Last Updated: December 15, 2019
http://onedaycustomfloors.com and any of its affiliates (collectively “http://onedaycustomfloors.com, “we,” or “us”) operates an online marketplace for connecting users (a “User” or “you”) with relevant service providers in a geographic area (the “Services”), located at http://onedaycustomfloors.com or at any affiliated web location (the “Website”). All Users of our Websites are subject to the following terms and conditions, privacy policy (collectively, the “Terms”):
This Terms of Service is intended for Users Service Providers. Service Providers should pay particular attention to Section Nine, as well as the full Terms of Service.
PLEASE READ THE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL THE TERMS OF THIS TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, EXIT THIS PAGE AND DO NOT ACCESS OR USE THE SERVICE. USE OF THE SERVICE IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS OF SERVICE.
1. Updates to Terms of Service; Integration. We may, in our sole discretion, modify the Terms of Service (the “TOS”) by posting a notice on the Terms of Service page. The “Last Updated” date at the top the Terms of Service indicates when the latest modifications were made to the TOS. By continuing to access and use the Service you agree to any such modifications. Therefore, you are responsible for reviewing and should become familiar with any such modifications. You are encouraged to review this Terms of Service periodically and to check the “Last Updated” date at the top of the Terms of Service for the most recent version. In addition, when using services or features on the Service, you will be subject to any posted guidelines or policies applicable to such services or features that may be posted from time to time, including but not limited to our Privacy Policy, as noted below. All such guidelines or policies are hereby incorporated by reference into these Terms of Service.
2. Service Availability.
2.1 The Service may be modified, updated, interrupted, suspended or discontinued at any time, in the sole discretion of the Company, without notice or liability. The Service may be unavailable at certain periods, including but not limited to systems failures, anticipated or unanticipated maintenance work, upgrades or force majeure events.
2.2 Company reserves the right, at any time, in its sole discretion to modify, temporarily or permanently block access to, suspend, or discontinue the Service, in whole or in part, with or without notice and effective immediately to any User.
2.3 The Company will have no liability whatsoever for any losses, liabilities or damages you may incur as the result of any modification, suspension, or discontinuation of the Service or any part thereof.
3. Privacy Policy. Use of the Service is subject to the terms of our Privacy Policy which is hereby incorporated into and made part of this Terms of Service. Please carefully review our Privacy Policy. By using or accessing the Service, you agree to be bound by the terms of our Privacy Policy.
4. Age. The Service is meant for those at least eighteen (18) years of age. Use of the Service by anyone under this age is a violation of the Terms of Service.
5. Intellectual Property.
5.1 You acknowledge that all materials on the Service, including, but not limited to, the website design, application design, graphics, text, sounds, pictures, and other files and the selection and arrangement thereof (collectively, “Materials”), are the property of Company and/or its licensors, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. All rights to Materials not expressly granted in these Terms of Service are reserved to their respective copyright owners. Company authorizes you to view, download and/or print the Materials provided that you keep intact all copyright and other proprietary notices contained in the original Materials. Except as expressly authorized by the Terms of Service, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, scrape, copy, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of Company or the respective copyright owner. In the absence of a written agreement, you may not modify or adapt the Materials in any way or otherwise use them for any public or commercial resale purposes. The trademarks, service marks, trade names, trade dress and logos (collectively, “Marks”) contained or described in the Service are the sole property of Company and/or its licensors and may not be copied, altered or otherwise used, in whole or in part, without the prior written authorization of Company and/or its licensors. Company reserves the right to enforce its intellectual property rights fully under the law.
5.2 Your use of the Service is solely and exclusively under a limited license granted herein and you will not obtain any ownership interest therein through the Terms of Service or otherwise. Company retains the right to rescind and terminate the limited license granted hereunder at any time, for any reason. All rights not expressly granted herein by Company to you are fully reserved by Company, its advertisers and licensors.
5.3 Some of the company and product names, logos, brands, and other trademarks featured or referred to within the Service may not be owned by us and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse the Service.
