; and (d) You forever release SnowHub and its affiliates, licensees, successors, and assigns, from any Claims that You could otherwise assert against Us by virtue of any such moral rights.
12.3 No Liability for Errors. The App, the Site, and the Service may include technical or other mistakes, inaccuracies, or typographical errors. SnowHub may make changes to the functionality of the App, the Site, or the Service, at any time in its sole and absolute discretion and without notice to You. SnowHub disclaims all liability with respect to the misuse, loss, modification, or unavailability of any Content.
12.4 Use at Your Own Risk. The use of the App, the Site, and the Service, and the downloading, access, or other use of any Content or information or materials therefrom, shall be done solely at Your own discretion and risk and with Your understanding that You will be solely responsible for any damage to your computer system or any loss of data or any other harm that results from such activities. SnowHub will not be liable for any Damage that You may incur as a result of someone else using Your Log-In Information, either with or without Your knowledge. SnowHub shall have no responsibility if the App or Site has been altered in any way, whether by You or by a third party, or for any failure that arises out of Your use of the App, the Site, or the Service with any hardware configuration, platform or operating system, including without limitation any failure related to or arising from your inability to connect to or to access the App, the Site, or Service due to problems related to your computer hardware, software, network, network setup or security, or your internet service provider or any other similar problem.
12.5 As Is, Where Is. You understand and agree that the App and the Services are provided to You on an “AS IS, WHERE IS” and “AS AVAILABLE” basis. SNOWHUB ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY SNOW REMOVAL SERVICES PROVIDED TO A CUSTOMER. Without limiting the foregoing, SnowHub DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR DUTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, NON-INFRINGEMENT, OF ACCURACY, OF AVAILABILITY OR COMPATIBILITY, OF WORKMANLIKE EFFORT, OF COMPLIANCE OR NON-COMPLIANCE BY A CUSTOMER OR SNOW REMOVER WITH ANY APPLICABLE LAW, REGULATION, OR CODE, OF NON-NEGLIGENT PERFORMANCE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE EXCEPT TO THE EXTENT THAT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS, OR DUTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. IN ADDITION, SNOWHUB MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SNOW REMOVAL SERVICES REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SNOWHUB DOES NOT GUARANTEE THE QUALITY OF SNOW REMOVAL SERVICES NOR THE SUITABILITY OR ABILITY OF SNOW REMOVERS.
YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY professional SERVICES REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. SNOWHUB will not be responsible or liable for (a) any DAMAGE OR DESTRUCTION TO PROPERTY OR INJURY OR DEATH OF ANY PERSON AS A RESULT OF OR DUE TO THE SERVICES OR SNOW REMOVAL SERVICES, or (B) harm to your mobile device, computer system, loss of data, or other harm that results from your access to or use of the SERVICES. We make no warranty that the use of the SERVICES will meet your requirements or be secure, or error-free. No advice or information, whether oral or written, obtained from SNOWHUB, ANY CUSTOMER, OR ANY SNOW REMOVER, or through use of the APP will create any warranty not expressly made in THESE TERMS.
