Last Updated: August 22, 2019
Please read these Terms of Service (“Terms” or “Terms of Service”) carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the Services, you agree to comply with and be bound by these Terms.
Please note: Section 14 of these Terms contains an arbitration clause and class action waiver that applies to all Operators. If your country of residence is the United States, this provision applies to all disputes with ITI. If your country of residence is outside of the United States, this provision applies to any action you bring against ITI in the United States. It affects how disputes with ITI are resolved. By accepting these Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
These Terms of Service constitute a legally binding agreement between you and ITI (as defined below) governing your access to and use of the OperatorPro Services, including our mobile, tablet and other smart device applications related to OperatorPro, and application program interfaces, as applicable from time to time (the “Application”), any websites or subdomains thereof through which ITI makes its Application available, and all associated services related to the Application (collectively with the Application, the “Services”).
When these Terms mention “ITI,” “OperatorPro,” “we,” “us,” or “our,” it refers to Industrial Training International, Inc., a Washington corporation, the company you are contracting with.
When these terms mention “Operator,” or “you,” it refers to you, the party that is contracting with ITI and the party that is using the Services provided by ITI.
Table of Contents
1. Scope of Services
2. Eligibility, Using the Services, Operator Verification
3. Modification of these Terms
4. Account Registration
6. Service Fees – Reserved.
7. Terms for Operators.
8. Disputes between Operators
9. Prohibited Activities
10. Term and Termination, Suspension and other Measures
14. Dispute Resolution
16. Applicable Law and Jurisdiction
17. General Provisions
1. Scope of ITI Services
1.1 Scope. Welcome to OperatorPro, provided by ITI. The Services allow individuals or entities who use the Services (each, an “Operator”) to create a customized digital log book of equipment operation, which includes features such as:
i. recording of equipment use, equipment operation or shifts, activities (such as lift details, mobilization time goals, load descriptions and training sessions) and hours of use (collectively, “Shifts”);
ii. filtering, creating, editing, duplicating or deleting Shift information;
iii. posting and sharing Shift data with other Operators;
iv. interacting with other Operators and provide feedback relating to their Shifts;
v. the completion of equipment competence evaluations; and
vi. the creation and editing of digital images of physical certification cards.
1.2 No Endorsement. As the provider of the Services, ITI does not own, create, sell, resell, provide, control, manage, offer, deliver, endorse or supply: (i) any Operator services provided outside of the Services, including, without limitation, any crane rigging, equipment handling or otherwise (collectively, “Operator Activities”); or (ii) any equipment discussed by any Operator through the Services. Operators alone are responsible for their performance of any Activities. ITI is not acting as an agent in any capacity for any Operator, except as specified in these Terms.
1.3 No Control. While we may help facilitate the resolution of disputes, ITI has no control over and does not guarantee: (i) the existence, quality, safety, suitability, or legality of any Operators or the information provided by such Operators; (ii) the truth or accuracy of any Shifts, reviews, resumes or other Operator Content (as defined below), or (iii) the performance of any Operator Activities or the conduct of any Operator or third party. ITI does not endorse any Operator or its Activities. You should always exercise due diligence and care when deciding whether to rely on any Operator-provided information, or communicate and interact with other Operators, whether online or in person.
1.4 Independent Contractor. If you choose to use the Services, your relationship with ITI is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of ITI for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of ITI. ITI does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with any Operator Activities. You acknowledge and agree that you have complete discretion whether to list your Shifts or Activities or otherwise engage in other business or employment activities.
1.5 Display of Operator Content. To promote the Services and to increase the exposure of such Services, Operator Content (as defined below) may be displayed on other websites, in applications, within emails, and in online and offline advertisements. To assist Operators who speak different languages, Services and other Operator Content may be translated, in whole or in part, into other languages from time to time in the discretion of ITI. ITI cannot guarantee the accuracy or quality of such translations and Operators are responsible for reviewing and verifying the accuracy of such translations.
1.6 Third Parties. The Services may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. ITI is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement in any way by ITI of such Third-Party Services.
