THIS IS A CONTRACT
BY USING THE SITE, YOU ARE AGREEING TO THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE ANY PART OF THIS SITE.
THIS AGREEMENT REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES, AS STATED IN THE "ARBITRATION" SECTION BELOW (OTHER THAN CERTAIN INTELLECTUAL PROPERTY DISPUTES DESCRIBED IN THAT SECTION, AND CLAIMS THAT MAY BE ADJUDICATED IN SMALL CLAIMS COURT), WHICH YOU SHOULD READ IN ITS ENTIRETY. YOU EXPRESSLY AGREE WITH US THAT ANY DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL ARBITRATION BETWEEN YOU AND US, AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
IF YOU ARE UNDER AGE 18, YOU MAY NOT USE THIS SITE.
The Services (described below) are intended for people 18 and older. You may not register as a User unless you are 18 or older. We expressly disclaim, and you expressly release Totalscope Estimating Services, LLC from, any and all liability whatsoever for any controversies, claims, suits, loss, penalties, or damages, arising from or in any way related to any misrepresentations regarding the age of any User. We will terminate with or without notice any User who we believe is under the age of 18.
RULES FOR INTERPRETATION
To help ensure that we all read and understand this Agreement the same way, here are a few rules of interpretation that apply to this Agreement:
OWNERSHIP, LICENSE AND RESTRICTIONS
The Site and Service is licensed, not sold, to you. All right, title and interest (including all copyrights, trademarks and other intellectual property rights) in this Site belong to Totalscope Estimating Services, LLC or our licensors.
We grant you a nontransferable, revocable, limited license to use the Site and Service on a device that you personally own or control. You may not install or use a copy of the software on a device you do not own or control. You may not distribute or make the Services vailable over a network where it could be used by multiple devices at the same time. You may not sell, rent, lend, lease, redistribute, or sublicense the Site or Service or work around any technical limitations in the software. You may not copy, reverse engineer, decompile, disassemble, modify, create derivative works or otherwise attempt to derive the source code of this software. Any use of the software and its content not explicitly permitted by these Terms is a breach of this agreement and may violate the law. If you violate these Terms, your permission to use this Site automatically terminates and you must immediately cease using the Site.
ACCESS TO THIS SITE
To access this Site or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of this Site that all the information you provide on this Site will be correct, current, and complete. If we believe the information you provide is not correct, current, or complete, we have the right to refuse you access to this Site or any of its resources, and to terminate or suspend your access at any time.
SERVICES & REGISTRATION
This Site provides access to the TotalScope software application for claim estimating, claim scope training, and claim handling and processing (the "Services"). Registration includes filling out questionnaires and documents directly with Totalscope Estimating Services, LLC. We do not control or confirm user generated data or content. Totalscope Estimating Services, LLC is not responsible for the truthfulness or reliability of any information provided by a User on or off this Site. We have no control over the acts or omissions of any User, on or off the Site.
Warning: ALL USE OF THE SERVICES IS AT YOUR SOLE RISK.
We hereby disclaim, and you hereby release Totalscope Estimating Services, LLC from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm or damages (a) arising from or in any way related to the Services or your interactions or dealings with other Users, including any acts or omissions of Users in any way using or having used the Services, on or off the Site, and (b) the use by any person of information provided on the Site. By using the information on this Site and any Services, you are solely responsible for such use.
To use the Services, you must register for an account by completing all required registration documents. As part of the registration process, you must provide: (a) information about yourself that is truthful, current, complete and accurate; and (b) update this information as often as necessary to keep it accurate.
You are solely responsible for maintaining the confidentiality of your password, username and all uses of your account. You agree not to use the account, username or password of anyone else. Multiple accounts are prohibited. You agree to have only one account and to keep your password secret. You agree to notify Totalscope Estimating Services, LLC immediately of any unauthorized use of your account.
By registering to become a User, you warrant and represent that:
ACCEPTABLE USE OF SITE – USER CONDUCT RULES
TotalScope requires a telemetry report for every file. If you do not include a telemetry report, and are not ordering a report through TS, TS reserves the right to order a report at a cost of $25.
