These terms of service (“Terms of Service”) apply to the online business applications provided by ServiceMonster LLC (collectively referred to as the “Service”). Service features and capabilities may vary depending on the version or level of the Service provided with these Terms of Service. As used in the Terms of Service, the terms “you”, “your” or “user” all refer to the person using the Service in any way.
1. Permitted Uses and Restrictions on Use
Subject to these terms and conditions of the Terms of Service, ServiceMonster LLC (“ServiceMonster”) or its subcontractors will provide the Service that allows you to manage your company and business-related data on the World Wide Web. By logging into and using the Service, you indicate that you accept these Terms of Service. In order to use the Service, you must obtain access to the World Wide Web at your own expense. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
2. Your Registration Obligations
A. In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form(s) (“Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that we have reasonable grounds to suspect is untrue, inaccurate, not current or incomplete, ServiceMonster may suspend or terminate your account and refuse current or future use of the Service (or any portion thereof).
B. Acceptable Use Policy. By submitting data, files, software, text or other content (“Content”) to ServiceMonster in connection with this Service, you warrant that: (i) you are the owner of such Content, or have been granted all the rights necessary from the owner of Content to submit such Content to ServiceMonster, and (ii) the use of Content by ServiceMonster and its members will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party.
3. Access, Passwords and Security
You may designate as many users as your level of subscription to the Service will allow, and you may provide and assign access and passwords to such users. You will be responsible for the confidentiality and use of your access number(s), password(s), and account number(s). You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting, and other data; including any Content (“Electronic Communications”) entered through or under your access number(s), password(s) or account number(s). ServiceMonster will deem any Electronic Communications it receives under your access number(s), password(s) or account numbers(s) will have been sent by you, and act in-kind. You agree to immediately notify ServiceMonster if you become aware of any loss or theft or unauthorized use of any of your access number(s), password(s) and/or account number(s).
4. Member Conduct
You agree not to use the Service for:
A. Impersonation of any person or entity, including but not limited to, a ServiceMonster official, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
B. Interference with or disruption of the Service, including interference with servers or networks connected to the Service;
C. Violation of any applicable law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange;
D. Providing instructional information about, or otherwise inciting illegal activities;
E. The use, viewing, or copying any portion of the service for purposes of creating or modifying a competing product or service.
5. General Practices Regarding Use, Storage and Service Access
You acknowledge that ServiceMonster may establish practices and limits concerning use of the Service, including without limitation establishing the maximum amount of storage space you have on the Service at any time, as well as limiting the number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that ServiceMonster has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Service. As a condition of use for this Service, you agree that, in the event of an error with the Service, a representative of ServiceMonster shall be permitted to access your Content as necessary to resolve the problem. You acknowledge that ServiceMonster reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
6. Consumer Information and Privacy
6.1 Privacy. ServiceMonster recognizes the account owner of record as the exclusive owner of the data entered by either the account owner or an authorized user of the account into ServiceMonster. The use of this service does not entitle, in whole or in part, the sale or distribution of your Content by ServiceMonster to another person, company or entity. It may be necessary, however, for a representative of ServiceMonster to access your Content to resolve any problems you, or others, may encounter. ServiceMonster reserves the right to obtain system metadata and analytics for the purpose of member support, marketing, or business operations of ServiceMonster.
6.2 Healthcare Information. You acknowledge and agree that the Service, related Services, and Content are not “HIPAA ready” or “HIPAA compliant” and will not assist with or ensure compliance with HIPAA. You are solely responsible for using the Service, related Services, and Content in a manner consistent with all applicable federal and state privacy laws relating to medical or health information.
7. Modifications to the Service
Modifications to the Service. ServiceMonster reserves the right at any time to temporarily or permanently modify or discontinue the Service (or any part thereof) at reasonable notice to you. You agree that ServiceMonster shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. At any time ServiceMonster may specify the version(s) of related products required in order to use the Service (e.g. supported browser versions).
8. Modifications to the Terms of Service.
You agree that ServiceMonster may modify the Terms of Service to comply with any other agreements that ServiceMonster is currently bound by or will be bound by in the future, and/or with applicable law, as well as to adjust to changing business circumstances. Your continued use of any of the Service shall constitute your acceptance of the Terms of Service with the new modifications. If you do not agree to such changes, you may terminate the Terms of Service by immediately terminating all access and use of the Service. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to the Terms of Service.
You agree to pay the then-current non-refundable fees associated with the level of Service you choose. Additional fees may apply for (a) additional user licenses (b) optional add-on features to the Service. Additional fees may apply in the event you elect to transfer from one level of the Service to another. When you subscribe and provide payment information, your chosen payment method will be charged, and will automatically be debited monthly or annually depending upon the schedule of payments chosen upon subscribing. You will be charged to maintain the service unless you notify us to cancel the Service prior to the beginning of the next renewal period. ServiceMonster reserves the right to modify its fees with or without notice for future purchases or changes to your current Service.
10. Termination Policy
You may terminate your Service at any time either by (a) directly terminating your subscription though the Service, or (b) by providing electronic mail correspondence, issued from the account holder’s email account of record. Failure to notify us with the account holder’s electronic mail account on record may result in non-termination and continued charges for the Service.