1.7 No Guarantee. Due to the nature of the Internet and mobile application services, ITI cannot guarantee the continuous and uninterrupted availability and accessibility of the Services. ITI may restrict the availability of the Services or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of Services. ITI may improve, enhance and modify the Services and introduce new Services from time to time.
2. Eligibility; Using the Services; Operator Verification
2.1 Eligibility. In order to access and use the Services or register an Account (as defined below) to utilize with the Services you must be an individual at least 18 years old or a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country you are established and able to enter into legally binding contracts.
2.2 Compliance. You will comply with any applicable export control laws in your local jurisdiction. You also represent and warrant that: (i) neither you nor your Operator Activities are located or take place in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
2.3 Access and Use. ITI may make access to and use of the Services, or certain areas or features of the Services, subject to certain conditions or requirements, such as completing a verification process or meeting specific quality or eligibility criteria. The access to or use of certain areas and features of the Services may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions, before you can access the relevant areas or features of the Services. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Services, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise in the latter terms and conditions.
2.4 Operator Verification. Operator verification through the Services is difficult and we do not assume any responsibility for the confirmation of any Operator’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to: (i) ask Operators to provide information or undertake additional checks designed to help verify the identities or backgrounds of Operators, or (ii) screen Operators against third party databases or other sources and request reports from service providers.
3. Modification of these Terms. ITI reserves the right to modify these Terms at any time, and from time to time, in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Application and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate these Terms with immediate effect by: (i) no longer accessing the Service in any capacity; and (ii) deleting or removing any access to the Services you may have on your phone, tablet, computer or otherwise. If you do not terminate these Terms before the date the revised Terms become effective, your continued access to or use of the Services will constitute acceptance of the revised Terms.
4. Account Registration
4.1 Registration. You must register an account (“Account”) to access and use certain features of the Services, such as recording Shifts in the Application. If you are registering an Account for a business, organization or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
4.2 Procedure. You can register an Account using an email address and creating a password, or through your account with certain third-party social networking services, such as Facebook or LinkedIn (“SNS Account”). You must provide accurate, current and complete information during the registration process and keep your Account and public Account profile page information up-to-date at all times.
4.3 One Account. You may not register more than one (1) Account unless ITI authorizes you to do so. You may not assign or otherwise transfer your Account to another party.
4.4 Confidentiality. You are responsible for maintaining the confidentiality and security of your Account credentials and may not disclose your credentials to any third party. You must immediately notify ITI if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Account. You are liable for any and all activities conducted through your Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
4.5 Credentials; Operator Connections. ITI may enable features that allow you to authorize other Operators or certain third parties to take certain actions that affect your Account. For example, we may enable Operators to have the ability to connect with other Operators in order to review and approve Shift activity or complete equipment competence applications. These features do not require that you share your Account credentials with any other person. No third party is authorized by ITI to ask for your credentials, and you shall not request the Account credentials of another Operator.
5.1 Operator Content; ITI Content. ITI may, at its sole discretion, enable Operators to: (i) create, upload, post, send, receive and store content, such as text, photos, notes, equipment information, Activity information, or other materials and information on or through the Services (“Operator Content”); and (ii) access and view Operator Content, and any content that ITI itself makes available on or through the Services, including, without limitation, proprietary ITI content, intellectual property and any content licensed or authorized for use by or through ITI from a third party (“ITI Content,” and together with Operator Content, “Collective Content”).
5.2 Ownership. The Services, Application and Collective Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that to the furthest extent allowed by applicable law, the Services, Application and Collective Content, including, without limitation, all associated intellectual property rights therein, are the sole and exclusive property of ITI and/or its licensors or authorizing third-parties an shall be deemed “work made for hire” under all applicable U.S. copyright laws. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services, Application or Collective Content. All trademarks, service marks, logos, trade names, and any other source identifiers of ITI used on or in connection with the Services and ITI Content are trademarks (whether registered or unregistered) of ITI in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Services, Application, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
5.3 No Other Rights. You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services, Application or Collective Content, except to the extent you are the legal owner of certain Operator Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by ITI or its licensors, except for the licenses and rights expressly granted in these Terms.