You are responsible for all of your actions on this Site and you may not engage in any behavior that violates this Agreement.
You must comply with all applicable laws, ordinances, rules, and regulations regarding use of the Site, and will not access the Site from jurisdictions where it is illegal or prohibited. You may use this Site for purposes expressly permitted by this Site. As a condition of your use of the Site, you warrant to Totalscope Estimating Services, LLC that you will not use the Site for any purpose that is unlawful or prohibited by this Agreement. You may not (and may not authorize any party to) (i) co-brand this site, or (ii) frame this site, or (iii) hyper-link to this Site, without the express prior written permission of Totalscope Estimating Services, LLC. For purposes of this Agreement, "co-branding" means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a user the impression that such other party has the right to display, publish, or distribute this Site or content accessible within this Site. You agree to cooperate with Totalscope Estimating Services, LLC in causing any unauthorized co-branding, framing or hyper-linking immediately to cease. In addition, you may not use the Site in any manner which could disable, overburden, damage, or impair the Site or interfere with any other party's use and enjoyment of the Site. You may not obtain or attempt to obtain any materials, content, or information through any means not intentionally made available or provided for through the Site.
As a condition of your use of the Site as a User, you promise you shall not use the Site or its communications services to offer, sell or distribute any product, good or service.
You promise you shall not use the Site to engage in, or assist others to engage in, any of the following:
TERMINATION OR RESTRICTION OF ACCESS
Totalscope Estimating Services, LLC reserves the right, in its sole discretion, to terminate your access to any or all of this Site and the related services or any portion thereof at any time, without notice.
DISCLAMER OF WARRANTIES
Except as otherwise expressly provided, all content, information, Services and tools on this Site are provided on an "As Is", "As Available" basis. Use of this Site is solely at your own risk.
THE SITE AND SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, Totalscope Estimating Services, LLC, ITS SUBSIDIARIES, AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE SITE OR USER CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR RESULT IN ANY BENEFIT OR REVENUE; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS INCLUDING ANY FAILURE OF ANY SERVICE TO MEET YOUR EXPECTATIONS. WE ARE NOT RESPONSIBLE N ANY WAY FOR OFFERS MADE BY THIRD PARTIES THROUGH OUR WEBSITE. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
To the extent permissible by law, Totalscope Estimating Services, LLC expressly disclaims any and all other warranties.
Electronic Communications Privacy Act Notice (18 USC §2701-2711): Totalscope Estimating Services, LLC MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON OUR WEBSITE OR ANY WEBSITE LINKED TO OUR WEBSITE. Totalscope Estimating Services, LLC is not liable for the privacy of email addresses, registration and identification information, communications, confidential or trade-secret information, or any other User content stored on our equipment, transmitted over networks accessed by our Website, or otherwise connected with your use of the Service.
LIMITATION OF LIABILITY
IN NO EVENT WILL Totalscope Estimating Services, LLC AND ITS AFFILIATES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM, RESULTING FROM ANY USE OF THE SITE, OR THE CONTENTS THEREOF OR OF ANY HYPERLINKED WEBSITE INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, FAILURE OF PERFORMANCE, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS OR EQUIPMENT OR NETWORK FAILURE OR OTHERWISE, EVEN IF THERE IS NEGLIGENCE BY Totalscope Estimating Services, LLC OR AN AUTHORIZED Totalscope Estimating Services, LLC RESPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AGREE THAT YOUR USE OF THE SITE IS CONDITIONED UPON YOUR WAIVER OF ANY RIGHT TO SUE Totalscope Estimating Services, LLC AND ITS AFFILIATES OR TO PARTICIPATE IN ANY CLASS ACTION SUIT FOR DAMAGES OR LOSSES RESUTLING FROM YOUR USE OF THIS SITE.
