Summit Excavating – Terms of Service
Summit Excavating Inc. and its affiliates (“Summit Excavating” “us”, “our”, or “we”) has created these Terms of Service (“Terms”) to govern the use of our websites, mobile websites, mobile applications (“Sites”) and the services, merchandise, or other products accessible, offered or provided by us or our marketing partners through or in connection with the Sites that link to these Terms (collectively, the “Services”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICES BECAUSE THEY ARE A LEGALLY BINDING DOCUMENT AND AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.
Terms of Service Highlights
Please also read our full Terms of Service for details and defined terms. By Using Our Services You Accept These Terms. Each time you access and/or use the Services, you agree to be bound by these Terms and any additional terms that will apply to you, prospectively. Learn more…
Binding Arbitration of All Disputes; No Class Relief. Each time you access and/or use the Services, you agree to be bound by these Terms and any additional terms that will apply to you, prospectively. More Info
Disclaimer of Warranties. We disclaim warranties and provide the Services “As Is.” More info…
Limitation of Liability. Our liability is limited. Read more…
Contact. Questions about our Terms may be sent to support@EZWebCenter.com or to Summit Excavating 3465 South Arlington Road, Suite E #133, Akron OH 44312, or as otherwise set forth in the Terms. Read more…
Effective Date: November 22, 2016
Summit Excavating Terms Of Service
1. ACCEPTANCE OF TERMS OF SERVICE
Updates to Terms. Summit Excavating reserves the right to update or otherwise change these Terms at any time by posting the most current version of the Terms on our Services with a new “Effective Date” shown. All changes are effective from the Effective Date. Your continued use of the Services after the new Effective Date signifies your agreement to any such changes.
Electronic Communications. By accessing or using the Services, you consent to having these Terms provided to you in electronic form and that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
Non-electronic Copy. You have the right to receive this Agreement in non-electronic form. To receive a non-electronic copy of these Terms, send a request letter and a self-addressed stamped envelope to: Summit Excavating, 3465 South Arlington Road, Suite E #133, Akron, OH 44312.
Contacting You. When you provide us with contact information in connection with a particular activity or product or otherwise when using our Services, such as an email address or telephone number, you agree that this action constitutes a purchase or inquiry establishing a business relationship with us. You expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent.
You attest that you have the legal authority over any contact information provided to us and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving), in accordance with applicable law.
Please keep your contact information up to date as you are solely responsible for any contact information you provide to us.
2. BILLING AND AUTOMATICALLY RENEWING SERVICES.
Purchasing our Products or Services. Please refer to the applicable offer for a description of our products and services such as our series, libraries and collections, or current subscription plans and pricing. Any terms and conditions of any offer disclosed to you when ordering are deemed part of these Terms.
Fees & Subscriptions. If you purchase any of our subscription or membership Services, Summit Excavating will bill you periodically for the offer you selected and will bill you the applicable fee (“Fee”) using the billing and purchasing information you provide (e.g., credit/debit card number, billing address, and expiration date) (“Billing Information”). By providing your Billing Information, you authorize Summit Excavating to charge your chosen payment provider (your “Payment Method”) pursuant to the offer you accepted, including any recurring Fees for any automatically renewing Services until you affirmatively cancel the Services or change your Payment Method.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, debit/credit card issuer or other provider of your chosen Payment Method (the “Payment Method Provider”). If Summit Excavating does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your account upon demand. In the event we are advised of insufficient funds in your account or credit to cover your payment by your Payment Method, we may re-present such un-cleared or rejected payment to your Payment Method Provider.
In the event we have to collect unpaid amounts you owe us, you will be liable for all collection costs, including attorneys’ and collection agency fees. Summit Excavating reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment and to update your information from available third party sources. In the event Summit Excavating cannot charge the Payment Method you provide, we reserve the right to terminate your order, subscription or membership Services and invoice you for any unpaid amounts.
