PROJECTMARK TERMS & CONDITIONS
THESE TERMS AND CONDITIONS (THE “TERMS”) WERE LAST UPDATED ON March 21, 2023
Brady Deane Group, Inc. (“ProjectMark”, “we”,or “us”)operates websites (each a “Website”) and mobile applications (each a “Mobile App”) in order to provide its real estate and construction platform and related services to the public (the “Platform”). We need rules to keep our platform and services safe for you, us, and all other users of our Websites and/or Mobile Apps and in order for you to understand how your use of ProjectMark’s Services will be governed. You agree that these Terms, including all other policies and agreements incorporated herein, apply to all of your activities on our Websites, Mobile Apps, and our APIs, as it relates to our platform and any other related services we provide (collectively referred to through these Terms as the “Services”). If you do not wish to be bound by these Terms do not use or access any of the Services in any manner or for any purpose. References herein to “you” means either the individual or the organization that is using Platform as a registered user oras a guest, including, where applicable, as an Authorized User of an organization using the Services. If you are an organization, you agree to ensure that all personnel that use your account are duly authorized by you (each and “Authorized Person”) and you remain fully liable for each Authorized Person’s adherence to these Terms.
Notwithstanding the above, if you have entered into a separate written agreement with ProjectMark for a subscription to access any portions of the Platform (a “Separate Subscription Agreement”),the Separate Subscription Agreement between you and ProjectMark will controlyur use of our Platform and your receipt of the services described in theSeparate Subscription Agreement, and the provisions of these Terms shall only applythe extent your Separate Subscription Agreement specifically identifies thatprovision as applicable.
If you live in the United States or Canada, by agreeing to these Terms, you agree to resolve disputes with ProjectMark through binding arbitration (with very limited exceptions, not in court), and you waive certain rights to participate in class actions, as detailed in the Dispute Resolution for US and Canadian Residents section of these Terms.
If you live outside of the United States or Canada, by agreeing to these Terms, you agree to resolve disputes with ProjectMark in accordance with the Dispute Resolution for non-US andnon-Canadian Residents section of these Terms.
a. In order to access and use most of the Services available through the Platform, you will need to register and create an account (“Account”) and, via registration, you will be required to identify yourself by providing information required through the registration process, including providing a valid email address and/or a phone number capable of receiving SMS text messages. As part of the registration process, you will be required to select a password. You Agree to provide accurate, current and complete information about the Account. ProjectMark reserves the right to suspend or terminate yourAccount, if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading.
b. You may be required to register for an Account through additional means, including agreeing to a payment plan in a Separate Subscription Agreement. All such terms and conditions are incorporated herein with respect to you and your right to use the Services shall terminate automatically upon the conclusion of any term contained such Separate Subscription Agreement or as otherwise stated therein.
c. You have complete responsibility for your Account and everything that happens on your Account, including for any harm or damage cause by someone using your Account without your permission. You are responsible for maintaining the confidentiality of your password and you agree to notify us if your password is lost, stolen, or disclosed to an unauthorized third-party, or otherwise may have been compromised.
d. Your Account is personal to you and may not be transferred or assigned to any other person or entity. In the event of your death, your Account will be closed and terminated.
e. If you get locked out of your account for any reason, we may request information from you, as we deem necessary, to confirm that you are indeed the owner of your Account prior to unlocking your Account or allowing you to reset your password.
f. Note,use of the Services are meant for individuals that are at least 18 years of age. As such, if you are under 18 years of age, you may not set up an Account. You further agree to not allow anybody under the age of 18 to use your Account. If we discover that you have created an Account and you are younger than the required age for consent to use online services (e.g., 13 years of age in the United States), we will terminate your Account.
2. Your Rights to Use the Services.
a. Subject to your compliance with these Terms, so long as you have a valid Account, ProjectMark grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Services, solely for their intended purposes. Moreover, if you choose to use a Mobile App, ProjectMark grants you a limited, non-exclusive, non-transferable, revocable license to download the Mobile App on your mobile device solely to enable you to access the Services in accordance with these Terms so long as you have a valid Account. Your rights to use and access the Services and/or any Mobile App will be limited to those expressly granted in this Section 3. ProjectMark and its licensors reserve all rights and licenses in and to the Services and all Mobile Apps not expressly granted to you under these Terms. ProjectMark may change or update the Services or certain features thereof from time to time, without prior notice to you.
b. We are a vibrant company with a lot of ideas. Therefore, we need to reserve the right at anytime and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that, subject to any obligations of ProjectMark pursuant to any Separate Subscription Agreement between you and ProjectMark, ProjectMark shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services (or any part thereof).
c. All Service Content is protected by the copyright laws in the United States and in foreign countries. While you are permitted to use and access Service Content through your use of the Services,all other copying, use, and distribution of any Service Content is expressly prohibited.
d. NoService Content or other information of any sort accessed or made availablethrough use or access to the Services may be used, copied, or transmitted inany manner for non-personal or commercial purposes unless you first obtainProjectMark’s written consent (which may be withheld in ProjectMark’sdiscretion).
