Last Updated: April 12, 2018
These Terms provide that all disputes between you and Rhumbix will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the “Dispute Resolution and Arbitration” section below for the details regarding your agreement to arbitrate any disputes with Rhumbix.
Notwithstanding the foregoing, except as expressly set forth in Section 4, any access to or use of Rhumbix’s software-as-a-service platform made available through or in connection with the Site (the “Rhumbix Platform”) or any features thereof, such as access to the Rhumbix applications and data analysis tools, will be subject to a separate agreement with Rhumbix. Please contact Rhumbix at email@example.com for more information on the Rhumbix Platform.
1. Rhumbix Services Overview. Rhumbix creates efficiency, monitoring and reporting products for companies and individuals in the construction industry to monitor and improve performance, productivity, and safety of construction employees.
2. Eligibility. You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are registering for access to, or are otherwise accessing or using, the Service on behalf of an entity, you and such entity represent and warrant that (i) you have the right and authority to bind such entity to these Terms, (ii) such entity is fully aware of, understands, and agrees to be bound by these Terms (with the terms “you” and “your” as used herein referring to such entity), and (iii) you agree to be bound by these Terms on behalf of such entity.
3. Features and Registration. Some features of the Service are available without registration. However, to receive our e-mail newsletters, to contact Rhumbix regarding career opportunities, or to access or use the Free Trial (pursuant to Section 4 below), you may need to submit some information about yourself, such as your email address, name, phone number, or other information. Access to some features of the Service is free, such as receiving e-mail newsletters via our e-mail list. Except as expressly set forth in Section 4 below, your access to or use of the Rhumbix Platform or any paid features of the Service will be controlled by a separate agreement you enter into with Rhumbix.
4. Free Trial. Rhumbix may offer or make available a free trial of versions or features of the Rhumbix Platform through the Site (“Free Trial”). Unless you have entered into a separate written agreement with Rhumbix to govern your use of the Free Trial, these Terms govern your use of the Free Trial, as part of the Service. Rhumbix will determine, in its sole discretion, the availability, duration, and features of the Free Trial. You may be required to register for the Free Trial on the Site, as described in Section 3 above. Upon expiration or termination of the Free Trial, you will lose access to the Free Trial (unless you have entered into a separate written agreement with Rhumbix for a subscription to the Rhumbix Platform) and Rhumbix will have no obligation to store or permit retrieval of any of Your Data (as defined below).
Rights. If Rhumbix permits you to access or use the Free Trial: (i) subject to your ongoing compliance with these Terms, Rhumbix grants you a non-exclusive, non-transferable, non-sublicensable right, during the applicable trial period, to access and use the Free Trial as made available to you by Rhumbix solely for your internal business purpose; and (ii) you agree to provide feedback relating to the Rhumbix Platform as reasonably requested by Rhumbix. You hereby grant Rhumbix and its affiliates a worldwide, irrevocable, perpetual, royalty-free license (i) to exploit without restriction all feedback provided by you; (ii) to use information related to your use of the Free Trial (“Usage Data”) to improve Rhumbix’s products and services, and to use any non-personally identifiable Your Data; and (iii) to use all data made available to Rhumbix by or on behalf of your to perform its obligations hereunder. The non-public data related to your personnel, whether transmitted as part of the Free Trial, or otherwise provided to Rhumbix, by you, and identified as such, shall be deemed “Your Data.” Your Data does not include public domain or publicly available data, data independently derived by Rhumbix through analysis of the Your Data or Usage Data, or except as expressly described above, data obtained by Rhumbix from a third party. Except for the rights granted in this Agreement, you retain all right, title, and interest in Your Data. Except as expressly agreed, Rhumbix has no obligation hereunder to obtain any third party data or pay any usage fee therefor. Rhumbix may remove or restrict access to Rhumbix’s data, including if such data may violate applicable law, the source of such data becomes unavailable, or a third party brings or threatens legal action. You will obtain all permissions or approvals from each applicable data source, including from your personnel, as may be necessary or required to provide such data to Rhumbix in connection with the delivery of the Free Trial and comply with all applicable laws, rules, and regulations (including any applicable union rules and requirements) in your use of the Free Trial.
Restrictions. In addition to the prohibited conduct set forth in Section 5 below, you will not, directly or indirectly, and will not authorize any person, to the maximum extent permitted by applicable law, to (i) translate, adapt, or modify; (ii) write or develop any program based upon; (ii) sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to; (iii) transmit unlawful, infringing or harmful data or code to or from; (iv) replicate significant portions of Rhumbix’s data or any analysis provided of Customer Data, or (v) otherwise use except as expressly permitted hereunder, in each case of (i) – (v), the Free Trial (including all technology constituting or used to provide such Free Trial and any data Rhumbix provides or makes available to you as part of the Free Trial).
5. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
use the Service for any illegal purpose or in violation of any local, state, national, or international law;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 100) or any right or ability to view, access, or use any Material; or
attempt to do any of the acts described in this Section 5, or assist or permit any person in engaging in any of the acts described in this Section 5.
6. Third-Party Services and Linked Websites. Rhumbix may provide tools through the Service that enable you to export information to third party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
7. Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Rhumbix may in its sole discretion suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service, subject to Section 9 below. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
9. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If the modifications constitute a material change to these Terms, we will notify you by posting an announcement on the Service. However, it is your responsibility to read and become familiar with any modifications that we may make. Using the Service following notification of a material change to these Terms shall constitute your acceptance of the Terms as modified. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. Ownership; Proprietary Rights. The Service is owned and operated by Rhumbix. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Rhumbix are protected by intellectual property and other laws. All Materials contained in the Service are the property of Rhumbix or our third-party licensors. Except as expressly authorized by Rhumbix, you may not make use of the Materials. Rhumbix reserves all rights to the Materials not granted expressly in these Terms.
11. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify Rhumbix and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Rhumbix Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
12. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE RHUMBIX ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE RHUMBIX ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE RHUMBIX ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
13. Limitation of Liability
IN NO EVENT WILL THE RHUMBIX ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY RHUMBIX ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE RHUMBIX ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 133 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then, unless another location is expressly specified in these Terms, you and Rhumbix agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating any dispute.
16. Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and Rhumbix in the most expedient and cost effective manner, you and Rhumbix agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND RHUMBIX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 16.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Rhumbix will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Rhumbix.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Rhumbix’s address for Notice is: Rhumbix, Inc., 444 Townsend St., San Francisco, CA 94107. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Rhumbix may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Rhumbix must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Rhumbix will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Rhumbix in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with these Terms, Rhumbix will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Rhumbix for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND RHUMBIX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Rhumbix agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. If Rhumbix makes any future change to this arbitration provision (other than a change to Rhumbix’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Rhumbix’s address for Notice, in which case your account with Rhumbix will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 166 is found to be unenforceable, then the entirety of this Section 166 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 144 will govern any action arising out of or related to these Terms.
18. Contact Information. The Service is offered by Rhumbix, Inc., located at 1169 Howard St., San Francisco, CA 94103. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
19. Obtaining a Copy of These Terms. You may have these Terms mailed to you electronically by sending a letter to the address in Section 1818 with your electronic mail address and a request for a copy of these Terms.
20. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
21. Open Source Software. The Service may include open source software or third party software. Any such software is made available to you under the terms of the applicable licenses.