Cancellation Rights. REGARDLESS OF THE TERMS OF THE OFFER YOU ACCEPT, IF YOU MAKE A REQUEST TO CUSTOMER SERVICE, YOU CAN CANCEL ANY MEMBERSHIP AT ANY TIME TO AVOID FUTURE CHARGES, OR TO RECEIVE A PRO RATA REFUND FOR AN ANNUAL MEMBERSHIP. YOU WILL RECEIVE A FULL REFUND FOR AN ANNUAL MEMBERSHIP IF YOU CANCEL WITHIN THE FIRST THIRTY DAYS AFTER YOUR INITIAL PAYMENT DATE.
Termination or Billing Inquiries. To terminate any Services or change your Payment Method or for any other billing related inquiries, please contact customer service at 330-818-5588 or contact us as set forth in the Section 11.
Current Billing Information Required. You must promptly notify Summit Excavating if your Payment Method is canceled (e.g., for loss or theft). If you fail to notify us, you remain responsible for any continued charges to the Payment Method you provided.
Accurate Information. For purposes of identification and billing, you agree to provide Summit Excavating with accurate, complete, and updated Billing Information required when purchasing online or offline, and provide Summit Excavating and its third party payment processor express authorization to charge the Fee at the time of purchase. Failure to comply with this provision (including, without limitation, falsification of any Billing Information) may, at Summit Excavating’s option, result in immediate suspension or termination of your right to use the Services.
Change in Fees for Recurring Charges. Summit Excavating reserves the right to change the fees for its merchandise and Services and will provide notice of any increase prior to your being charged.
Free or Introductory Promotional Offer. If you enrolled for any of our Services under a special introductory offer (for example, a discounted or free initial trial or free merchandise), you are subject to the terms of the offer you accepted and, unless you cancel within the time frame presented in the offer, the applicable regular Fee for the Services you selected will be posted to your Payment Method after the introductory offer or trial period is completed. We reserve the right to limit any introductory or trial offer to one per person/business/household.
3. USE OF THE SERVICES.
Personal Use. The content (which includes but is not limited to text, tests, photographs, video, graphics, music, images, animations, audio, software, plug-ins, and “applets” incorporated into the software, data, sounds, messages, comments) on the Services (“Content”) are intended for your personal, noncommercial use, and not for resale to any third party, in accordance with these Terms.
You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of our Site(s) so long as the link does not portray Summit Excavating or the Services in a false, misleading, derogatory, or otherwise offensive manner, or express or imply any endorsement by Summit Excavating of the sites from which you are linking. Further, the sites from which you are linking to the Sites must not contain any obscene, defamatory, pornographic, offensive or illegal content.
Modification to Services. Summit Excavating has the right to modify its Services (and products and services accessible through its Services) and Content at any time in its sole discretion. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Summit Excavating in providing its Content or Services is to cancel your order or stop using our Services.
No Binding Offer. Nothing on the Services constitutes a binding offer to sell, distribute or give away any products or services. We reserve the right at any time after receipt of your order to accept or decline such order, or any portion thereof, or to not ship to particular addresses, even after your receipt of an order confirmation or after you have been charged.
Any prices displayed on the Services are quoted in U.S. dollars and are intended to be valid and effective only in the United States. In the event the products and services are listed at an incorrect price, we have the right to refuse or cancel orders placed at the incorrect price, regardless of whether the order has been confirmed or you have been charged. If your order is cancelled by us after you have been charged, we will issue a credit. We reserve the right at any time to limit the quantities of products or services, which you, your family or any group seek.
Images of Products. Images available on or through the Services of any products may not accurately capture the actual appearance, color, look and feel, specifications, features, or functionality of such products.
Data Collection Policy. All data generated by or collected from us or our users while visiting our Services is our property. No party unaffiliated with us may collect or use, or direct, authorize or assist other persons or entities to collect or use, any data from a user, or a computer or device operated by a user, while accessing our Services without our prior express written permission. For example, no data may be collected, used or transferred for purposes of targeting any advertisements, segment categorization or any form of syndication which is related to our Services, the Content, or our users without our prior express written permission of in each instance. The data covered by this policy includes, but is not limited to, data collected via any advertising unit, widget, pixel tag, cookie, script or other data collection process.