3. Prohibitions and Use Policies.
a. You acknowledge that the Services contains trade secrets of ProjectMark and its licensors, and, in order to protect such trade secrets and other interests that ProjectMark and its licensors may have in the Services, you may not, and you agree not to, reverse engineer, decompile or disassemble any software code or system that allows access to the Services. In addition, you may not, and you agree not to: (i) sell or sublicense the Services;(ii) modify the Services; (iii) distribute or copy the Services, or any content available through the Services (inclusive of Service Content) in whole or in part; (iv) use the Services in any unlawful manner, for any unlawful purpose,or in any manner inconsistent with these Terms; (v) access or use any areas of the Services for which ProjectMark has not granted you authorization, or tamper or interfere with ProjectMark’s computer systems or the technical delivery systems of ProjectMark’s providers; or (vi) encourage, authorize, or enable anyone to do any of the foregoing.
b. You may not access our Services if you are from a territory where U.S. businesses are prohibited from engaging in business (such as Cuba, Iran, North Korea, Sudan, or Syria) or if you have been designated a Specially Designated National, Denied Person, or Denied Entity by the U.S. government.
c. You acknowledge and agrees that ProjectMark is not required to monitor or police communications or data transmitted through the Services and that ProjectMark shall not be responsible for the content of any such communications or transmissions. You shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others.
d. You agree not to harvest or collecte mail address or other personally identifiable information from other users of our Services for sending unsolicited communications of any kind. You further agree not use automated scripts to collection information available through use or access to the Services. In addition, you agree not to use or access the Services in any manner to:
- harass or advocate harassment of any person;
- exploit or attempt to exploit people in any sexual, violent or otherwise inappropriate manner;
- solicit personal information from anyone under 18;
- promote information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous or otherwise objectionable;
- upload, post, email,transmit or otherwise make available any content that we deem to be harmful, threatening, abusive, harassing, vulgar, obscene, pornographic, hateful, orracially, ethnically or otherwise objectionable;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
- transmit "junkmail," "chain letters," or unsolicited instant messaging, or"spamming" in any fashion;
- solicit passwords or personal identifying information for commercial or unlawful purposes from users of the Services;
- promote pyramid or ponzi schemes.
- upload, post, email,transmit or otherwise make available any material that contains software viruses, trojan horses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- use or attempt to use another's Account or create a false identity of any kind; or
- commit or cause the commitment of any "click-fraud" or other act, such as using spiders, robots, web scrapers, screen scrapers, internet macros, or other automated software programs that intentionally misrepresents advertising, page-views, or voting metrics on the Websites or otherwise.
4. Your Content; Ownership and License Granted.
a. Through use of the Platform and the Services, you are allowed to post, upload, store,share, send, or display images, video, data, text (generally, “Your Content”). Your Content may consist of Your Personal Information and Your Public Content. For purposes of these terms, “Your Personal Information” includes information meeting the definition of PII pursuant to our Privacy and Security Policy. “Your Public Content” is any of Your Content that you post, upload, store, share send, or display via use of the Services that (i) you make available in public areas of the Services (which information may include information that identifies you), or (ii) is anonymized in a reasonable manner by us to ensure that it cannot be used to identify you or your employees, agents, or customers. For example purposes, Your Public Content may include digital photos of real estate development and/or construction projects you have been or are presently involved. For clarity, Your Public Content does not include Customer Data as that term is defined in any Separate Subscription Agreement, if applicable, and our use of Customer Data shall be subject to the terms of any such Separate Subscription Agreement.
b. All of Your Content remains yours and ProjectMark does not claim any ownership rights in any of Your Content. Nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit Your Content. You represent and warrant that you or your licensors own all right, title and interest in and to Your Content and that you have all rights in Your Content necessary and sufficient to transmit to, upload to, transfer to, process on, store in, or cause to interface with, your Account or the Services, and to grant the rights contemplated by these Terms to us. You are solely responsible for all of Your Content, including but not limited to the development, transmission, operation, maintenance, storage, claims, and use of Your Content.