12.6 Limitation of Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, independent of, severable from, and to be enforced independently of any other enforceable or unenforceable provision of this Agreement, IN NO EVENT SHALL snoWhub BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, CORRUPTION, OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA OR INFORMATION, BUSINESS INTERRUPTION, OR ANY OTHER DAMAGES, IN CONNECTION WITH, RESULTING FROM, ARISING OUT OF, OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, OR ANY TRANSACTION OR RELATIONSHIP BETWEEN A CUSTOMER AND ANY SNOW REMOVER REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF ANY DUTY), strict liability, statutory liability, OR OTHERWISE) AND EVEN IF SNOWHUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SNOWHUB SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE. YOU ACKNOWLEDGE THAT INDIVIDUALS PROVIDING SNOW REMOVAL SERVICES HAVE NO SNOW REMOVER LICENSING, PERMITS, OR OTHER ACCREDITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall SNOWHUB’s TOTAL liability to you (including liability to person or persons whose claim or claims are based on or derived from a right or rights claimed by you) for all damages EXCEED the GREATER OF EITHER (A) THE sum of SnoWHub’s Fee derived from the Snow Removal Services performed in the seven day period preceding the date the Claim was delivered to SnowHub, OR (B) the AMOUNT of TWENTY-FIVE dollars ($25.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. SNOWHUB’S SERVICES MAY BE USED BY YOU TO REQUEST OR PROVIDE AND SCHEDULE SNOW REMOVAL SERVICES, BUT YOU AGREE THAT SNOWHUB HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SNOW REMOVAL SERVICES PERFORMED OR REQUESTED USING THE SNOHUB PLATFORM OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. THE LIMITATIONS AND DISCLAIMER IN THIS SUBSECTION 12.6 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
12.7 Indemnification. You agree to indemnify and hold SnowHub, its affiliates, and their officers, directors, employees, and agents harmless from any and all Claims or Damages arising out of or in connection with:
(a) Your use of the Services or Snow Removal Services obtained through Your use of the Services;
(b) Your breach or violation of any of these Terms;
(c) SnowHub’s use of Your User Content;
(d) Your violation of the rights of any third party, including a Customer or Snow Remover;
(e) use of or access to the App, the Site, or the Services by You or by any person using your Log-In Information (whether or not such use is authorized by You);
(f) any actual or alleged violation by You or by any person using your Log-In Information (whether or not such use is authorized by you) of this Agreement or any applicable law;
(g) any actual or alleged infringement or violation by You or by any person using your Log-In Information (whether or not such use is authorized by You) of any intellectual property, proprietary, privacy, or other right of any person;
(h) any reproduction made by You of the communications, name, or other Personal Information of any other Users of the Site, the App, or the Services;
(i) any dispute between You, in the capacity of Snow Remover, and any other User;
(j) any payments to SnowHub that are not honored (whether by PayPal, a credit card company, a financial institution, or otherwise) in a timely manner; or
(k) Your negligence or willful misconduct.
12.8 Release. SnowHub expressly disclaims any liability that may, as between any users, arise between users of the SnoHub Platform. The SnoHub Platform is only a venue for connecting users. To the extent that the SnoHub Platform connects a user to another user, SnowHub will not be responsible for any act, omission, claim, or damages one user may have or allege against another user and each user expressly waives and releases SnoWHub from any and all claims or damages arising from or in any way related to a user’s claim AGAINST another user in regards to the professional services or otherwise under any legal theory to the extent advanced against snoWhub or any of its affiliates, directors, officers, employees, agents or representatives.
Because SnoWHub is not involved in the actual contact between users or in the completion of any professional service, in the event that you have a dispute with one or more users, you release SnoWHub from any and all claims or damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
12.9 Construction. For purposes of this Section 12, all references to “SnowHub” will include all affiliates of SnowHub, whether expressly stated or otherwise.
- Dispute Resolution
13.1 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws (procedural and substantive) of the State of Delaware as if made and performed by and between parties situate in such state and without regard to any conflict of laws doctrine. You hereby waive (a) any right to object to venue or jurisdiction based on inconvenient forum or for any other reason; and (b) any statutory or other right pursuant to the laws of the jurisdiction in which You are ordinarily resident to have a case or hearing relating to this Agreement adjudicated or resolved in that jurisdiction.
13.2 Mediation. Any and all Claims arising out of or in connection with or in relation to this Agreement or the breach thereof, including any question regarding its existence, validity, performance, or termination and any tort or other common law or statutory claim arising out of or relating to its performance (collectively, a “Dispute”), will be first subject to non-binding mediation in an effort to resolve any such Dispute by participating in a structured negotiation conference with a mediator under the Commercial Mediation Procedures of the American Arbitration Association.. The mediation will be held in Los Angeles, California. You and SnowHub agree to use best efforts to conduct any dispute resolution procedures herein as efficiently and cost effectively as possible. All aspects of the mediation will be treated as confidential. The costs of the Mediator will be shared equally between You and SnowHub. The mediation may, at the option of either party, occur by videoconference transmission. The party electing to participate in the mediation by videoconference will be responsible for paying the costs of one Mediator who must attend and participate in the mediation at the videoconference facility selected by the party engaging such person.
13.3 Arbitration. If SnowHub and You are unable to resolve the Dispute by the mediation procedures contemplated under Subsection 13.2 within 21 days of the appointment of a Mediator, or such longer period of time which SnowHub and You may both agree to, the Dispute will, unless otherwise agreed to in writing, be subject to binding arbitration, with the losing party paying all costs of arbitration (including reasonable legal fees and expenses) to be conducted by a single arbitrator in Los Angeles, California, pursuant to the provisions of the Commercial Arbitration Rules of the American Arbitration Association and any amendments thereto, and the determination of such arbitrator will be final and binding upon the parties.