Security of Username and Password. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify us immediately of any unauthorized use or theft of your account or any other breach of security (and to provide properly documented evidence as reasonably requested by us). We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you will be liable for losses incurred by us or another party due to someone else using your account or password. You may not use anyone else’s account at any time for any reason.
4. USE OF POSTING SERVICES.
Posting Services. The Services contain communication services designed to enable you to post and communicate content, such as reviews, (collectively, “User Content”) using the Services. You agree that all such User Content you submit, post, upload, embed, display or communicate (collectively, “Distribute”) through the Services will comply with these Terms and with the User Requirements set forth herein.
You acknowledge and agree that your User Content is public and that you have no expectation of privacy concerning your User Content. Therefore, exercise caution when posting any personal information; it may be seen and used by others and result in unsolicited communications.
Summit Excavating has no obligation to monitor User Content but reserves the right to review and remove any User Content at any time, without notice, for any reason and in its sole discretion. Summit Excavating specifically disclaims any liability with regard to the User Content and any actions resulting from your participation in any posting Services.
Summit Excavating IS NOT RESPONSIBLE FOR ANY USER’S MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT OR INFORMATION YOU POST ON OR THROUGH THE SERVICES.
Objectionable Content. If you encounter something you find objectionable and in violation of these Terms, you can report it to Support@EZWebCenter.com.
License to User Content. All User Content must comply with these Terms. By submitting, transmitting, or displaying your User Content on or through the Services, you automatically grant (and you represent and warrant that you have the right to grant) to Summit Excavating, its licensees, and their respective successors in business and assigns, officers, directors, employees, licensees, agents, representatives and other users of the Services, a worldwide, sublicenseable, assignable, perpetual, irrevocable, non-exclusive, royalty-free, unlimited right and license to use, reproduce, publish, distribute, publicly display and perform, reformat, adapt, modify and delete your User Content in connection with the Services (“License”).
Representation of Ownership. You retain copyright and other intellectual property rights with respect to any User Content that you submit or Distribute through the Services to the extent that you have such rights under applicable law. By posting User Content on the Services you represent and warrant that (i) you own such User Content or otherwise have the right to grant us the License set forth in these Terms; (ii) the User Content is accurate and not confidential and the distribution, submission, transmission, posting and use of your User Content on the Services is not in violation of any applicable laws or contractual restrictions or other third party rights (including, without limitation, privacy, publicity, and intellectual property rights); and (iii) you are solely responsible for, and Summit Excavating will have no liability in connection with, your User Content or any other User Content you access through the Services. Your ownership in your User Content does not confer any rights or access to the Services, nor any rights to other User Content or Summit Excavating Content stored by or on behalf of Summit Excavating.
Feedback. All comments, feedback or materials submitted by users to us, including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”), is received and treated by us on a non-confidential and unrestricted basis.
Summit Excavating is free to use, display, perform, distribute, copy, adapt, and promote the Feedback in any way, without compensation to you. You agree that in submitting Feedback, it will not violate any right of any third party, including any confidentiality, copyright, trademark, privacy or other personal or intellectual property or proprietary rights, and will not cause injury to any person or entity or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, commercial solicitations, or any form of “spam”.