c. By using our Services, and subject to any restrictions set forth in any Separate Subscription Agreement, you hereby grant ProjectMark a limited, non-exclusive, royalty-free, perpetual (except as stated in sub-part (d) below) license to (i) access, collect, use, re-use,share, modify, store, monitor, copy, process, analyze, transmit, and display Your Public Content within or outside of the Platform and (ii) allow other registered users of our Services to use, share, store, copy, transmit and display Your Public Content on the Platform, in each such case (1) in order to provide the Services (as presently contemplated and as modified in the future)to you specifically and to all users generally (2) to assist us in (a) improving our Services or (b) developing new products or services, (3) to monitor compliance with these Terms by you, or (4) for any other legitimate business purpose (including, by way of example and not limitation, marketing and promoting our Services through social media or other marketing channels) (the “RightsGranted”). In addition, if you are an Authorized User of an organization using the Services, you hereby agree and consent to allow the administrator of your organization’s account to access, collect, use, re-use, share, modify, store, monitor, copy,process, analyze, transmit, and display Your Content within the Services, and you acknowledge that you have no individual ownership or interest in YourContent separate from your organization’s rights therein.
d. Notwithstanding anything contained in sub-part (b) above, Your Personal Information shall be governed by our Privacy and Security Policy and upon termination of your Account, the Rights Granted with respect solely to Your Personal Information shall terminate.
a. If you have subscribed to receive access to paid components of our Services, you will have selected a payment plan based on the aspects of the Services identified at the time of your subscription, and will have agreed to have provided correct credit card or other payment instruments and billing information. You understand and agree that we can and do use third-party payment processors and you authorize us (and our payment processing vendors) to bill your credit card or other payment instruments in accordance with your payment plan. We may elect to bill you through an invoice, in which case, full payment shall be due as specified on the applicable invoice. Past due fees are subject to a finance charge of 1.5% per month or the highest amount permitted by applicable law (if less), plus all expenses of collection.
b. Changes to your fees may be made in accordance with your chosen payment plan provided, however, if no such terms are included, we have the right to change the fees for your payment plan on thirty (30) days notice to you sent to the email associated with your Account. Your continued use of the Services shall constitute your agreement to any price changes. You agree that you must dispute any charges levied by us against you within 60 days after the earlier of the date (i) we bill your credit card or other payment processors or (ii) we invoice you. All amounts paid to us by you are non-refundable.
6. Ownership. ProjectMark and its licensors reserve sole and exclusive ownership of the Services, the Platform, the Websites, the Mobile Apps, and all copyrights, patents, trademarks, and other intellectual property rights therein other than Your Content or content that would meet the definition of Your Content of other users of the Services (the “ProjectMark Materials”). You may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on or through use of theServices. If you provides ProjectMark with any suggestions, comments, or other feedback regarding the Services (“Feedback”), you acknowledge that such Feedback will become the exclusive property of ProjectMark, and ProjectMark may use (or not use) any such Feedback in any manner and for any purpose, without compensation to you and without implying or creating any interest on your part in any of ProjectMark’s products or services that may be based on such Feedback. You hereby irrevocably assign and agree to assign to ProjectMark all right, title, and interest in any Feedback you provide.
7. Account Termination and Suspension.
a. You may terminate and deactivate your Account at any time by following the protocols required under the Services or otherwise contacting us at email@example.com following our manual deactivation protocols. You will remain responsible for any fees that may be owed to us under your applicable service plan.
b. ProjectMark may suspend your Account and your use of the Services as ProjectMark deems appropriate to prevent, investigate, or otherwise address any suspected misuse of the Services. Additionally, we may also completely deactivate, terminate, and delete your Account and your rights to use or access the Services at any time for any reason, or no reason, with or without notice.
c. Upon termination of your Account by you or by us, ProjectMark shall have no obligation to maintain Your Content or provide Your Content to you. If your Account is terminated, the Rights Granted shall continue except with respect to Your Personal Information.
d. All provisions of these Terms that, by their nature, should survive termination of your Account, shall survive.