5.4 Limited Services License. Subject to your compliance with these Terms, ITI grants you a limited, non-exclusive, non-sublicensable, non-assignable, revocable, non-transferable license to access and use the Services and view any or add any Operator Content made available on or through the Services and accessible to you, solely for your personal and non-commercial use.
5.6 Responsibility for Operator Content. You are solely responsible for all Operator Content that you make available on or through the Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Operator Content that you make available on or through the Services or you have all rights, licenses, consents and releases that are necessary to grant to ITI the rights in and to such Operator Content, as contemplated under these Terms; and (ii) neither the Operator Content nor your posting, uploading, publication, submission or transmittal of the Operator Content or ITI's use of the Operator Content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.7 No Publishing of Offensive Content. You will not post, upload, publish, submit or transmit any Operator Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates any other ITI policy, standard, rule or regulation promulgated from time to time (collectively, “ITI Policies”). ITI may, without prior notice, remove or disable access to any Operator Content that ITI finds to be in violation of applicable law, these Terms or ITI’s then-current Policies, or otherwise may be harmful or objectionable to ITI, its Operators, third parties, or property.
5.8 Copyright Infringement. If you believe that any content on the Services infringes copyrights you own, please notify us by using the contact information on our Contact Us page.
6. Service Fees.
6.1 Fees. You shall pay ITI the fees for the Services as set forth in the applicable Order Form which may be available through any part or portion of the Services on the payment schedule set forth in the Order Form. "Order" or "Order Form" means the ITI-approved form or online subscription process by which you agree to subscribe to the Services and purchase the use of such Services. Most Orders are completed through our online payment process or via in-app purchase. All payments are due in U.S. dollars unless otherwise indicated on the Order Form or invoice. You are responsible for providing true, complete and accurate billing and contact information to ITI and updating ITI of any changes to the same. All fees paid are non-refundable for the Subscription Term unless otherwise set forth in these Terms and are not subject to set-off by you. "Subscription Term" means the initial term of your subscription to the applicable Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Trials, the Subscription Term will be the period during which you have an account to access the Services. “Free Trials” means the Service (whether limited or otherwise) or other products or features made available by us to you on an unpaid trial or free basis.
6.2 Invoicing & Payment. Unless otherwise set forth in the Order Form, all fees will be invoiced or billed in advance. All invoices issued under these Terms are due and payable according to the payment terms in the Order Form, if applicable, or within 30 days from invoice send date. If you are paying by credit card, all fees are due and payable immediately, unless otherwise specified in a specific Order Form. If you require the use of a purchase order or purchase order number, you: (a) must provide the purchase order number at the time of purchase; and (b) agree that any terms and conditions contained in such purchase order will not apply to these Terms and are void.
6.3 Credit Card Payment. If you provide ITI with credit card information for payment, you acknowledge that an invoice may not be sent, and you hereby authorize ITI to charge the credit card for the Services listed in the Order Form on the payment schedule set forth in the Order Form for the Term of use of the Services, and any renewal. If you pay by credit card, you hereby authorize ITI to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize ITI to use a third party to process payments, and you hereby consent to the disclosure of your payment information to such third party.
ITI MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, RENEWALS, ADDITIONAL ORDERS, AND FEES) DURING THE SUBSCRIPTION TERM WITHOUT FURTHER AUTHORIZATION FROM YOU UNTIL YOU PROVIDE PRIOR WRITTEN NOTICE (RECEIPT OF WHICH IS CONFIRMED BY ITI) THAT YOU WILL TERMINATE THIS AUTHORIZATION OR WISHES TO CHANGE THE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE ITI RECEIVES YOUR NOTICE.
6.4 Free Trials and Other Promotions. Any free trial or other promotion that provides you with access to Services must be used within the specified time of the trial. IF YOU ARE IN A TRIAL PERIOD AND YOU HAVE ALREADY PROVIDED A METHOD OF PAYMENT TO ITI FOR THE USE OF THE SERVICES, ITI MAY CHARGE SUCH METHOD OF PAYMENT AUTOMATICALLY AT THE END OF THE TRIAL, UNLESS YOU NOTIFY ITI THAT YOU WANT TO CANCEL THE USE OF THE SERVICES.