User Requirements. You agree that you may not access or use the Services in order to:
- attempt to get a password, other account information, or other private information from a member or any other user of the Services;
- improperly use support or complaint buttons or make false reports to Summit Excavating administrators;
- sell, buy, license or transfer access to your account;
- copy, display, distribute, alter or modify the Services;
- use any automated software or devices, such as spiders, robots or data mining techniques such as scraping, spidering, crawling or any other techniques to download, store, distribute or otherwise reproduce Summit Excavating Content or to manipulate the Services;
- use or copy Summit Excavating Content including any data you view on and/or obtain from the Services to provide any product or service that is competitive to Summit Excavating, or its clients, as determined in Summit Excavating’s sole discretion;
- interfere with, interrupt, destroy or limit the functionality of the Services or any computer software or hardware or telecommunications equipment;
- use the Services in any manner that could damage, disable, overburden, or impair any Summit Excavating server, or networks connected to any Summit Excavating server, or interfere with any other party’s use and enjoyment of any Services;
- gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Summit Excavating server or to any of the Services, through hacking, cracking, and distribution of counterfeit software, password mining or any other means;
- reverse engineer, decompile or disassemble any software accessed through the Services, including any proprietary communications protocol used by Summit Excavating;
- use, upload, transmit, distribute or otherwise make available any material or information, which contain any materials that could infringe any copyright, trademark, patent, trade secret, publicity or privacy right or any other proprietary right or disclose any trade secret of or violate any confidential obligation of any person or entity;
- upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of any Services or any user’s computer;
- exploit, distribute or publicly communicate any error, miscue or bug which gives an unintended advantage;
- use any Services for any unlawful purpose or any illegal activity, or post or submit any content whatsoever that is false, defamatory, libelous, implicitly or explicitly offensive, vulgar, obscene, threatening, abusive, hateful, racist, discriminatory, of a menacing character or likely to cause annoyance, inconvenience, embarrassment, anxiety or could cause harassment to any person or include any links to pornographic, indecent or sexually explicit material of any kind, as determined in Summit Excavating’s sole discretion;
- post content that contains links to other sites that contain the kind of content, which falls within the descriptions prohibited by this section.
Digital Millennium Copyright Act (“DMCA”) Notice
Filing a Complaint. Summit Excavating has designated an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. We reserve the right to remove any User Content on the Services which allegedly infringes another person’s copyright. We are under no obligation to scan content posted for any violations of third party rights. However, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Services.
If you believe any materials on any Services infringes a copyright, you should provide us with a written request to takedown the allegedly infringing material in the form of a written letter, sent by fax or regular mail only, (“DMCA Takedown Notice”) that at a minimum includes:
- Identification of the URL of the Site and the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Your name, address, telephone number and email address (if available);
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
- The signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notwithstanding the foregoing, we reserve the right to ignore a DMCA Takedown Notice that is not in compliance with the DMCA.
Filing a Counter-Notice. If your material has been removed or blocked by us as a result of our receipt of a DMCA Takedown Notice, you may send us a request asking for the allegedly infringing material to be restored in the form of a written letter, sent by fax or regular mail only, (“DMCA Counter-Notice”) that at a minimum includes:
- Identification of the copyrighted work (or works) that was removed by Summit Excavating and the URL of the Site and location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the copyrighted work;
- Your name, address, telephone number and email address (if available);
- A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located, or the Commonwealth of Ohio if your address is outside of the United States;
- A statement that you will accept service of process from the person (or an agent of such person) who provided the DMCA Takedown Notice to us;
- A statement that you have a good faith belief that the allegedly infringing material identified above as the copyrighted work was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- A signature of a person authorized to act on behalf of the owner of the copyrighted work that was taken down;
When we receive the DMCA Counter-Notice, we will send a copy of the DMCA Counter-Notice to the party who originally sent us the DMCA Takedown Notice requested the removal of the allegedly infringing material and we will reinstate the allegedly infringing material, unless that party obtains a court order supporting removal of the allegedly infringing material. Notwithstanding the foregoing, we reserve the right to ignore a DMCA Counter-Notice that is not in compliance with the DMCA.
Both the DMCA Takedown Notice and the DMCA Counter-Notice must be sent to our designated DMCA designated agent addressed as follows:
c/o Summit Excavating
3465 South Arlington Road
Suite E #133
Akron, OH 44312
ATTN: IT Controller
5. PROPRIETARY RIGHTS IN CONTENT.
Ownership of Content and Marks. The Services, and all Content published on or accessible through the Services is owned by Summit Excavating or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. Summit Excavating owns a copyright in the selection, coordination, arrangement and enhancement of such Content and a copyright in the Services. All trademarks, logos, service marks, trade names, and trade dress appearing on the Services (“Marks”), are proprietary to Summit Excavating or its licensors.