8. Third Party Interactions.
a. You are solely responsible for your interaction with other users of the Services and/or any third-party that advertises or otherwise markets themselves via thePlatform (each a “Service Advertisers”). While we reserve the right to monitor disputes between you and other users or Service Advertisers, we have no obligation to doso. You agree not to hold us responsible for the actions or inactions of any such Service Advertisers or users, including things posted or offered to you. You acknowledge that ProjectMark is solely a facilitator of information provided to it by its users and Service Advertisers through the Platform. We are not involved in the actual development of the content submitted by users or Service Advertisers (including information related to any Service Advertiser’s purported service or product offerings orany information about any other user’s qualifications) (collectively “Other User Content”) and have detrimentally relied on the representations made by you, other users, and the Service Advertisers in order to provide the Services. We have no control over and do not guarantee (a)the truth or accuracy of any advertisements or Other User Content, (b) any Service Advertiser will actually complete a transaction with you at all or to your satisfaction, or (c) any user will perform any services or transaction with you to your satisfaction or accurately represent any project such user promotes(directly or indirectly) through the Platform.
b. If you have a dispute with one or more users of the Services or any Service Advertiser, you release ProjectMark (and our officers, directors, agents,subsidiaries, joint ventures and employees) 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. If you are a California resident, you waive California Civil Code §1542, which says:
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.
9. Privacy and Security Policy. ProjectMark’s Privacy and Security Policy is incorporated herein for all purposes and each Party agrees to the provisions contained therein. If any portion of these Terms conflicts with any portion of the Privacy and Security Policy, the Privacy and Security Policy shall govern for all purposes.
10. Copyright and Intellectual Property Policy.
A. ProjectMark respects the intellectual property rights of others. If you believe your work has been copied or used in a way that constitutes copyright infringement, areaware of any infringing material on the Website or any Mobile App, or believe any material on the Website or any Mobile App infringes any other intellectual property right (including, without limitation, trademark rights and rights to publicity and privacy), please contact ProjectMark's designated copyright agent at the address listed below and provide the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) (a "DMCANotice"):
(1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(2) Identification of the copyrighted work(s) that you claim to have been infringed;
(3) a description of where the material that you claim is infringing is located on the Website or the applicable Mobile App;
(4) your address, telephone number, and email address;
(5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
The designated copyright agent for ProjectMark is:
Brady DeaneGroup, Inc.
Attn: DMCA Compliance Officer
235 Westlake Center, #397,
Daly City, CA 94015
Telephone: (415) 248-6227
If you submit a DMCA Notice hereunder, you shall be deemed a "Complaining Party" for purposes of these Terms. Please note that, due to security concerns, attachments cannot be accepted. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed. Moreover, this procedure is exclusively for notifying ProjectMark that your intellectual property rights have been infringed.
B. Upon receipt of a written DMCA Notice containing the information as outlined above, ProjectMark shall:
(1) Remove or disable access to the material that is alleged to be infringing;
(2) Forward the written DMCA Notice to such alleged infringer ("Alleged Infringer");
(3) Take reasonable steps to promptly notify the Alleged Infringer that it has removed or disabled access to the material.
C. Pursuant to 17 U.S.C. § 512 et. al, an Alleged Infringer may provide ProjectMark's designated copyright agent with a counter notice objecting to the Complaining Party's allegations and ProjectMark's removal of the alleged infringing material (a "Counter DMCA Notice"). To be effective, a Counter DMCA Notice must be a written communication provided to ProjectMark's designated copyright agent that includes substantially the following:
(1) A physical or electronic signature of the Alleged Infringer;
(2) Identification of the material that has been removed or to which access has been disabled andthe location at which the material appeared before it was removed or access to it was disabled;
(3) A statement under penalty of perjury that the Alleged Infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(4) The Alleged Infringer's name, address, and telephone number, and a statement that the Alleged Infringer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Alleged Infringer's address is outside of the United States, for any judicial district in which the ProjectMark may be found, and that the Alleged Infringer will accept service of process from the person who provided the DMCA Notice or an agent of such person.
D. Upon receipt of a Counter DMCA Notice containing the information as outlined in 1 through 4 above, ProjectMark shall:
(1) Promptly provide the Complaining Party with a copy of the Counter DMCA Notice;
(2) Inform the Complaining Party that it will replace the removed material or cease disabling access to it within ten (10) business days;
(3) Replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter DMCA Notice, provided ProjectMark's Designated Agent has not received notice from the Complaining Party that anaction has been filed seeking a court order to restrain Alleged Infringer from engaging in infringing activity relating to the material on ProjectMark's network or system.
