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Terms of Service

Extracker, Inc Terms of Service

Last Updated: August 11th, 2020

Terms of Service

Please read these Terms of Service (the “Agreement”) carefully. Your use of the Platform (as defined below) constitutes your consent to this Agreement. 

This Agreement is between you and Extracker, Inc. (“Company” or “we” or “us”) concerning your use of (including any access to) the Extracker site currently located at  https://extracker.com/terms-of-services/ (together with any materials and services available therein, and successor site(s) thereto, the “Site”), any related mobile software application(s) made available by us (together with any materials and services available therein, and successor application(s) thereto, the “App”), and any construction software and other related construction tools and services (collectively, together with the Site and the App, the “Platform”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Company through the Platform, or otherwise made available to you by Company.

By using the Platform, you affirm that you are of legal age to enter into this Agreement. 

If you are an individual accessing or using the Platform on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the Platform and to any such Organization.

This Agreement contains a mandatory arbitration provision that, as further set forth in Section 18 below, requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, or class actions of any kind.

1. Facilitation of Projects. Company offers the Platform as a means to facilitate the provision of change orders, time and material tags, and other project elements between and among subcontractors, general contractors, owners and other users in connection with construction projects (“Projects”). Company has no responsibility for or control over the interactions of users in connection with such Projects, and makes no guarantees regarding the quality, safety or legality of such interactions or Projects; the truth or accuracy of any content provided in connection with such Projects; or the capabilities of users to provide any services or payments in connection with such Projects. By using the Platform, you acknowledge and agree that (a) as between you and Company, you are solely responsible for your acts and omissions, as well as the acts and omissions of any users you invite to interact with you on the Platform; (b) Company is not responsible for the acts or omissions of any users in connection with any Projects; and (c) any dispute between or among users regarding any Projects, including any disputes relating to interactions on or through the Platform in connection with any Projects, shall not involve Company, and shall be resolved between or among the disputing users.

2. Changes. We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Platform. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.

Your use of the Platform following any changes to this Agreement will constitute your acceptance of such changes, unless such changes violate the Agreement under the SaaS Agreement. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Platform (including access to the Platform via any third-party links); charge, modify or waive any fees required to use the Platform; or offer opportunities to some or all Platform users.

We note that, if a revision affects the terms and conditions of an existing Master Subscription Agreement, the executed Master Subscription Agreement overrides any changes to this Agreement until the Master Subscription Agreement expires, unless the Master Subscription Agreement provides otherwise.  

3. Information Submitted Through the Platform. Your submission of information through the Platform is governed by Company’s Privacy Policy, located at https://extracker.com/privacy-policy/ (the “Privacy Policy”). You represent and warrant that any information you provide in connection with the Platform is and will remain accurate and complete, and that you will maintain and update such information as needed.

4. Jurisdictional Issues. The Platform is controlled or operated (or both) from the United States, and is not intended to subject Company to any non-U.S. jurisdiction or law. The Platform may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Platform is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Platform’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.

 

5. Rules of Conduct. In connection with the Platform, you must not:

    • Post, transmit or otherwise make available through or in connection with the Platform any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
    • Post, transmit or otherwise make available through or in connection with the Platform any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
    • Harvest or collect information about users of the Platform.
    • Interfere with or disrupt the operation of the Platform or the servers or networks used to make the Platform available, including by hacking or defacing any portion of the Platform; or violate any requirement, procedure or policy of such servers or networks.
    • Restrict or inhibit any other authorized person from using the Platform.
    • Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Platform except as expressly authorized herein, without Company’s express prior written consent.
    • Reverse engineer, decompile or disassemble any portion of the Platform, except where such restriction is expressly prohibited by applicable law.
    • Remove any copyright, trademark or other proprietary rights notice from the Platform.
    • Frame or mirror any portion of the Platform, or otherwise incorporate any portion of the Platform into any product or service, without Company’s express prior written consent.
    • Systematically download and store Platform content.
    • Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Platform content, or reproduce or circumvent the navigational structure or presentation of the Platform, without Company’s express prior written consent. 

You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Platform.

 

6. Subscriptions. We may make available to users who subscribe through the Platform the ability to purchase or otherwise obtain certain products, services, features or functionality not otherwise available to Platform users (a “Subscription”). If you wish to become a Subscriber, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address and your shipping information. You represent and warrant that you have the right to use any credit card that you submit in connection with a Subscription. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Subscriptions. Verification of information may be required prior to the acknowledgment of any Subscription. By becoming a Subscriber, you represent that the applicable products, services, features and functionality will be used only in a lawful manner.