6.5 Discontinuation of Services. If you choose to discontinue, cancel or terminate any Services for which you have agreed to in an Order Form before the end of the Subscription Term agreed to in such Order Form, ITI shall have the right to immediately invoice you or bill your authorized credit card for any balance due for the remainder of the Subscription Term.
6.6 Late Payments. Past due amounts are subject to a finance charge equal to the lower of 1.5% per month or the highest rate permitted by law from the payment due date until paid in full. You will be solely and exclusively responsible for all reasonable expenses (including attorneys’ fees) incurred by ITI in collecting past due amounts. If your fees are past due, ITI may suspend the Services automatically and provide notice of termination to you for material breach.
6.7 Billing Disputes. If you dispute any invoices, fees or charges, you must send ITI written notice within thirty (30) days after the date that ITI invoices or bills you for the disputed amount. Otherwise, such invoices, fees or charges shall be considered irrevocably accepted and correct by you.
6.8 Taxes. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
7. Terms for Operators.
7.1 Terms applicable to all Operators. When creating an Account or Shift information through the Services you must: (i) provide complete and accurate information about your Account or Shift; (ii) act in accordance with these Terms; and (iii) provide any other pertinent information requested by ITI from time to time. You are responsible for keeping your Account and Shift information up-to-date at all times.
7.2 Operator Access
7.2.1 ITI may enable the Services to allow Operators to connect with other Operators (each, a “Connected Operator”) and allow Connected Operators to provide information on another Operator’s Shifts, such as: (i) provide a review of an Operator, including an equipment competence evaluation; (ii) request, approve or deny connecting with any Operator; (iii) view Shift records; and (iv) provide confirmation that a Shift record is correct. Any agreement formed between any Operator and Connected Operator may not conflict with these Terms, the Services or any other Policies applicable to your use of the Services. ITI reserves the right, in our sole discretion, to limit the number of Connected Operators that an Operator may connect with through the Services.
7.2.2 Operators should exercise due diligence and care when deciding who to add as a Connected Operator. Operators remain solely and exclusively responsible and liable for any and all Operator Content published through the Services, including any Operator Content created by a Connected Operator on their behalf. Further, Operators remain responsible and liable for their own acts and omissions, including, without limitation, conduct that causes harm or damage to any Connected Operator. Connected Operators remain responsible and liable for their own acts and omissions when engaging in their roles and responsibilities as a Connected Operator, including, without limitation, conduct that causes harm or damage to any other Operator. In addition, both the Operator and Connected Operator are jointly responsible and severally liable for any third party claims arising from or related to the acts and omissions of the other Operator as related to the use of the Services between Operators and any Connected Operators.
7.2.3 Operators and Connected Operators may terminate their connection at any time. In addition, both the Operator and Connected Operator acknowledge that their connection will terminate in the event that ITI terminates an Operator’s or Connected Operator’s access to the Services. When the connection between an Operator and Connected Operator is terminated, the Operator will remain responsible for all of the Connected Operator’s actions prior to the termination, including the posting or addition of any information relating to such relationship initiated prior to the termination. When an Operator is removed as a Connected Operator, that Operator will no longer have access to any Operator information related to the applicable Operator relationship with a Connected Operator.
7.2.4 Reviews of an Operator by a Connected Operator solely reflect the opinions of individual Operators and do not reflect the opinions of ITI. Reviews are not verified by ITI for accuracy and may be incorrect or misleading. Operators are prohibited from manipulating the Services or review system in place in any manner, such as instructing a Connected Operator to write a positive or negative review about another Operator.
8. Damage to Services, Disputes between Operators.
8.1 Damage to Services. Subject to Section 7, as an Operator, you are solely and exclusively responsible your own acts and omissions and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, the Services through your Account.
