YARDZ TERMS & CONDITIONS OF USE
Last Updated: July 29, 2019
These Terms of Service set forth the terms and conditions by which Yardz Technologies, Inc, a Delaware Corporation (“YARDZ”, “Company”, “us”, “our”, and “we”) makes available use of the YARDZ website located at www.yardz.com, and all associated sites linked to www.YARDZ.com by the Company, its subsidiaries and affiliates, including YARDZ sites around the world (collectively, the “Site”) and our services including any service, software, application, plug-in, mobile application, component, functionality, tool or program provided now or in the future through the Site (collectively, “Service” or “Services”). These Terms of Service apply to you, a user of the Service, and constitute a binding legal agreement between you, as an individual, or if you are using the Service on behalf of an entity, the legal entity that you represent (“you”, “You” or the “Customer”) and us. Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted on the Service in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 10.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Account Creation. In order to use certain features of the Service, you must register for an account (each an “Account”), including registering as a Renter (as defined below) or Supplier (as defined below), and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Service. Company may suspend or terminate your Account in accordance with Section 8.
Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- Access to the Service
License. Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own personal, noncommercial use. The Service provides an online reservation platform where people or entities (each, a “Renter”) can make a reservation (“Reservation”) with an equipment supplier (each, a “Supplier”) to rent certain equipment, truck fleet or site services (each, a “Supplier Service” or “Supplier Equipment and Services”) from a Supplier at a quoted price (the “Quote”) offered by the Supplier. YARDZ provides the communications platform to facilitate these transactions, but does not itself offer or provide these Supplier Equipment and Services. If You agree to buy or provide Supplier Equipment and Services through the Service, a contract will form between the Renter and Supplier, but YARDZ will not be a party to such contract. You agree that YARDZ may discontinue the Supplier Equipment and Services platform, with or without notice, at any time. In such event, Supplier Equipment and Services and listings and all other functionality will no longer be viewable or usable on the Service. YARDZ is an online reservation platform only, the Service does not include or provide workers, operators, training or other services within a reservation. You agree that YARDZ is not responsible for any Quotes (or any other pricing or provision of Supplier Equipment and Services listed or reserved on the Service), and such Quotes or other prices may vary based on a number of factors, including but not limited to additional auxiliary parts, components, final pickup and delivery charges and other factors not in the control of YARDZ.
Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to these Terms. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof.
Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Service (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Service or any part thereof.
No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Service.
Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. You shall promptly notify Company of any actual or threatened infringement or misappropriation, or any unauthorized access or disclosure, of Company’s intellectual property, or any portion thereof, of which you become aware.
The Service is available only to individuals who are at least 18 years old (and at least the legal age in Your jurisdiction). You represent and warrant that if You are an individual, You are at least 18 years old and of legal age in Your jurisdiction to form a binding contract, and that all registration information You submit is accurate and truthful. YARDZ reserves the right to ask for proof of age from You and Your Account may be suspended until satisfactory proof of age is provided. YARDZ may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in those jurisdictions.
By registering an Account, You authorize the transfer of payment for Supplier Equipment and Services through the use of the Site and Services.
Supplier Equipment and Services. By providing, ordering, buying or otherwise engaging any Supplier Equipment and Services through the Service, You agree to be bound by the following terms:
- Renters agree to provide their payment information, name, address, contact email and phone at the time they order a Supplier Service, and acknowledge, understand and agree that when a Reservation is made, YARDZ provides that information to the Supplier.
- Renters will be charged for each applicable Supplier Service per the payment terms and requirements of the specific Supplier with whom the Renter has entered into an applicable contract for the Supplier Service.
- Renters agree not to commit to purchasing or using a Supplier Service without paying.
- Renters may send Suppliers a notification of call-off for equipment (the “Call Off Notice”) through the Service.
- It is the Supplier’s responsibility to review Call Off Notices and follow up with the Renter as necessary. YARDZ is not liable in any way whatsoever for any damages arising out of a Call Off Notice, including but not limited to a Supplier’s failure to review or act upon a Call Off Notice for any reason, including without limitation, the Supplier’s failure to receive or view a Call Off Notice that has been screened as “junk mail” or otherwise.