6. Use of the Service, General, All Users
6.1 In the event you are required to establish an account to use the Service and/or take advantage of certain features, you agree to:
a. provide true, accurate, current and complete information about yourself as prompted by the Service;
b. as permitted, maintain and promptly update such information. If you provide any information that is false, inaccurate or outdated, or Company has reasonable grounds to suspect that such information is false, inaccurate or outdated, Company has the right to suspend or terminate your account and prohibit all current or future use of the Service by you; and
c. that your account is for your personal and/or business use. You may not resell the Service.
d. by creating an account, you agree to receive certain communications in connection with the Service.
6.2 You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your account. Your account is meant to be private and you shall not share accounts for any reason. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. You agree to be responsible for all charges resulting from the use of your account via the Service, including charges resulting from unauthorized use of your account.
6.3 You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, or create multiple accounts.
6.4 You agree to use the Service only for lawful purposes and that you are responsible for your use of and communications and content you may post via the Service. You agree not to post or transmit any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes upon others’ intellectual property rights, impersonates any individual or entity, or otherwise violates any applicable law. You agree not to solicit personal information from minors. You agree not to use the Service in any manner that interferes with its normal operation or with any other user’s use of the Service.
6.5 You may not do any of the following while accessing or using the Service:
a. access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of our providers;
b. probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
c. access or search or attempt to access or search the Service by any means other than through our currently available, published interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us;
d. forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information; or
e. disrupt or interfere with the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or otherwise creating an undue burden on the Service.
6.6 You may not use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Service. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any part of the Service.
6.7 You further agree that you will not access the Service by any means except through the interface provided by Company for access to the Service. Creating or maintaining any link from another application to any page at the Service without the prior authorization of Company is prohibited. Running or displaying the Service, or any information or material displayed via the Service in frames or through similar means on another website or application without the prior authorization of Company is prohibited. Any permitted links to the Service must comply with all applicable laws, rule and regulations.
6.8 Company makes no representation that Materials contained, described or offered via the Service are accurate, appropriate or available for use in any particular jurisdiction or that these Terms of Service comply with the laws of any specific country. Visitors who use the Service do so on their own initiative and are responsible for compliance with all applicable law. You agree that you will not access the Service from any territory where its contents are illegal, and that you, and not the Company Parties, are responsible for compliance with applicable law.
6.9 Your use of the Service is at your own risk, including the risk that you might be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.
6.10 Furthermore, you herein agree not to make use of the Services for:
a. uploading, posting, emailing, transmitting, or otherwise making available any content that shall be deemed unlawful, harmful, threatening, abusive, harassing, tortious, vulgar, obscene, libelous, or invasive of another’s privacy or which is hateful, and/or racially, ethnically, or otherwise objectionable;
b. causing harm to any minor in any manner whatsoever;
c. impersonating any individual or entity, including, but not limited to, any Company, group or forum leaders, or hosts or falsely stating or otherwise misrepresenting any affiliation with an individual or entity;
d. forging captions, headings or titles or otherwise offering any content that you personally have no right to pursuant to any law nor having any contractual or fiduciary relationship with;
e. uploading, posting, emailing, transmitting or otherwise offering any such content that may infringe upon any patent, copyright, trademark, or any other proprietary or intellectual rights of any other party;
f. uploading, posting, emailing, transmitting or otherwise offering any content that you do not personally have any right to offer pursuant to any law or in accordance with any contractual or fiduciary relationship;
g. uploading, posting, emailing, transmitting, or otherwise offering any unsolicited or unauthorized advertising, promotional flyers, “junk mail,” “spam,” or any other form of solicitation, except in any such areas that may have been designated for such purpose;
h. uploading, posting, emailing, transmitting, or otherwise offering any source that may contain a software virus or other computer code, any files and/or programs which have been designed to interfere, destroy and/or limit the operation of any computer software, hardware, or telecommunication equipment;
i. disrupting the normal flow of communication, or otherwise acting in any manner that would negatively affect other users’ ability to participate in any real-time interactions;
j. interfering with or disrupting any of the Services, servers and/or networks that may be connected or related to our website, including, but not limited to, the use of any software and/or routine to bypass the robot exclusion headers;
k. stalking or with the intent to otherwise harass another individual; and/or,
l. collecting or storing of any personal data relating to any other user in connection with the prohibited conduct and/or activities which have been set forth in the aforementioned paragraphs.