8.2 Disputes. If another Operator claims and provides evidence that you have caused any damage to personal or other property arising out of or relating to your use of the Services (“Damage Claim”), ITI shall have no liability or responsibility whatsoever regarding such Damage Claim. Notwithstanding the foregoing, all Operators agree to cooperate with and assist ITI in good faith, and to provide ITI with such information and take such actions as may be reasonably requested by ITI, in connection with any Damage Claims or other complaints or claims made by Operators relating to the Services or any personal or other property damaged during any use of the Services.
9. Prohibited Activities.
9.1 Prohibited Activities. You are solely and exclusively responsible for compliance with any and all laws, rules, regulations, and Policies that may apply to your use of the Services. In connection with your use of the Services, you will not and will not assist or enable others to:
· breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms or Policies;
· use the Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies ITI endorsement, partnership or otherwise misleads others as to your affiliation with ITI;
· use the Services in connection with the distribution of unsolicited commercial messages (“spam”);
· contact another Operator for any purpose other than connecting as a Connected Operator, including, without limitation, recruiting or otherwise soliciting any Operator to join third-party services, applications or websites, without our prior written approval;
· use the Services to request, make or accept any terms of employment or to solicit Operator Activities in any way;
· discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
· misuse or abuse any Services as determined by ITI in its sole discretion;
· use, display, mirror or frame the Services or Collective Content, or any individual element within the Services, Application, ITI's name, any ITI trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Services, without ITI's express written consent;
· dilute, tarnish or otherwise harm ITI or its brand in any way, including through unauthorized use of Collective Content, registering and/or using ITI or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to ITI domains, trademarks, taglines, promotional campaigns or Collective Content;
· use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Services for any purpose;
· avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by ITI or any of ITI's providers or any other third party to protect the Services;
· attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
· take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Services;
· export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
· violate or infringe anyone else’s rights or otherwise cause harm to anyone.
9.2 No Obligation to Monitor. You acknowledge that ITI has no obligation to monitor the access to or use of the Services by any Operator or to review, disable access to, or edit any Operator Content, but has the right to do so to: (i) operate, secure and improve the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Operator’s compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Operator Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Operators agree to cooperate with and assist ITI in good faith, and to provide ITI with such information and take such actions as may be reasonably requested by ITI with respect to any investigation undertaken by ITI or a representative of ITI regarding the use or abuse of the Services.
10. Term and Termination, Suspension and other Measures.
10.1 Term. These Terms shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or ITI terminate these Terms in accordance with this provision.
10.2 Termination. You may terminate these Terms at any time by sending us an email to the contact information provided below. If you terminate your Account as an Operator, your access to the Services shall automatically cease. However, all such provisions of these Terms shall continue to apply to your use of the Services prior to the date of your termination of the Services.
10.3 ITI Termination. Without limiting our rights specified below, ITI may terminate these Terms as between you and us for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
10.4 Immediate Termination. ITI may immediately, without notice, terminate these Terms as between you and us, and/or stop providing access to the Services if: (i) you have materially breached your obligations under these Terms or our Policies; (ii) you have violated applicable laws, regulations or third party rights; or (iii) ITI believes in good faith that such action is reasonably necessary to protect the personal safety or property of ITI, its Operators, or third parties (for example in the case of fraudulent behavior of an Operator).
10.5 Measures. In addition, ITI may take any of the following measures: (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body; or if (ii) you have breached these Terms or our Policies, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during your Account registration or thereafter, or (iv) ITI believes in good faith that such action is reasonably necessary to protect the personal safety or property of ITI, its Operators, or third parties, or to prevent fraud or other illegal activity:
· limit your access to or use of the Services;
· temporarily or permanently revoke any special status associated with your Account;
· temporarily or in case of severe or repeated offenses permanently suspend your Account and stop providing access to the Services;
· In case of non-material breaches and where appropriate, you will be given notice of any intended measure by ITI and an opportunity to resolve the issue to ITI's reasonable satisfaction.
10.6 Reservation of Rights. If we take any of the measures described above, ITI expressly reserves all rights to pursue the Operator for all damages caused by the Operator, which such damages shall be cumulative.