YOU AGREE THAT Totalscope Estimating Services, LLC WILL NOT BE LIABLE FOR ANY DAMAGE RESULTING FROM YOUR USE OR INABILITY TO USE THIS WEBSITE OR THE CONTENT. THIS PROTECTION COVERS CLAIMS BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, AND ANY OTHER LEGAL THEORY. THIS PROTECTION COVERS Totalscope Estimating Services, LLC AND ITS AFFILIATES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS. THE TOTAL, CUMULATIVE, LIABILITY OF Totalscope Estimating Services, LLC, INCLUDING ALL AFFILIATES, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, IF ANY, FOR LOSSES OR DAMAGES SHALL BE LIMITED TO THE AMOUNT OF YOUR ACTUAL DAMAGES, NOT TO EXCEED U.S. $100.00. THE LIMIT OF LIABILITY MAY NOT BE EFFECTIVE IN SOME STATES. IF YOU ARE DISSATISFIED WITH THIS WEBSITE OR THE CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE.
You agree at your expense to indemnify, defend and hold harmless Totalscope Estimating Services, LLC and its affiliates from any and all loss, damage or liability including reasonable attorney’s fees arising from any third-party claim, action or allegations of infringement based on: (1) information, content or data you submitted in connection with the Site; (2) your use of this Site in breach of any term or condition in this Agreement; and (3) any violation of an applicable law, regulation or rights of another including misrepresentation and fraudulent conduct.
We may provide links to third-party websites or services and may link you automatically to sponsors or third-party’s websites or services. Totalscope Estimating Services, LLC provides such links solely as a convenience to you. Totalscope Estimating Services, LLC does not maintain, review, endorse or take responsibility for the content, products, services or other materials of linked sites. You understand and accept that you take full responsibility for your use of third-party websites or services.
You shall not use or access the Site in the European Union (the "EU"), and you shall not use the Services for the collection or processing of information or data from any EU subject. The Services are not intended to process personal data of subjects in the EU, and we do not offer goods or services to EU citizens. You shall not use the Services to collect, organize, transmit, update, store, delete or otherwise use or work with the personal data of individuals located within the EU.
COPYRIGHT AND INTELLECTUAL PROPERTY
TotalScope, the TotalScope design/logo, Totalscope Estimating Services, LLC, the Totalscope Estimating Services, LLC logo and any other product and service names that we may present on the Site are trademarks or registered trademarks of Totalscope Estimating Services, LLC Consulting, LLC. Other trademarks, service marks or logos that appear on the Site may be the property of third parties and are likely to be registered trademarks and subject to restrictions as to their use. Your use of the Site does not grant you a right or license to use or reproduce any Totalscope Estimating Services, LLC or third-party trademarks without first receiving the express permission of both Totalscope Estimating Services, LLC and the trademark owner.
RESOLUTION OF DISPUTES - ARBITRATION
This Agreement shall be governed by the laws of the state of Colorado without regard to its conflict of laws provisions. You agree that any disputes or claim arising out of or in connection with this Agreement shall be adjudicated in Denver County, Colorado. Any provision of this Agreement that is found to be invalid or unenforceable will be replaced by a valid and enforceable provision that achieves, as near as possible, the same objectives as the deleted provision was intended to achieve. The remaining provisions of this Agreement shall remain in full force and effect. The failure of Totalscope Estimating Services, LLC to act with respect to a breach by you does not waive the right of Totalscope Estimating Services, LLC to act with respect to similar future breaches. This agreement shall be binding upon each party’s successors and assigns. Totalscope Estimating Services, LLC shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond Totalscope Estimating Services, LLC’s reasonable control. Any notice required or given to you under this Agreement shall be sent to the e-mail address you provided by you upon registration. Except as otherwise expressly provided, all remedies provided for herein shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law or in equity. YOU AND Totalscope Estimating Services, LLC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE STIE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(a)Any and all disputes, controversies, claims and conflicts arising out of or in connection with this Agreement or its performance, including disputes on its validity, conclusion, binding effect, breach, nature, amendment, expiration and termination, shall be resolved through binding arbitration conducted under the Colorado Uniform Arbitration Act, C.R.S. § 13-22-201, et seq. with a single arbiter, and administered by Judicial Arbitrator Group, Inc., 1601 Blake St, Suite 400, Denver, CO 80202, Tel 303-572-1919, Fax 303-571-1115 ("JAG" ) in Denver, Colorado . If JAG is no longer in existence, then Totalscope Estimating Services, LLC shall nominate a replacement arbitrator group located in Denver, Colorado. The arbitrator shall use his reasonable efforts to schedule and complete the arbitration within 90 days after the arbitrator is selected, and may participate in any depositions.