- YARDZ reserves the right to cancel an order for a Supplier Service at any time and for any reason.
- YARDZ reserves the right to reject, cancel, interrupt, remove, or suspend a Supplier Service at any time and for any reason. YARDZ is not liable for any damages as a result of any of those actions. YARDZ’s policy is not to comment on the reasons for any of those actions.
- YARDZ does not guarantee the applicable Supplier Service or Supplier Equipment and Service will be provided.
If a Supplier or Renter violates any of the foregoing terms, YARDZ may, in its sole discretion, limit, suspend or terminate the Supplier’s or Renter’s Account privileges.
Fees and Payments; Taxes. Setting up an Account on the Service is free. YARDZ charges a fee to Suppliers for use of the Service. YARDZ is not a bank and we do not offer banking services as defined by the United States Department of Treasury. YARDZ utilizes one or more payment processors (each, a “Payment Processor”), including Stripe as of the date first written above, to process payments for Supplier Equipment and Services, and YARDZ is not liable in any manner for the performance of Stripe or any other such third party Payment Processor in providing such payment processing service. By purchasing a Supplier Service through the Service and/or by making use of some or all of these payment processing services, You agree to be bound by Stripe and any other such Payment Processor’s terms and conditions (Stripe’s terms are currently located here: (https://stripe.com/us/terms)) and hereby consent and authorize us to delegate the authorizations and collect, analyze, and share the information You provide to us with the Stripe or the other applicable Payment Processor to the extent required to provide the Service to You.
You acknowledge and agree that YARDZ is acting solely as an intermediary to assist in organizing and managing rentals between a Supplier and Renter for the provision of Supplier Equipment and Services, and that You are solely responsible for determining any tax liability with respect to such Supplier Equipment and Services.
Each Supplier shall be responsible for the payment of all taxes, fees, charges and assessments of any kind or nature that are imposed against or upon the Supplier Equipment and Services provided by such Supplier by any governmental or quasi-governmental authority having jurisdiction over such Supplier Equipment and Services, including, without limitation, ad valorem taxes, sales and use taxes, and personal property taxes imposed with respect to such Supplier Equipment and Services, other than taxes based on YARDZ’s net income or gross receipts, which taxes YARDZ will pay.
Disputes Between Users. If there are disputes between Suppliers, Renters or other users of the Service (“User”), these must be resolved between the Renter, Supplier and User as YARDZ is not a party to Your transaction (contractually or otherwise). As YARDZ is not a party to the contract between any Supplier, Renter or other User with respect to the offer, provision, purchase or acceptance of any Supplier Equipment and Services, You hereby release YARDZ from any involvement in a dispute You may have with other users of the Service, including without limitation, any dispute arising out of the communication of a Call Off Notice. YARDZ is not liable for any transactions that take place through the Service. YARDZ is under no obligation to become involved in disputes between any Users, or between Users and any third party arising in connection with the use of the Service. This includes, but is not limited to, delivery of goods and Supplier Equipment and Services, and any other terms, conditions, warranties, or representations associated with Supplier Equipment and Services on the Service, provision or purchase of Supplier Equipment and Services. Further, if You have a dispute with one or more Users, You release YARDZ (and its affiliates and subsidiaries, and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known or unknown, arising out of or in any way connected with such disputes. In entering into this release You expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which You may know or suspect to exist in Your favor at the time of agreeing to this release.
- User Content
User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Service (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined below). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, sublicensable, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content solely for the purposes of including your User Content in the Service and providing you the services you may request with respect to your User Content, or in connection with the Service and Company’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
You agree not to use the Service to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
In addition, you agree not to: (i) upload, transmit, or distribute to or through the Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Service unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Service to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Service (or to other computer systems or networks connected to or used together with the Service) or Accounts, whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Service; or (vi) use software or automated agents or scripts to produce multiple accounts on the Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Service (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
Feedback. If you provide Company with any feedback or suggestions regarding the Service (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
- You agree to indemnify and hold Company (and its affiliates and subsidiaries, as well as our respective officers, directors, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Service (including without limitation, any failure to act upon or communicate a Call Off Notice), (b) your violation of these Terms, (c) your violation of applicable laws or regulations or the rights of a third party, or (d) your User Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Third-Party Links & Ads; Other Users
Other Users. Each Service user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Service users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Service user, we are under no obligation to become involved.
Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Service users or any Third-Party Links & Ads and including without limitation, any failure to act upon or communicate a Call Off Notice). If you have a dispute with one or more Users, you release us (and our affiliates, subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. IF YOU ARE A CALIFORNIA RENTER, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, INJURIES OR DEATH RESULTING FROM USE OF ANY EQUIPMENT, TRUCK FLEET OR SITE SERVICES RENTED THROUGH THE SERVICE, THE PERFORMANCE, RELIABILITY OR SERVICE OF ANY EQUIPMENT, TRUCK FLEET OR SITE SERVICES, THE PICK OR DELIVERY OF EQUIPMENT, TRUCK FLEET OR OTHER SITE SERVICES, THE PRICING OF ANY EQUIPMENT, TRUCK FLEET OR SITE SERVICES RENTED THROUGH THE SERVICE, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO THE SERVICE PAID BY YOU TO THE COMPANY IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST COMPANY (BUT NOT INCLUDING THE PURCHASE PRICE FOR ANY COMPANY HARDWARE OR SOFTWARE PRODUCTS OR ANY SUPPORT PROGRAM), OR (II) ONE HUNDRED US DOLLARS (U.S. $100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
- Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Service. We may suspend or terminate your rights to use the Service (including your Account) at any time for any reason at our sole discretion, including for any use of the Service in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Service will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2 through 10.
- Copyright Policy.
Company respects the intellectual property of others and asks that users of our Service do the same. In connection with our Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The Designated Copyright Agent for Company is: Jason Perez
Address of Agent: PO Box 708, Marietta, GA 30061
Changes. These Terms are subject to occasional revision, and if we make any material changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), or by prominently posting notice of the changes on our Service. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any material changes to these Terms will be effective upon the earlier of 30 calendar days following our dispatch of an e-mail notice to you (if applicable) or 30 calendar days following our posting of notice of the changes on our Service. These changes will be effective immediately for new users of our Service. Continued use of our Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: PO Box 708, Marietta, GA 30061. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate or if the parties agree not to use AAA, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Fulton County, Georgia, for such purpose
Export. The Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
Disclosures. Company is located at the address in the “Contact Information” section below. If you are a California Renter, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Electronic Communications. The communications between you and Company use electronic means, whether you use the Service or send us emails, or whether Company posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
Copyright/Trademark Information. Copyright ©2018 YARDZ, LLC All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
If you are accessing the Service via an application on a device provided by a third party application store or an application obtained through a third party application market (such as the App Store or Play Store) (each an “Application”), the following shall apply: (a) Both you and YARDZ acknowledge that these Terms are concluded between you and YARDZ only, and not with such third party, and that such third party is not responsible for the Application or the content therein; (b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Application; (c) You will only use the Application in connection with an such third party device that you own or control and as permitted by the Usage Rules or similar terms set forth in the App Store Terms of Service or applicable third party terms of service; (d) Both you and YARDZ acknowledge and agree that such third party has no obligation whatsoever to furnish any maintenance and support services with respect to the Application; (e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify such third party of such failure, and such third party will refund the purchase price for the Application to you; and to the maximum extent permitted by applicable law, such third party will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will, as between such third party and YARDZ, be YARDZ’s sole responsibility; (f) Both you and YARDZ acknowledge that., as between YARDZ and such third party, YARDZ, not such third party, is responsible for addressing your claims or the claims of any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (g) Both you and YARDZ acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, YARDZ, and not such third party, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim; (h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; (i) Both you and YARDZ acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and (j) Both you and YARDZ acknowledge and agree that such third party and such third party’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms of Service, such third party will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof. Additionally, such third party’s trade and service marks, logos, including Apple, the Apple Logo, iPhone, iPad, Android and Google are property of the applicable third party and not YARDZ.
Attention: Legal Department
120 South Park Square, Suite 210, Marietta, Georgia 30060