You acknowledge that you do not acquire any ownership rights in any Content or Marks downloaded or accessed from the Services. You may not frame or utilize framing techniques to enclose any Mark or Content (including images, text, page layout, or form) nor use any Meta tags or any other “hidden text” utilizing Summit Excavating’s or its licensors’ name or Marks without the prior express written consent of Summit Excavating.
You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any Sites, Services or any of the Marks or Content, in whole or in part, without the prior written consent or Summit Excavating. Summit Excavating grants you a limited, revocable, non-sublicenseable license to access (but not through scraping, spidering, crawling or other technology or software used to access data), and display the Content (excluding any software code) solely for your use in connection with accessing and using the Services as reasonably necessary to use them for their intended purpose.
Summit Excavating and its licensors reserve all rights not expressly granted in and to its respective Marks and Content.
No Other License Granted. Except for allowing you to use the Services for your use as set forth herein, when you use the Services, you are not receiving a license or any other rights from Summit Excavating, including intellectual property or other proprietary rights of Summit Excavating. You understand that you have no rights to the Content or Services or any other Summit Excavating property except as indicated.
6. GENERAL INFORMATION
Age Requirements. You must be at least 18 years old or the age of majority in your state or country of residence, whichever is older, to use the Services.
No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there are be no third party beneficiaries to these Terms.
International Users. The Services can be accessed from locations around the world. Summit Excavating makes no representations that the Services, the Content or merchandise available through the Services, is appropriate for use at other locations outside the United States. Access to the Services from locations where the Services, merchandise or any of its Content is illegal is prohibited. If you access the Services from a location outside the United States, you are responsible for compliance with all local and international laws.
U.S. Export Controls. Software from the Services (“Software”) is subject to United States export controls. No Software may be downloaded from the Sites or otherwise exported or re-exported (i) into (or to a national or resident of) any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Links and Other Third Party Activities. You may be able to access other websites or resources through links accessible through Services. Because Summit Excavating has no control over such websites you acknowledge and agree Summit Excavating is not responsible for the availability of such external websites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials or available from such websites or resources, nor does Summit Excavating endorse any such websites or the products or services accessible on such websites. You further acknowledge and agree that Summit Excavating shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or resource.
7. LEGAL NOTICES.
The Services may include or give you access to third-party materials, services, or products or content (collectively, “Third Party Materials”) provided by Summit Excavating’s licensors, vendors, merchants, or marketing partners (“Third Parties”) which may be governed by additional terms and conditions. In some instances, these Third Parties may require you to agree to additional terms and conditions that are not set forth in these Terms prior to accessing or using such Third Party Materials on or through the Services.
Summit Excavating does not recommend or endorse the products, services or any other information of Third Parties on the Services. If you have a dispute with one or more Third Parties, you release Summit Excavating and the Released Parties (as defined below) from claims, demands, liabilities, costs or expenses 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) to the extent permitted by applicable law, 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.
The Content of the Services is for informational or entertainment purposes only and does not constitute and is not intended to be professional advice. You assume all risks associated with your use of the Services. Always seek the advice of a physician or other qualified health provider before starting any physical exercise, fitness or wellness regimens of any kind or the advice of a qualified professional regarding any financial, insurance or other important personal decisions you might make in connection with your use of the Services.
RELIANCE ON ANY INFORMATION ON THE SERVICES IS AT YOUR OWN RISK. UNLESS PROHIBITED BY APPLICABLE LAW, THE RELEASED PARTIES (DEFINED BELOW) ARE NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS, DRUG AND DEVICE APPLICATION OR OTHER INFORMATION, SERVICES, OR PRODUCTS THAT YOU OBTAIN ON OR THROUGH THE SERVICES.
Disclaimer of Warranties. YOU UNDERSTAND THAT YOUR USE OF THE SERVICES (INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE YOU EXPERIENCE FROM USING OR ACCESSING THE SITES AND SERVICES) IS AT YOUR SOLE RISK. YOU UNDERSTAND THAT THE SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY MATERIALS INFORMATION, PRODUCTS OR CONTENT INCLUDED IN OR ACCESSIBLE FROM THE SERVICES), ARE PROVIDED ON AN “AS IS”, “WHERE-IS” AND “WHERE AVAILABLE” BASIS, AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU.