7. Third Party Websites
7.1 Links provided via the Service to Third-Party websites, and products and services offered therein, are provided only as a convenience. If you clickthrough using these links to other websites, you may leave the Service. We do not control nor endorse any such Third-Party websites. You agree that the Company Parties, as defined below, will not be responsible or liable for any content, goods or services provided or available via any Third-Party or for your use or inability to use a Third-Party website.
7.2 You will use such links at your own risk. You are advised that other websites on the Internet, including Third-Party websites linked from the Service, might contain material or information:
a. that some people may find offensive or inappropriate;
b. that is inaccurate, untrue, misleading or deceptive; or,
c. that is defamatory, libelous, infringing of others’ rights or otherwise unlawful.
7.3 We expressly disclaim any responsibility for the content, legality, decency or accuracy of any information, and for any products or services, that appear on any Third-Party website or in advertisements or content that Third Parties may have listed or offered on our Site.
8. Dealing With Service Providers.
8.1 The Company is not in the business of providing home improvement services of any kind. The Websites are for the sole purpose of connecting Users with Service Providers.
8.2 Upon providing us with your information and placing a request to be connected with a Service Provider we will attempt to match you with Service Providers in your area who may be interested in fulfilling your service need. However, we do not guarantee that we will be able to match your service needs with a Service Provider or that there are Service Providers in your area that are either capable or willing to complete your service needs.
8.3 Your interactions with Service Providers found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such parties. You agree and acknowledge that Company is not a party to any transactions you may enter into, except as may otherwise be stated herein. We make no guarantees, warranties or representations regarding the skills or undertakings of Service Providers or the quality of the job that he or she may perform for you if you elect to retain their services. We do not endorse or recommend the services of any particular Service Provider. It is entirely up to you to evaluate Service Providers and the Service Provider’s qualifications, and to enter into a direct contract or otherwise reach agreement with a Service Provider. Company does not screen Service Providers. Service Providers are not employees or agents of Company, nor is Compay an agent of the Service Providers. Company shall not under any circumstances be liable for any damages of any kind arising out of, or in connection with, or relating to, the products and services of a Service Provider.
8.4 Should you have a dispute with respect to any services provided by a Service Provider or the fees charged by any Service Provider you must address such dispute with the Service Provider directly. YOU HEREBY AGREE TO RELEASE THE COMPANY PROVIDERS FROM ANY DAMAGES OR CLAIMS (INCLUDING CONSEQUENTIAL AND INCIDENTAL DAMAGES) OF EVERY KIND OR NATURE, SUSPECTED AND UNSUSPECTED, KNOWN AND UNKNOWN, AND DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES AND YOUR DEALINGS WITH SERVICE PROVIDERS.
9. Use of the Company Service, Service Providers.
9.1 The Company is not in the business of providing home improvement services of any kind. The Websites are for the sole purpose of connecting Users with Service Providers.
9.2 Service Providers alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their businesses and the listings related to their products and services. Service Providers are responsible for obtaining any such permits, licenses or other governmental authorizations as may be required.
9.3 Information regarding the Service Providers shall be accurate in all regards including descriptions, photos, and any other representations made by Service Providers.
9.4 Service Providers are solely responsible for establishing the price for their products and services.
9.5 You understand and agree that leads are not guaranteed jobs, but merely consumer inquiries.
9.6 YOU ACKNOWLEDGE AND AGREE THAT TO KNOWINGLY SHARE, DISTRIBUTE, TRANSFER, OR SELL A USERS INFORMATION IS A VIOLATION OF THIS TERMS OF SERVICE..
9.7 By enrolling in the Company Service you are requesting, and you expressly consent to being contacted by us and by our agents and representatives via phone, fax, email, mail or other reasonable means, at any of your contact numbers or addresses, even if you are listed on any federal, state, provincial or other applicable “Do Not Call” list, and even if you have previously opted-out from receiving marketing emails from Company, in order that we may provide the Services set forth on our site, to service your account, to reasonably address matters pertaining to your account or for other purposes reasonably related to our business, including marketing related emails.