13.4 Appointment of Mediator and Arbitrator. Any mediator or arbitrator will be appointed, pursuant to Subsections 13.2 and 13.3, by agreement between SnowHub and You or, in default of agreement, such mediator or arbitrator will be appointed in accordance with the mediation and arbitration procedures of the American Arbitration Association
13.5 Procedure. In any arbitration proceeding contemplated by these Terms, SnowHub and You agree that discovery will be permitted to the same extent permitted by the California Code of Civil Procedure. the The language of any mediation or arbitration will be conducted in the English language. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the mediator or arbitrator, and correspondence, orders, and awards issued by the arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (a) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (b) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
13.6 Dispute Resolution. SnowHub and You agree that, unless otherwise required in order to comply with deadlines under the law, no action or legal proceeding will be commenced with respect to any Dispute until:
(a) notice has been given to the other party of its grievance;
(b) the other party has failed to provide a prompt and effective remedy;
(c) the party with the grievance has requested that representatives for both parties meet and discuss the matter in order to consider informal and amicable means of resolution; and
(d) either such meeting as contemplated by Paragraph 13.6(c) failed to occur within 30 days after such request or the meeting did not produce a mutually satisfactory resolution of the matter.
13.7 Intellectual Property Dispute. Despite any provision to the contrary in Subsection 13.3, any Dispute or Claim arising out of or in connection with or in relation to this Agreement involving copyright, patents, trademarks, trade secrets, or privacy will be submitted to and be subject to the exclusive jurisdiction of the Superior Court of Los Angeles or the United States District Court for the Central District of California.
14.1 Term. This Agreement shall continue in full force and effect for so long as You continue to use Our Services or until such time as it is terminated by You or by Us.
14.2 Termination by SnowHub. SnowHub may immediately terminate this Agreement or any Services with respect to You, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason, and without any liability for such termination or denial of access.
We may also terminate this Agreement or terminate or suspend Your right to use the SnoHub Platform at any time for any or no reason (including, without limitation, in the event that We believe that You have breached this Agreement, or if We otherwise find that You have engaged in inappropriate or offensive behavior (collectively, “Prohibited Conduct”) by providing You with written or email notice of such termination to the physical or email address You have provided Us when setting up Your Account, and termination will be effective immediately upon delivery of such notice by email.
14.3 Termination by You. You may terminate this Agreement by completely and permanently ceasing to use the SnoHub Platform (provided that there are no outstanding Snow Removal Services You agreed to perform using Your Log-In Information or under Your Account) and by closing Your Account. If You attempt to terminate this Agreement while there are still outstanding Snow Removal Services You agreed to perform using Your Log-In Information or under your Account, despite any notice from You to the contrary, this Agreement shall not terminate until such Snow Removal Services have been performed or otherwise cancelled by You in accordance with these Terms.
14.4 Effect of Termination. Upon the expiration or other termination of this Agreement or Your Account, the License will immediately and automatically cease. Except in the event that We terminate or suspend Your right to use the SnoHub Platform due to any Prohibited Conduct, We will pay You all monies for Snow Removal Services properly performed in accordance with these Terms prior to the effective date of termination. If We terminate or suspend Your account for any reason, You are prohibited from registering and creating a new 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. Following the effective date of termination of Your account, SnowHub may delete the Account and all the User Content in or associated with it which You have submitted.
15.1 No Assignment. You may not assign the Agreement in whole or in part without SnowHub’s prior written approval. SnowHub may assign the Agreement without your consent to (a) an affiliate; (b) an acquirer of SnowHub’s assets or any of SnowHub’s issued and outstanding shares; or (c) a successor by merger. Any purported assignment by You in violation of this Subsection shall be void.
15.2 Relationship. No joint venture, partnership, employment, or agency relationship exists between any Snow Remover and SnowHub as a result of this Agreement or use of the Services.
15.3 Severability. If any provision of these Terms or any other part of the Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity, and enforceability of the other provisions in this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid, or unenforceable provision or part thereof with a provision or part thereof that is legal, valid, and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid, or unenforceable provision or part thereof, given the contents and purpose of these Terms and the Agreement between You and SnowHub.