YOU ACKNOWLEDGE THAT Summit Excavating MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU UNDERSTAND THAT Summit Excavating DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICES WILL MEET YOUR EXPECTATIONS. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THE TERMS OF THE DISCLAIMER SET FORTH IN THIS DOCUMENT.
IF YOU ARE DISSATISFIED WITH ANY OF THE PRODUCTS OR SERVICES OR CONTENT ACCESSIBLE OR CONTAINED IN THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, Summit Excavating DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE PRODUCTS AND SERVICES AND ALL INFORMATION, AND OTHER CONTENT (INCLUDING THIRD PARTY MATERIALS, INFORMATION, PRODUCTS, AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES.
Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Summit Excavating, OR ITS PARENT COMPANY AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (“RELEASED PARTIES”) BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SERVICES, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE.
UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. Summit Excavating’S THIRD PARTIES ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN Summit Excavating’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED WHAT YOU PAID FOR THE PRODUCTS OR SERVICES FOR THE LAST 90 DAY PERIOD YOU WERE CHARGED.
Indemnification. You agree to defend, indemnify and hold harmless Summit Excavating and its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, and licensors from and against all damages, losses, liabilities, claims, and costs (including, but not limited to, reasonable attorneys’ fees and costs including costs to respond to regulatory inquiries, actions or subpoenas) related to all third party claims, charges, and investigations, arising from, relating to, or caused by your failure to comply with these Terms.
Special State Disclosures
California Residents: If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
New Jersey Residents: The following are modifications to the provisions of these Terms identified by the same headers above and apply only to consumers who are residents of New Jersey. Except as modified below, the corresponding provisions above remain unchanged and applicable to N.J. residents:
- Disclaimer of Warranties. Summit Excavating’s disclaimers of liability for damages caused by any interruption, malfunction, impossibility of access, or poor conditions of the Services for any reason will not apply to damages directly caused by Summit Excavating’s gross negligence or willful misconduct. In addition, Company’s disclaimer of warranty as to the quality, accuracy, completeness or validity of information or Content is not applicable to information you access or receive in connection with the Services and provided by Summit Excavating. However, Summit Excavating does not guarantee that the use of the Services will meet your requirements.
- Liability Limitation. The limitation of liability does not apply to you for damages arising out personal injury, property damage, negligence or willful misconduct or any other cause of action arising from the acts of Summit Excavating but does apply to the acts or omissions of third parties. Company’s aggregate liability for all claims under any circumstances will not exceed the lesser of $1,000.00 or your actual, out of pocket costs and damages. In no event will Summit Excavating be liable for special, incidental, or consequential damages as stated in the Terms.
8. RESOLUTION OF DISPUTES FOR U.S. RESIDENTS.
Governing Law. These Terms shall be governed by and construed in accordance with the laws of the the State of Ohio without application of conflict of laws rules, except that the Arbitration provisions shall be governed by the Federal Arbitration Act.
Resolution of Any Dispute. In the event a dispute arises between you and Summit Excavating, we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting our customer care department or calling 330-818-5588 or writing us at Summit Excavating, 3465 South Arlington Road, Suite E #133, Akron OH 44312. If, however, there is an issue that needs to be resolved, the following provisions of this Section 8 describe how both of us will proceed:
Limitation of Legal Remedies. If there is a dispute that remains unresolved, INSTEAD OF SUING IN COURT, YOU AND Summit Excavating EACH AGREE TO THE FULLEST EXTENT PERMITTED BY LAW TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES, ON AN INDIVIDUAL BASIS, WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO Summit Excavating’S INTELLECTUAL PROPERTY RIGHTS; STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE; INDEMNIFICATION; CONTRIBUTION; INTERPLEADER; OR INJUNCTIVE RELIEF ARISING OUT OF A CLAIM. This agreement to arbitrate is intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claim(s)”). The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Jury Trial Waiver. YOU AND Summit Excavating EACH VOLUNTARILY WAIVE THE RIGHT TO TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US ARISING OUT OF THESE TERMS OR THE SERVICES.