9.8 Service Providers are and shall remain an independent Contractor of the Company and nothing contained in this Agreement shall be deemed to create an employer/employee, principal/agent, partnership or joint venture relationship between the parties. The Company shall not provide the Service Provider with any benefits that the Company may provide to its employees and shall not be required to withhold income taxes on, or to pay payroll taxes. The Service Provider agrees that he shall be solely responsible for all excise, self-employment and other taxes relating to the receipt of payments hereunder. As an Independent Contractor, it is expressly agreed that the Service Provider operates at his/her own expense and risk. The Service Provider is not authorized to execute any agreements, make any changes in any agreements, incur or assume any obligations, liabilities or responsibilities, or perform any other act in the name of or on behalf of the Company. Each party shall have the obligation to supervise, manage, contract, direct, procure, pay, perform or cause to be performed all work and other obligations to be performed by such party pursuant to the terms of this Agreement and shall be liable for the acts or omissions of its or his/her employees and agents in performing its or his/her respective obligations or exercising its or his/her respective rights hereunder.
9.9 BY USING THE SERVICE, YOU HEREBY RELEASE THE COMPANY PARTIES FROM ANY DAMAGES OR CLAIMS (INCLUDING CONSEQUENTIAL AND INCIDENTAL DAMAGES) OF EVERY KIND OR NATURE, SUSPECTED AND UNSUSPECTED, KNOWN AND UNKNOWN, AND DISCLOSED OR UNDISCLOSED, ARISING OUT OF ABOVE SCREENING PROCESS OR IN ANY WAY CONNECTED WITH SUCH DISPUTES AND YOUR DEALINGS WITH USERS’ WRONG OR FALSE FULL INFORMATION. YOU AGREE TO NOT MAKE ANY CLAIM AGAINST COMPANY IN ANY COURT TO ASSERT OR DEFFEND ANY CLAIMS BETWEEN YOU AND THE COMPANY PARTIES.
10. Information You Provide to Us & TCPA Consent
10.1 When filling out our forms to request one or more services you will be prompted to provide information about yourself such as first and last name, email address, phone number, street address, zip code, comments, services, and other information as we may request from time to time. Some, if not all, of the information you provide to us may be sent to Third-Party Providers, so they can respond to your service request.
10.2 When you submit our forms or providing this information to us, you are giving us your consent and verification of your intention that you desire to be contacted by us and/or Third-Party Providers. You hereby authorize us and/or Third-Party Providers to communicate with you via phone, text, fax, email, SMS messaging, or other means, at any of the contact numbers or addresses provided, even if you have previously been or currently are listed on any federal Do Not Call List or other state, federal, city, county, or provincial list. This includes solicitations, notifications, appointments, scheduling, and follow ups for other purposes reasonably related to your service request including marketing related emails.
10.3 When you submit our forms or provide this information to us, you are also authorizing Company and Third-Party Providers to contact you using prerecorded telephone technology including prerecorded messages that are autodialed to call you regarding your use of the Services. You may receive multiple calls to the landline or mobile number you provided to us from up to four Third-Party Providers.
10.4 Your use of the Services, and your acknowledgement that you accept these Terms and Services by using the Services is your prior express consent for Third-Party Providers to use prerecorded telephone technology including prerecorded messages that are autodialed to call.
10.5 SMS Messaging. By filling in our form and submitting your information to us and Third-Party Providers, you acknowledge and agree that Third-Party Providers may send you informational text messages, SMS messages as part of their normal business practices. You may choose to opt out from receiving these SMS messages at any time by texting STOP from the mobile device that is receiving the messages.
10.6 Call Recording. You agree and acknowledge that we and/or Third-Party Providers may monitor and/or record any phone calls you make using the phone numbers listed on our websites.
11. Termination. You may terminate your use of the Service at any time. You agree that Company may terminate or suspend your access to all or part of the Service, with or without notice, in our sole discretion, at any time. Following the termination or cancellation of your access to the Service and/or your account, we reserve the right to delete all your data in the normal course of operations.