10.7 No Restoration of Account. When these Terms have been terminated with respect to you, you are not entitled to a restoration of your Account or any of your Operator Content. If your access to or use of the Services has been limited or your Account has been suspended or these Terms have been terminated by us, you may not register a new Account or access and use the Services through the Account of another Operator.
10.8 Survival. Sections 5 and 7 through 17 of these Terms shall survive any termination or expiration of these Terms.
11. Disclaimers. If you choose to use the Services or Collective Content, you do so voluntarily and at your sole and exclusive risk. You agree that you have had whatever opportunity you deem necessary to investigate the Services, laws, rules, or regulations that may be applicable to your use of the Services, and that you are not relying upon any representation, warranty or statement of law or fact made by ITI relating to such Services.
The Services and ITI Content is provided “as is”, “where is” and “with all faults and defects”, without warranty OR CONDITION of any kind, either express or implied, either in fact or by operation of law, statutory or otherwise, including, without limitation, any warranty of merchantability, fitness for a particular purposes, reliability, availability, timeliness, security or non-infringement. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS OR SERVICES THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
12. Liability. You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Services and Collective Content, or any other interaction you have with other Operators whether in person or online remains solely with you. Neither ITI nor any other party involved in creating, producing, or delivering the Services or Collective Content will be liable for any incidental, indirect, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with: (i) these Terms, (ii) from the use of or inability to use the Services or Collective Content, (iii) from any communications, interactions or meetings with other Operators or other persons with whom you communicate, interact or meet with as a result of your use of the Services, or (iv) from your publishing of any information from the Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not ITI has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
In no event will ITI’s aggregate liability arising out of or in connection with these Terms and your use of the Services including, without limitation, from your publishing of any information in the Application, or from the use of or inability to use the Services, ITI Content or Collective Content, or interactions with any other Operators, exceed the amounts you have paid to ITI to utilize the Services in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (U.S. $100.00), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between ITI and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. The disclaimers above do not affect ITI’s liability for any liability which cannot be excluded or limited under applicable law.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICE TO YOU.
13. Indemnification. To the maximum extent permitted by applicable law, you agree to release, defend (at ITI’s option), indemnify, and hold ITI and its affiliates, subsidiaries, successors and assigns and their respective members, managers, owners, officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, fees, claims, causes of action and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your breach of these Terms or our Policies; (ii) your improper use of the Services; (iii) your interaction with any Operator, your use of any Operator Activities, including without limitation any injuries, losses or damages (whether compensatory, indirect, incidental, special, consequential or otherwise) of any kind arising in connection with or as a result of such use; or (iv) your breach of any laws, regulations or third party rights.
14. Dispute Resolution and Arbitration Agreement.
14.1 Agreement to Arbitrate. This Dispute Resolution and Arbitration Agreement shall apply if your: (i) country of residence or establishment is in the United States; or (ii) your country of residence or establishment is not in the United States, but bring any claim against ITI in the United States (to the extent not in conflict with Section 16).
14.2 Overview of Dispute Resolution Process. ITI is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 14.1 applies: (1) an informal negotiation directly with ITI’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 14 and except as provided in Section 14.6). Specifically, the Consumer Arbitration Rules provide:
· Claims can be filed with AAA online (www.adr.org);
· Arbitrators must be neutral and no party may unilaterally select an arbitrator;
· Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
· Parties retain the right to seek relief in small claims court for certain claims, at their option;
· The initial filing fee for the consumer is capped at $200;
· The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
· The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
14.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating any arbitration, you and ITI each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact ITI’s customer service team by using the contact information from the Contact Us page. If, after a good faith effort to negotiate, one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
14.4 Agreement to Arbitrate. You and ITI mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the Services or the Collective Content (collectively, “Disputes”) shall be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and ITI agree that the arbitrator will decide that issue.