11. Warranty Disclaimer. TO THE EXTENT PERMITTED BY LAW, THE SERVICES, THE WEBSITES, THE MOBILE APPS, AND ALL CONTENT RELATED THERETO ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND PROJECTMARK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, TITLE, QUIET ENJOYMENT, ANDFITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, PROJECTMARK SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY SERVICE OR PRODUCT OFFERED BY PROJECTMARK WILL MEET ANY PARTICULAR REQUIREMENTS; (ii)THAT SERVICES OR PRODUCTS OFFERED BY PROJECTMARK WILL BE UNINTERRUPTED, TIMELY,SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR(iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF YOUR USE OF THE PROJECTMARK SERVICE OR ITS WEBSITES OR MOBILE APPS OR ANYCOMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND ITIS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT PROJECTMARK CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT PROJECTMARK CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BETHE MINIMUM PERMITTED UNDER SUCH LAW.
12. Indemnity. You will indemnify, defend and hold harmless ProjectMarkand its officers, directors, employee and agents, from and against any third-party claims, disputes, demands, liabilities, damages, losses,and costs and expenses, including, without limitation, reasonable legal and professional fees, arising out of or in any way connected with (i) any violation of these Terms by you, or (iii) allegations that Your Content violates the rights in any manner of another person or entity, provided that ProjectMark:(a) promptly notifies you in writing of the claim; (b) grants you sole control of the defense and settlement of the claim; and (c) provides you,at your expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
13. Limitation of Liability.
a. Consequential Damages. IN NO EVENT SHALL PROJECTMARK BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT, COVER, OR SUBSTITUTION GOODS OR SERVICES; LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES, ORPROFITS; INTERRUPTION OF BUSINESS; TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO; OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, REPUTATIONAL,OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF PROJECTMARK HAS BEEN INFORMED IN ADVANCE OFTHE POSSIBILITY OF – OR COULD HAVE FORESEEN — SUCH COSTS, LOSSES, OR DAMAGES.
b. Direct Damages Cap. EXCEPT AS SET FORTH BELOW, PROJECTMARK’S TOTAL AGGREGATE LIABILITY TO CLIENT SHALL NOT EXCEED, IN ANY EVENT, THE GREATER OF (I) $100.00 OR (II) THE FEES PAYABLE BY CLIENT TO PROJECTMARK HEREUNDER DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S)GIVING RISE TO THE LIABILITY.
c. Scope and Exceptions. THE LIMITATIONS AND EXCLUSIONS SET FORTH INTHIS SECTION ENTITLED (LIMITATION OF LIABILITY):
i. SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW;
ii. SHALLNOT DISCLAIM, LIMIT, OR CAP CLIENT’S OBLIGATIONS TO PROJECTMARK;
iii. REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES; AND
IV. SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND SHALL APPLY IN ANY AND ALL CIRCUMSTANCES,INCLUDING WITHOUT LIMITATION IN THE EVENT OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY PROVIDED HEREIN. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
14. Dispute Resolution for US and Canadian Residents. If there is a dispute, our user support team is happy to try to resolve the issue. If that does not work and you live in the United States or Canada, your options are to go to small claims court or bring a claim in binding arbitration; you may not bring that claim in another court or participate in a non-individual class action claim against ProjectMark. This Dispute Resolution section applies only if you live in the United States or Canada. If you live outside the United States of Canada, Dispute Resolution for non-US and non-Canadian Residents of these Terms shall apply to you.
a. Small Claims. Either of us can bring a claim in small claims court in (a) San Francisco, California,(b) the county where you live, or (c) another place we both agree on, as long as it qualifies to be brought in that court.
b. Arbitration. If any dispute cannot be resolved amicably and informally and a small claims action is not initiated, ProjectMark and you agree to resolve any claims related to these Terms (or our other legal terms) through final and binding arbitration, regardless of the type of claim or legal theory. If one of us brings a claim in court that should be arbitrated and the other party refuses to arbitrate it, the other party can ask a court to force us both to go to arbitration (compel arbitration). Either of us can also ask a court to halt a court proceeding while an arbitration proceeding is ongoing. With respect to any arbitration proceeding the following process shall be followed:
i. Any disputes involving a claim or claims of ten thousand dollars ($10,000) or less, in the aggregate must be resolved through binding,non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference) (each a “Sub 10K Arbitration”).
ii. AnySub 10K Arbitration shall be conducted through the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules,Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer-Related Disputes.
iii. The following rules will apply to any Sub 10K Arbitration: (a) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (b) the arbitration must not involve any personal appearance by the parties or witnesses (unless we and you agree otherwise); and (c) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction.
iv. Disputes that involve a claim (or claims) of more than ten thousand dollars ($10,000) in the aggregate must be resolved per the AAA’s rules about whether the arbitration hearing has to be in-person.