12. Representations. You expressly represent, warrant, and/or acknowledge that:
12.1 The information contained herein is for informational purposes only and is not intended as or should be construed as advice or recommendations and are not guaranteed to produce results.
12.2 Company does not warrant or guarantee the suitability or availability of any material or content, including without limitation any, data, products or services, found through the Service.
12.3 Company does not screen the authenticity or quality of any material or content or any provider of material or content, including, data, products or services found through the Service.
12.4 Company makes no representations or promises regarding any material or content, and that some of the material or content provided via the Service may be owned or licensed by Third Parties.
12.5 Company is not a party to any transaction between you and any Service Providers. Any dispute shall be resolved between Customers and Service Providers
12.6 Any information, including any data, Collective Content on the Services, including on any Facebook, Instagram or Twitter page, are for informational purposes only.
12.7 You assume all risk when using the Service, including all the risks associated with any online or offline interactions with other Members, including but not limited to Service Providers, and from additional fees or charges from your mobile carrier.
13. Warranties, Disclaimers and Limitations of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
13.1 YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND THE ASSOCIATED MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE. COMPANY, ITS PARENT, SUBSIDIARY AND OTHER AFFILIATED COMPANIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, THE “COMPANY PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY PARTIES MAKE NO WARRANTY THAT: (I) THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE SERVICE WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL, INCLUDING ALL MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH THE COMPANY SERVICE WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
13.2 THE COMPANY PARTIES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION OR ANY ‘BUG’ OF THE SERVICE; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR VIA THE SERVICE; (V) FOR ANY DISPUTES BETWEEN USERS OF THE SERVICE OR BETWEEN A USER OF THE SERVICE AND A THIRD PARTY INCLUDING SERVICE PROVIDERS; OR (VI) FOR ANY OTHER MATTER RELATING TO THE SERVICE OR ANY THIRD PARTY. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES THE COMPANY PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
13.3 NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE COMPANY PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE CHARGES PAID BY YOU DIRECTLY TO COMPANY VIA THE SERVICE, IF ANY, FOR SERVICES PROVIDED SOLELY AND DIRECTLY BY COMPANY TO YOU IN THE SIX (6) MONTHS PRIOR TO SUCH CAUSE OR CLAIM OR IF SUCH IS NOT APPLICABLE, A MAXIMUM OF ONE HUNDRED DOLLARS ($100).
13.4 YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM YOU MAY BRING MUST BE FILED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OCCURRED OR IT WILL BE PERMANENTLY BARRED.
13.5 SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
13.6 If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “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.”
14. Indemnification. You agree to indemnify, defend and hold harmless the Company Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to your use of the Service, any activity related to your account by you or any other person permitted by you, any Content that you submit to, post on or transmit through the Service, your breach of these Terms of Service, your infringement or violation of any rights of another, or termination of your access to the Service. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
15. Procedure for Notifying the Company of Copyright Infringement. Those who believe that their copyrighted work has been infringed or are aware of other infringing material, should contact us at the address listed below and provide us with the following information:
a. An electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed.
b. Identification of the copyrighted work claimed to have been infringed.
c. Information describing where the allegedly infringing material is located on the Service.
d. Your address, telephone number, and email address.
e. 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.
f. A statement by you that the above information in your notification is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf. The foregoing information may be emailed or mailed to our Copyright Agent at the addresses listed at the end of this Terms of Service.
Following receipt of the information listed above, in our sole discretion, we will remove or disable access to the infringing material and take reasonable steps to notify the user responsible for posting said material. The posting of infringing copyrighted material may result in the termination of user privileges of such user.
16. Miscellaneous. These Terms of Service constitute the entire agreement between Company Users of the Service with respect to the subject matter of these Terms of Service.
a. If any provision of these Terms of Service shall be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions will not be affected.
b. The failure of the Company Parties to insist upon strict adherence to any term of these Terms of Service shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term contained in these Terms of Service. You may not assign your obligations or rights hereunder to another entity or individual. We may transfer, assign or delegate these Terms of Service and its rights and obligations without your consent.
c. No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind us in any respect whatsoever.