Upon termination your pre-paid non-refundable credits will allow you to access to the Service until the next renewal period, at which time, your account will be suspended.
You acknowledge and agree that ServiceMonster may suspend or terminate your account and/or deny you access to, use of, or submission of Content for, all or part of the Service, without prior notice, if you engage in any conduct that ServiceMonster believes, in its sole discretion: (a) violates any term or provision of the Terms of Service, (b) violates the rights of ServiceMonster or third parties, (c) is otherwise inappropriate for continued access and use of the Service. In addition, ServiceMonster reserves the right to terminate inactive membership accounts. You agree that upon termination, either by you or us, we will maintain your content for 30 days, after which, we may delete all Content and information related to your account at any time as determined by ServiceMonster and may bar your access to your account and the Service including, but not limited to, access to any of your Content entered into or used in connection with the Service immediately upon cancellation. Upon request, ServiceMonster will provide, through mail or electronic mail, a copy of your Content. If you choose to request a copy of your content, you must do so within 30 days of cancelation. Should you decide to return to ServiceMonster after a cancellation, if you are outside of the 30-day window mentioned above, you will need to create a new account. Further, you agree that ServiceMonster shall not be liable to you or any third-party for any termination of your access to the Service. You agree to defend, indemnify, and hold ServiceMonster harmless from and against all claims, losses, liability costs and expenses (including but not limited to attorneys’ fees) arising from your violation of the Terms of Service, state or federal laws or regulations, or any third party’s rights, including but not limited to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of Service.
The Service may provide links to other World Wide Web sites or resources. You acknowledge and agree that ServiceMonster is not responsible for the availability of such external sites or resources, and publication of these links is not an endorsement nor is ServiceMonster responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that ServiceMonster shall not be responsible or liable, directly, or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
13. ServiceMonster Proprietary Rights
You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information that may have been presented to you through the Service or advertisers is protected by copyrights, trademarks, Service marks, patents or other proprietary rights and laws.
12. No Resale, Etc. of the Service
You agree not to copy, sell, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service. You agree not to access the Service by any means other than through the interface that is provided by ServiceMonster for use in accessing the Service.
13. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
A. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ANY CONTENT OR ADD-ON FEATURES THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SERVICEMONSTER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B. SERVICEMONSTER AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE SERVICE AND ANY CONTENT OR ADD-ON FEATURES THROUGH THE SERVICE
(i) WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS,
(ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) WILL PROVIDE THE RESULTS THAT OBTAINED FROM THE USE OF THE SERVICE TO BE ACCURATE OR RELIABLE, AND (iv) WILL PROVIDE THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE TO MEET YOUR EXPECTATIONS. SERVICEMONSTER AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OF SERVICE OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. SERVICEMONSTER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SERVICE, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW.
c. ANY CONTENT OR MATERIAL TRANSFERRED FROM, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OR ADD-ON FEATURES THROUGH THE SERVICE ARE DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA AND/OR CONTENT THAT RESULTS FROM THE TRANSFER OR DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SERVICEMONSTER OR THROUGH OR FROM THE SERVICE OR ADD-ON FEATURES THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
14. Representations and Warranties.
You represent that, to the best of your knowledge and belief, your use of the Service does not directly or indirectly infringe the legal rights of a third party. You further represent and warrant that all information provided by you in connection with your registration is accurate and reliable.
15. Limitation of Liability
(a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT SERVICEMONSTER AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF SERVICEMONSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE, CONTENT AND/OR ANY INFORMATION; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, CONTENT, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
(b) YOU ALSO AGREE THAT SERVICEMONSTER WILL NOT BE LIABLE FOR ANY (i) INTERRUPTION OF BUSINESS, (ii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) YOU ACCESS THROUGH THIS SERVICE; (iii) CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (iv) EVENTS BEYOND SERVICEMONSTER’S REASONABLE CONTROL;
(c) IN NO EVENT SHALL SERVICEMONSTER’S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO SERVICEMONSTER FOR THE SERVICE, BUT IN NO EVENT GREATER THAN THREE HUNDRED DOLLARS ($300.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
16. Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 13 AND 15 MAY NOT APPLY TO YOU.
17. General Information
The Terms of Service constitutes the entire agreement between you and ServiceMonster and governs your use of the Service, superseding any prior agreements between you and ServiceMonster (including, but not limited to, any prior versions of the Terms of Service) with respect to its subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or other ServiceMonster services, third-party content or third-party software. Except as otherwise provided herein, the Terms of Service shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. Except as otherwise provided in the Terms of Service, you and ServiceMonster agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Whatcom, Washington. The Terms of Service does not limit any rights that ServiceMonster may have under trade secret, copyright, patent, trademark or other laws. The failure of ServiceMonster to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. You agree that any claim or cause of action arising out of or related to use of the Service or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect. The Terms of Service will inure to the benefit of ServiceMonster and its successors and assigns.
All representations, warranties, Sections, 11, 13, 14, 15, 16, 17 and 18 in the Terms of Service shall survive the termination of the Terms of Service.