15.4 Waiver. SnowHub’s failure to enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SnowHub in writing and expressly referring to this Agreement.
15.5 Survival. Subsections 4.13, 5.2, 5.3, 6.1, 6.2, 8.4, 15.3, 15.4, 15.5, 15.8, and 15.9, and Sections 9, 11, 12, and 13 shall survive any suspension, cancellation, or termination of this Agreement.
15.6 Contact Information. If you have any questions regarding this Agreement, please contact Us at firstname.lastname@example.org.
15.7. Notices. Unless otherwise specifically noted above in these Terms, any notice or required communication under this Agreement must be provided as follows to be effective:
(a) Notice to You. Notice shall be sent to You either (i) via electronic means to the email address associated with Your Account and shall be deemed delivered when sent by SnowHub, or (ii) by hard copy regular mail to the address, if provided, contained in your Log-In Information and shall be deemed delivered seven calendar days after mailing, and shall be deemed delivered upon transmission.
(b) Notice to SnowHub. Notice from You to SnowHub shall be sent either (i) to email@example.com and will only be effective if specifically and intentionally acknowledged by SnowHub excluding any pre-programmed or automated rule-based reply in which event, notice will then be deemed delivered on the day of such expressly acknowledged reply; or, (ii) if factually delivered by courier or pre-paid registered mail to the following address:
c/o Citron & Deutsch
10866 Wilshire Blvd., Suite 970
Los Angeles, CA 90024
in which event, notice will be deemed delivered on the date of receipt by SnowHub.
15.8 Force Majeure. SnowHub will not be liable for any non-performance or delay in performance caused by any event reasonably beyond its control including accidents, acts of God, the activities of hackers, civil commotion, earthquake, embargo, epidemics, explosion, fire, flood, extreme weather condition, force of nature, hostilities, act of terrorism, health pandemic, malicious conduct, national emergency, revolutions, riots or wars, service outages resulting from equipment or software or telecommunications failures, power failures, network failures, or failures of third party service providers (including providers of internet services and telecommunications).
15.9 Entire Agreement. The acceptance of these Terms by You constitutes the entire agreement and understanding between SnowHub and You with respect to the App, the Site, and the Services and supersedes all other prior or contemporaneous communications, agreements, understandings and proposals, whether written, oral, electronic or non-electronic, between SnowHub and You regarding its subject matter.
15.10 Admissibility. A printed version of these Terms and of any notice given to You in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
15.11 Headings. The headings to, and the division of this Agreement into Sections, Subsections, Paragraphs, and Subparagraphs are for ease of reference only and will not in any way affect or be used in interpreting any of the provisions of this Agreement. Unless the context otherwise requires, a reference to a Section, Subsection, Paragraph, Subparagraph or Schedule by number or letter is a reference to the appropriate Section, Subsection, Paragraph, Subparagraph or Schedule in this Agreement.
15.16 Exclusion of CISG. The application of the United Nations Convention on Contracts for the International Sale of Goods will not apply to any part of the transactions contemplated by this Agreement and the same is hereby strictly excluded. For greater certainty, this Agreement will be interpreted as a contract for services.
15.17 Construction. In this Agreement, except as otherwise expressly provided or as the context otherwise requires:
(a) the words “include” or “including” mean “including, but not limited to”;
(b) unless otherwise expressly noted herein, all references to money in this Agreement shall be to lawful currency of the United States;
(c) a reference to a statute includes every regulation made pursuant thereto, all amendments to the statute or to any such regulation in force from time to time and any statute or regulations that may be passed which have the effect of supplementing or superseding such statute or such regulations;
(d) a reference to a time or date is to the local time or date in Los Angeles, California, unless specifically indicated otherwise;
(e) the words “herein”, “hereof”, “hereby”, and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection, Paragraph, Subparagraph or other subdivision or Schedule;
(f) a capitalized cognate of a defined term has a meaning corresponding to that of the defined term;
(g) the singular of any term includes the plural and vice versa and the use of any term is equally applicable to any gender and where applicable to a corporate entity;
(h) any reference in this Agreement to “days” will, unless otherwise specified, refer to calendar days;
(i) the conjunction “or” shall be understood in its inclusive sense (and/or);
(j) as used in these Terms, the word “affiliate” will have the meaning as defined in the Delaware General Corporations Code as amended from time to time.
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