Class Action Waiver. YOU AND Summit Excavating EACH AGREE THAT CLAIMS AGAINST THE OTHER MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class member or an opt-in party, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person (“Class Action Waiver”).
Arbitration Procedures. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought (a “Notice”). All Notices to Summit Excavating must be sent to the following address: 3465 South Arlington Road, Suite E #133, Akron OH 44312. All notices to you will be sent to the email or street address provided in your account, if available.
Upon receipt of such Notice, the receiving party will have a 60-day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such sixty-day cure period, you or Summit Excavating may commence an arbitration proceeding. Unless otherwise agreed to by you and Summit Excavating in writing, the arbitration will be governed and conducted by JAMS before a single arbitrator with substantial experience in the internet industry and shall follow substantive law in adjudicating the dispute, except that this section shall be construed as a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”). You and Summit Excavating agree that this section satisfies the writing requirement of the FAA.
The arbitration of any claim will be conducted in the State of Ohio, and for any non-frivolous claim that does not exceed $10,000.00, you shall have the choice as to whether the hearing is conducted in person or by telephone. For those claims that the arbitrator decides are not frivolous, Summit Excavating will: (1) pay all costs of the arbitration; (2) if you prefer, will conduct the arbitration by telephone, and (3) will not seek attorneys’ fees in the event Summit Excavating prevails. Each party will pay the fees and costs of its own counsel, experts and witnesses. The JAMS rules are available on its website at www.jamsadr.com. To the extent that this dispute resolution section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard shall control. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms including any claim that all or any part of these Terms are void or voidable. However, the preceding sentence shall not apply to the clause entitled “Class Action Waiver”.
Exception. All parties, including related third parties, shall retain the right to seek adjudication in a small claims tribunal for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal, shall be resolved by binding arbitration, with the exception of any Claim or action for indemnification, contribution, interpleader, or injunctive relief arising out of a Claim, which Claims or actions shall not be subject to arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.
Survival. This arbitration provision shall survive termination of these Terms.
Severability. If any provision of this Section 8 is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.
9. RESOLUTION OF DISPUTES FOR NON-US RESIDENTS.
If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Services or Terms and you are a non-U.S. resident, then you and we agree to send a written notice to the other providing a reasonable description of the dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this section.
Your notice to us must be sent to us at 3465 South Arlington Road, Suite E #133, Akron OH 44312, United States. For a period of sixty (60) days from the date of receipt of notice from the other party, Summit Excavating and you will engage in a dialogue in order to attempt to resolve the dispute, though nothing will require either you or Summit Excavating to resolve the dispute on terms either you or Summit Excavating, in each of our sole discretion, are unsatisfactory. Nothing in this section will prevent a party from pursuing their claims in court or another complaint process.
These Terms and policies incorporated herein are the entire agreement between you and Summit Excavating. They supersede any and all prior or contemporaneous agreements between you and Summit Excavating relating to your use of the Services. Summit Excavating may assign these Terms, in whole or in part, at any time. If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in the Terms are for convenience of reference only and shall not affect the interpretation or construction of this agreement. The failure of Summit Excavating to partially or fully exercise any rights or the waiver of Summit Excavating of any breach of these Terms by you, shall not prevent a subsequent exercise of such right by Summit Excavating or be deemed a waiver by Summit Excavating of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of Summit Excavating under these Terms and any other applicable agreement between you and Summit Excavating shall be cumulative, and the exercise of any such right or remedy shall not limit Summit Excavating’s right to exercise any other right or remedy.
11. CONTACT US.
Please email us at support@Summit Excavating.com or contact customer service at 330-818-5588 or write to us at: Summit Excavating, 3465 South Arlington Road, Suite E #133, Akron OH 44312, if you have any questions about these Terms.
Copyright © 2016 | Summit Excavating | All rights reserved | Effective 11/22/16