17. Governing Law, Jurisdiction, Venue. This Agreement shall in all respects be construed in accordance with and governed by the laws of the State of Kentucky without regard to conflict of law principles. Both Parties consent to the exercise of personal jurisdiction by any such court with respect to any such proceeding. IN ANY CLAIM, ACTION OR PROCEEDING TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THE TERMS OF SERVICE INCLUDING, WITHOUT LIMITATION, RELATING TO YOUR USE OF THE SERVICE, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY. YOU MAY NOT UNDER ANY CIRCUMSTANCES COMMENCE, PARTICIPATE IN OR MAINTAIN AGAINST COMPANY ANY CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
18. Arbitration.
18.1 Notwithstanding anything to the contrary herein, any controversy or claim arising from or in any way related to this Agreement shall first be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in effect before a single arbitrator located in or near Grayson County, Kentucky.. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any controversy, claim, suit, injury or damage of any other party. Any suit involving enforcement of a decision arising as a result of such Arbitration may be brought only in the courts of the aforementioned jurisdiction. Company may seek any interim or preliminary relief from a court of competent jurisdiction in the aforementioned jurisdiction necessary to protect its rights pending the completion of arbitration. Each Party shall assume its own costs of arbitration.
18.2 By using the Website and/or the Services in any manner, you agree to the above arbitration clause. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Company. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
19. Notice of Privacy Rights to California Residents.
19.1 California law requires that we provide you with a summary of your privacy rights under California Civil Code Section 1798.83 (“Civil Code 1798.83”), the California Online Privacy Protection Act (“COPPA”) and beginning January 1, 2020, the California Consumer Privacy Act (“CCPA”).
a. California Civil Code 1798.83 (the “Shine the Light” law). Under Civil Code 1798.83 users who are California residents may request and obtain from us, once a year and free of charge, information about categories of personal information (if any) we disclosed to third parties for direct marketing purposes and the names and addresses of all third parties with which we shared personal information in the immediately preceding calendar year. If you are a California resident and would like to make such a request, please submit your request in writing to us using the contact information provided below.
b. California Online Privacy Protection Act (“COPPA”). In addition to the rights noted above, COPPA further requires us to allow you to control who you do not want us to share that information with. To obtain this information, please send a request by email to the address found below. When contacting us, please indicate your name, address, email address, and what Personally Identifiable Information you do not want us to share with our marketing partners. Please allow 30 days for a response. Also, please note that there is no charge for controlling the sharing of your Personally Identifiable Information or requesting this notice.
c. California Consumer Privacy Act (“CCPA”). The CCPA also provides the right to opt out from the sale of personally identifiable information to third parties. In addition, the CCPA provides you the right to access and delete personal information for California residents. To either this opt-out and/or how to delete personal information please send a request by email to the address found below. When contacting us, please indicate your name, address, email address, and what personally identifiable information you do not want us to share with our marketing partners and how you can access and delete personally identifiable information.
LIMITATION OF OUR LIABILITY
Please read this section carefully, as it may impact important legal rights.
The use of our Services and Website, and your interaction with any of our third party vendors, affiliates, contractors, service providers, and similar that may be put in touch with you via our Services is solely at your own risk. To the maximum extent legally permissible, you agree that http://onedaycustomfloors.com, its officers, directors, agents, employees, subsidiaries, joint ventures, successor entities, and any other similarly affiliated individuals or entities (“http://onedaycustomfloors.com and its affiliates”), shall not be liable for any damages whatsoever arising from your use of our Website or Services, or any other services derived directly or indirectly from your usage of our Services and Website. Damages for which http://onedaycustomfloors.com and it affiliates are not liable for include, but are not limited to, direct, indirect, special, punitive, exemplary, incidental or consequence damages of any kind, derived under any legal system or legal theory, regardless of the foreseeability of such damages, and our prior or assumed knowledge regarding the likelihood of such damages.
If such any dispute is adjudicated under laws which may limit a general release of this nature, or you are able to claim the protection of these laws in any way, you agree to waive your protections under these laws, to such an extent such a waiver is legally possible, or you agree that the foregoing limitation shall be amended to the maximum extent legally permissible to effect the intent of this section, which is to limit our liability arising from your usage of our Website and Services.