Company reserves the right, including without prior notice, to discontinue making available, or limit the available quantity of, any product, service, feature or functionality made available through the Subscription; and to bar any user from becoming a Subscriber. Refunds and exchanges will be subject to Company’s applicable refund and exchange policies. You agree to pay all charges incurred by you or on your behalf through the Platform, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your Subscriptions. Customers who pay for a Subscription are expected to provide payment in full according to the terms of their service agreement or plan. Fees are due upon request and the failure to provide timely payment will result in termination of the Subscription. Company retains the right to suspend your Subscription until we receive payment in full. Cancellation of paid Subscriptions must be made to Company through proper channels as set forth in your original user agreement.

We note that additional terms and conditions will apply to Subscriptions, as set out in our Master Subscription Agreement.

7. Registration; User Names and Passwords. You may need to register to use all or part of the Platform. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Company, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Platform account.

8. Profiles and Forums. Platform visitors may make available certain materials (each, a “Submission”) through or in connection with the Platform, including on profile pages or on the Platform’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality. Company has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. If you choose to make any of your personally identifiable or other information publicly available through the Platform, you do so at your own risk.

 

9. License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).

In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Platform or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Company under any fiduciary or other obligation.

You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Platform, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.

10. Monitoring. We may (but have no obligation to) monitor, evaluate, alter or remove Submissions before or after they appear on the Platform, or analyze your access to or use of the Platform. We may disclose information regarding your access to and use of the Platform, and the circumstances surrounding such access and use, to anyone for any reason or purpose.

11. Your Limited Rights. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Company to use the Site, you may view one (1) copy of any portion of the Site to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial use. The App is licensed (not sold) to end users. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Company to use the App, we hereby permit you, on a limited, non-exclusive, revocable, non-transferable, non-sublicensable basis, to install and use the App on a mobile device that you own or control, solely for your personal, non-commercial use. If you fail to comply with any of the terms or conditions of this Agreement, you must immediately cease using the App and remove (that is, uninstall and delete) the App from your mobile device.

12. Company’s Proprietary Rights. We and our suppliers own the Platform, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include “EXTRACKER” and any associated logos. All trade names, trademarks, service marks and logos on the Platform not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Platform should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.

 

13. Third Party Materials; Links. Certain Platform functionality may make available access to information, products, services and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials. 

We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Company with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Platform at any time. In addition, the availability of any Third Party Materials through the Platform does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.

Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).

 

14. Disclaimer of Warranties. To the fullest extent permitted under applicable law: (a) the Platform (including any related products, services, features and functionality)  and Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) Company disclaims all warranties with respect to the Platform and Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Company and its affiliates and their respective directors, officers, employees, affiliates, agents, representatives, licensors, suppliers and service providers (collectively, the “Affiliated Entities”), and their respective successors and assigns.

While we try to maintain the timeliness, integrity and security of the Platform, we do not guarantee that the Platform is or will remain updated, complete, correct or secure, or that access to the Platform will be uninterrupted. The Platform may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Platform. If you become aware of any such alteration, contact us at info@extracker.com with a description of such alteration and its location on the Platform.

15. Limitation of Liability. To the fullest extent permitted under applicable law: (a) Company will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, loss of security of Submissions (including unauthorized interception by third parties of any Submissions), even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, Company will not be liable for damages of any kind resulting from your use of or inability to use (including access) the Platform (including any related products, services, features or functionality), Projects or Third Party Materials, including from any Virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the Platform any Third Party Materials is to stop using the Platform; and (d) the maximum aggregate liability of Company for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of the amount(s) that you paid directly to Company to use the Platform and One Hundred Dollars ($100). All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Company and the Affiliated Entities, and their respective successors and assigns.

16. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Company and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Platform (including all Submissions); (b) in connection with your Projects (including any interactions by you with others regarding such Projects), including any claims by any users associated with any such Project; and (c) any violation or alleged violation of this Agreement by you.

17. Termination. This Agreement is effective until terminated. Company may terminate or suspend your use of the Platform at any time and without prior notice, for any or no reason, including if Company believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Platform will immediately cease, and Company may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 1, 3–10, and 12–24 shall survive any expiration or termination of this Agreement.

18. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM, OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules, as amended by this Agreement. The Commercial Arbitration Rules are available online at https://www.adr.org/Rules. Any in-person appearances will be held in San Francisco County in the State of California. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

19. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Company does not endorse any of the products or services listed on such site.

 

20. Information or Complaints. If you have a question or complaint regarding the Platform, please send an e-mail to info@extracker.com. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

 

 

21. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Platform infringe your copyright, you (or your agent) may send to Company a written notice by mail, e-mail or fax, requesting that Company remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Cameron Page as follows: By mail to Cameron Page 44 Tehama Street, San Francisco CA, 94105; or by e-mail to cpage@extracker.com. 

We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice. 

22. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.

23. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Company. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Platform or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall 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. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.

 

24. Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to Company in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, Company’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.

Site and App each © 2020 Extracker, Inc., unless otherwise noted. All rights reserved.

Contact Us

If you have any questions about the Terms, please contact us.

 

Extracker, Inc.
44 Tehama Street
San Francisco, CA 94105
info@extracker.com

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