14.5 Exceptions to Arbitration Agreement. You and ITI each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction under Section 16: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; or (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
14.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or other AAA arbitration rules determined to be applicable by the AAA (the “AAA Rules”) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
14.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, ITI agrees that any required arbitration hearing may be conducted: (a) in Seattle, King County, Washington; (b) in any other location to which you and ITI both agree; (c) via phone or video conference; or (d) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
14.8 Modification of AAA Rules - Attorney’s Fees and Costs. You and ITI agree that the party initiating arbitration will be responsible for payment of the balance of any initial filing fee under the AAA Rules in excess of $200 for claims of $75,000 or less. Either you or us may be entitled to seek an award of attorney fees and expenses to the extent provided under applicable law and the AAA rules.
14.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
14.10 Jury Trial Waiver. EACH OF THE YOU AND ITI WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ARBITRABLE DISPUTE (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THESE TERMS.
14.11 No Class Actions or Representative Proceedings. You and ITI acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class representative in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and ITI both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 14.11 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in a court of competent jurisdiction. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 14.11 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and ITI agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.
14.12 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if ITI changes this Section 14 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of ITI’s email to you notifying you of such change. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and ITI (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and ITI.
14.13 Survival. Except as provided in Section 14.12 and subject to Section 10.8, this Section 14 will survive any termination of these Terms and will continue to apply even if you stop using the Services or terminate your Account.
15. Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (collectively, “Feedback”). You may submit Feedback by emailing us, through the “Contact Us” section of the Services, or by other means of communication provided through the Services or Application. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, and create derivative works thereof, without compensation to you.
16. Applicable Law and Jurisdiction. These Terms and your use of the Services are exclusively governed and interpreted by the laws of the state of Washington, without reference or regard to Washington’s conflict of laws provisions. Subject to Section 14, you hereby irrevocably and unconditionally agree to submit any legal action or proceeding relating to these Terms or arising out of the relationship of the parties to the non-exclusive general jurisdiction of the courts of the state of Washington located in King County and the courts of the United States located in the Western District of Washington and, in any such action or proceeding, consent to jurisdiction in such courts and waive any objection to the venue in any such court. If any suit or action is instituted in connection with any controversy arising out of these Terms or to enforce any rights hereunder, the substantially prevailing party, as determined by the adjudicator in the suit or action, shall be entitled to recover, in addition to costs, such sums as the court may find reasonable as attorneys’ fees, including litigation expenses and costs, and such similar sums incurred on any appeal.
17. General Provisions.
17.1 Entire Agreement. Except as they may be supplemented by additional or replacement terms and conditions from time to time by ITI and any Policies, these Terms constitute the entire agreement and understanding between ITI and you pertaining to the subject matter hereof, and supersede and replace any and all prior oral or written understandings or agreements between ITI and you in relation to the access to and use of the Services.
17.2 No Rights Granted. These Terms do not and are not intended to confer any rights or remedies upon any person other than you, ITI, ITI’s affiliates, and ITI’s successors and assigns.
17.3 Severability. Each provision of these Terms shall be considered severable such that if any one provision or clause conflicts with applicable law, or may not be given full effect because of such law, this shall not affect any other provision of the Terms that can be given effect without the conflicting provision of clause; provided; however, that such provision shall be modified, to the minimum extent possible and necessary, to be enforceable to the fullest extent and in compliance with any such applicable laws, prior to it being severed from these Terms in its entirety.
17.5 Waiver. ITI’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
17.6 Assignment. You may not assign, transfer or delegate these Terms and your rights and obligations hereunder without ITI's prior written consent. ITI may at any time and from time to time, without restriction, assign, transfer or delegate these Terms and any rights and obligations hereunder, at its sole discretion. Your right to terminate these Terms at any time remains unaffected.
17.7 Communications. Unless specified otherwise, any notices or other communications to Operators permitted or required under these Terms, will be provided electronically and given by ITI via email, Application notification, or messaging service (including SMS).
17.8 Contact Us. If you have any questions about these Terms please contact us via email at: OPERATORPRO@ITI.COM. Otherwise, please feel free to reach out to us via mail at: 9428 Old Pacific Highway, Woodland, WA 98674.
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