(b)The arbitrator shall be selected from JAG’s panel of arbitrators, shall be impartial and independent, and shall be knowledgeable and experienced in the subject matter of the arbitration. The arbitral proceeding shall accord to each of the parties the right of cross-examination of witnesses, the right to provide witnesses including expert witnesses, and the right to make both written and oral submissions.
(c)The Users are bound, each to each other, by this arbitration clause. Each User agrees that he or she may be joined as an additional party to an arbitration involving any other party or parties under this Agreement. If more than one arbitration is begun under this Agreement and any party thereto contends that two or more arbitrations are substantially related and that the issues should be heard in one proceeding, the arbitrator(s) selected in the first-filed of such proceedings shall determine whether, in the interests justice and efficiency, the proceedings should be consolidate before that arbitrator.
(d)All costs of arbitration shall, unless the arbitral award provides otherwise, be shared equally by the parties. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute; provided, however, that the arbitrator may award attorneys’ fees and costs.
(e)No party shall be entitled to commence or maintain any action in a court of law upon any matter in dispute arising from or in relation to this Agreement except in connection with the recognition or enforcement of an arbitral award granted pursuant to this clause.
(f)Any arbitration proceeding under this Agreement must be commenced no later than one year after the controversy or claim arises. Failure timely to commence an arbitration proceeding is both an absolute bar to the commencement of arbitration proceedings with respect to the controversy or claim and a waiver of the controversy or claim.
(g)Any party is entitled to apply to the arbitrator seeking interim or provisional relief until the arbitration award is rendered or the controversy is otherwise resolved. The arbitrator has the authority to issue orders granting interim or provisional relief.
(h)Any party has the right to appeal the arbitrator’s award to an appellate arbitrator by filing with JAG, no later than 20 days after transmittal of the award, a written brief, not to exceed 20 pages, stating the reasons why the arbitrator’s decision should be reversed or modified. The opposing party shall file with JAG and serve on the appealing party, no later than 20 days after receiving the appeal brief, an opposition brief, not to exceed 20 pages. The JAG is to appoint the appellate arbitrator who is to be a retired judge of a court of record in the state of Colorado. The JAG is to make this appointment directly, without submission of lists of proposed arbitrators, and the party filing the appeal must pay all JAG costs and the costs and fees of the appellate arbitrator related thereto.
(i)Either party has the right to request oral argument, which must be conducted no later than 14 days after the submission of the final brief. The appellate arbitration is to be based only on the record of the initial hearing and oral argument, if any. The appellate arbitrator is to render a written decision no later than 20 days after receiving the final appellate submissions. The appellate arbitrator’s decision may be a final decision or it may affirm, reverse, modify or remand the matter for further proceedings by the arbitrator or arbitral panel. However, the reversal, modification or remand may only be on one of the following grounds:
This Agreement is the complete and entire understanding and agreement between Totalscope Estimating Services, LLC and you in connection with your use of this Site, hyperlinks to the Site and the content and software displayed on the Site, and supersedes any prior agreements, proposals or understandings between you and Totalscope Estimating Services, LLC including prior versions of the Agreement. As a user of the Site you, you understand and are held responsible for periodically reviewing the terms of this Agreement. Totalscope Estimating Services, LLC may update this Agreement from time to time by posting revised versions of the Agreement on the Site without notice to you except that we will post the effective date at the top of the Agreement. Any continued use of the software or Totalscope Estimating Services, LLC service by you after such amendments have been posted shall be deemed your acknowledgement and consent to the amended terms.