v. Any judgment rendered by the arbitrator in any arbitration proceeding may be entered in any court having jurisdiction and the arbitrator's decision shall be final and legally binding.
c. No Class Actions. ProjectMark and you each agree that each of us can only bring claims against the other on an individual basis. This means:(a) neither of us can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action; (b) an arbitrator can’t combine multiple people’s claims into a single case (or preside over any consolidated, class, or representative action); and (c) an arbitrator’s decision or award in one person’s case can only impact that user, not other users, and can’t be used to decide other users’ disputes. If a court decides that this “No class actions” clause isn’t enforceable or valid, then this entire Dispute Resolution for US and Canadian Residents section will be null and void, but the rest of the Terms will still apply and the Dispute Resolution for non-US and non-Canadian Residents of these Terms shall apply instead to you with respect to dispute resolution as if you were not a resident of the United States or Canada.
d. Changes to this Section. Notwithstanding the Right to Modify Terms section of these Terms, if ProjectMark changes this Dispute Resolution for US and Canadian Residents section after the date you last indicated acceptance to theseTerms, you may reject any such change by providing ProjectMark written notice of such rejection by mail or hand delivery to: ProjectMark, Inc. Attn: Legal, 235 Westlake Center #397, Daly City, CA 94105, or by email from the email address associated with your Account to: firstname.lastname@example.org, within 30 days of the date such change became effective, as indicated by the "last updated on" language above. To be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Dispute Resolution for US and Canadian Residents section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and ProjectMark in accordance with the provisions of this Dispute Resolution for US and Canadian Residents section as of the date you last indicated acceptance to these Terms.
15. Dispute Resolution for non-US and non-Canadian Residents. If there is a dispute, our user support team is happy to try to resolve the issue. If that does not work and you live outside of the United States or Canada, you and ProjectMark that the federal and state courts within the County of San Francisco in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of these Terms. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts.
16. Right to Modify Terms. ProjectMark reserves the right, in its sole discretion, to change, modify, add, or delete portions of these Terms at any time to clarify our practices, reflect new or different practices, comport with changes in applicable law(s) or for any other reason. If we make changes to these Terms, we will notify you using prominent means such as by email notice sent to the email address specified in your Account, posting a notice through our Services, and/or requiring you to agree to any such changes upon your attempt to continue to use the Services. Any modifications will become effective on the day they are posted unless stated otherwise. Your continued use or access of the Services in any manner after any such changes occur shall constitute your acceptance of the new terms. Any revised Terms shall supersede all previous Terms. Should you have any questions regarding the specific provisions of these Terms (as amended), please direct them to email@example.com.
a. Governing Law. These Terms are governed by the laws of the State of California, without reference to its choice or conflict of law principles.
b. Assignment. Neither ProjectMark nor you may assign these Terms without the other party’s prior written consent and any attempt to do so will be void, except that ProjectMark may assign these Terms,without your consent, to a successor or acquirer, as the case may be, in connection with acquisition of ProjectMark by operation of law or via the sale of all or substantially all of ProjectMark’s assets or all or substantially all of the assets that allow for provision of the Services. Subject to the foregoing, these Terms willbind and benefit the parties and their respective successors and assigns.
c. No Election of Remedies. Except as expressly set forth in these Terms,the exercise by either party of any of its remedies under these Terms will not be deemed an election of remedies and will be without prejudice to its other remedies under these Terms or available at law or in equity or otherwise.
d. Severability. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of these Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
e. Legal Actions and Notices. No action, regardless of form, arising out of or relating to these Terms may be brought by either party more than one (1) year after the cause of action has accrued. Any notice or other communication to be given hereunder will be in writing and given by registered or certified mail return receipt requested, oremail (by us to the email associated with your Account or by you to firstname.lastname@example.org).
f. Relationship. You and ProjectMark agree that no joint venture, partnership, employment, contractor, or agency relationship exists between us.
g. Waiver. The failure by either you or ProjectMark to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of each applicable party.
h. Entire Agreement. This Agreement, inclusive of the Privacy and Security Policy and any applicable Registration Agreement which has been incorporated herein, constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter.
i. No Liability for Failure to Provide Services. It may happen that our platform is down,either for planned maintenance or because something goes down with our Websites or Mobile Apps. You accept that you will not have any recourse against us in such situations. Moreover, we are not responsible for delay or failure of our performance of any of the Services caused by events beyond our reasonable control, like an act of war, hostility, or sabotage; natural disaster; electrical, internet, or telecommunication outage; or government restrictions.