SERVICE PROVIDER’S TERMS OF SERVICE
HailOps, LLC (a limited liability company)
This Service Provider’s Terms of Service is effective as of 01 July, 2020.
1. HailOps, LLC (“HailOps” herein and sometimes referred to as “we” and “our”) allows consumers of HailOps (collectively, the “Consumers”) to provide reviews and ratings on a variety of service companies (collectively, a “Service Provider”) with whom they have had first-hand experiences. On behalf, and as representative, of a Service Provider (“You” or “Company”), You are permitted to use the website (www.HailOps.com) (the “Website” and/or “Application”) and the information contained therein subject to the terms and conditions contained in this Service Provider’s Terms of Service, which may be modified, amended, or replaced by HailOps from time to time at HailOps sole discretion (collectively, the “Agreement”). Such modifications will become effective immediately upon the posting thereof. This Agreement shall also govern other aspects of Your relationship with HailOps beyond Your use of the Website, as described herein.
2. In consideration of HailOps granting the Company access to its Website and the information contained therein, and in order to use the Website, You must read and accept all of the Terms and Conditions in, and linked to, this Agreement. It is the Company’s responsibility to review this Agreement on a regular basis to keep itself informed of any modifications. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE COMPANY ACKNOWLEDGES IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY ALL OF THE TERMS, CONDITIONS, AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU HAD SIGNED THIS AGREEMENT.
Terms and Conditions
3. Consumers may submit a review or report and other information (collectively, “Consumer Content”) on any Service Provider with which they have communicated or had another first-hand experience, whether or not work was started, performed, or completed. If the Company disputes any Consumer Content, the Company’s sole course of action with respect to such Consumer Content as it relates to HailOps and the Website is to use the Services (as defined below) which are available online at the Website.
4. By agreeing to the Terms and Conditions of this Agreement, the Company is hereby permitted to use the services offered to Service Providers including, without limitation, the ability to review Consumer Content pertaining to the Company, the ability to submit responses to Consumer Content, the ability to update and maintain profile information on the Company, the ability to use the dispute resolution process offered through the Website and facilitated by HailOps and such other services that HailOps may offer to Service Providers from time to time (collectively, the “Services”) including but not limited to uploading of customer data as it relates to hail damage done to customer’s vehicles.
5. The Company agrees that in order for any Fees to be owed to HailOps, LLC, any job/project/contract shall either have been completed or in an "agreement for work to be done" status with the vehicle owner, and the Company will comply with all requirements and agreements regarding invoicing, code of ethics, etc.
6. Notwithstanding the foregoing, the Company acknowledges and agrees that it will not access, reproduce, duplicate, copy, sell, re-sell, visit, or otherwise exploit the Website (or any of the content therein including, without limitation, any Consumer Content or any profiles of HailOps members) or Services for any commercial or other purpose without the express written consent of HailOps.
7. HailOps does not endorse and is not responsible or liable for any Consumer Content, Service Provider Content (“SP Content,” as defined below), data, advertising, products, goods or services available or unavailable from, or through, HailOps. The statements, information and ratings contained in any Consumer Content are solely the opinion of the Consumer submitting such Consumer Content and do not reflect the opinion of HailOps or any of its affiliates or subsidiaries or any of their respective owners, managers, officers, employees, agents, or representatives.
8. The Company acknowledges and understands that HailOps simply acts as a passive conduit and an interactive computer provider for the publication and distribution of Consumer Content and SP Content. HailOps does not have any duty or obligation to investigate the accuracy of Consumer Content or the quality of the work performed by the Company or any other Service Provider which is the subject of any Consumer Content. By using the Services, the Company agrees that it is solely the Company’s responsibility to evaluate the Company’s risks associated with the use, accuracy, usefulness, completeness, appropriateness, or legality of any information, responses, writings, or other materials that the Company submits, transmits, or otherwise conveys through the Services (collectively, “SP Content”).
9. Under no circumstances will HailOps be liable in any way for any Consumer Content or SP Content including, but not limited to, any Consumer Content or SP Content that contains, errors, omissions or defamatory statements, or for any loss or damage of any kind incurred as a result of the use of any Consumer Content or SP Content submitted, accessed, transmitted, or otherwise conveyed via the Services or otherwise.
10. The Company hereby waives any claims, rights, or actions that it may have against HailOps or any of its affiliates or subsidiaries with respect to any Consumer Content or SP Content and releases HailOps and each of its affiliates and subsidiaries from any and all liability for or relating to Consumer Content or SP Content.
11. The Company agrees to indemnify and hold HailOps and each of its affiliates and subsidiaries and their respective owners, managers, officers, employees, agents or representatives harmless for any damages that may arise, directly or indirectly, from any claim or right it may have against HailOps with respect to any statements made by a Consumer or Consumer Content submitted by a Consumer which is communicated, posted or published by HailOps on its Website or to a third party.
12. The Company acknowledges and agrees that the Company can neither require HailOps to place the Company on its Website nor remove the Company or any Consumer Content from its Website. The Company further acknowledges and understands that the Company is not a Consumer of HailOps, cannot refer to itself as a Consumer of HailOps, and is not afforded the same access to the Website as a Consumer nor the benefits afforded to a Consumer.
13. The Company and its current or former owners, current or former employees or officers, family members, or current or former partners, investors, managers, directors, or other agents (collectively, the “Affiliated Persons”) may not submit Consumer Content to HailOps on the Company. The Company hereby acknowledges and agrees that to the extent an Affiliated Person has submitted or posted any Consumer Content on the Company or any company or person competitive to the Company or believes that Consumer Content was posted by an Affiliated Person, HailOps may immediately remove such Consumer Content without notice or recourse against HailOps.
14. SP Content shall not contain any unauthorized content which includes but is not limited to:
a. Offensive, harmful, and/or abusive language including, without limitation: expletives, profanities, obscenities, harassment, vulgarities, sexually explicit language, and hate speech (e.g., racist/discriminatory speech.);
b. Comments that do not address the Consumer Content or comments with no qualitative value as determined by HailOps in its sole discretion;
c. Content that contains personal attacks or describes physical confrontations and/or sexual harassment;
d. Messages that are advertising or commercial in nature or are inappropriate based on the applicable subject matter;
e. Language that violates the standards of good taste or the standards of the Website, as determined by HailOps in its sole discretion;
f. Content determined by HailOps, in its sole discretion, to be illegal or to violate any federal, state, or local law or regulation or the rights of any other person or entity;
g. Language intended to impersonate other users (including names of other individuals) or to be offensive or inappropriate usernames or signatures; and/or
h. Content that is not in English, that is encrypted, or that contains viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, intercept, or appropriate any system, data, or personal information.
15. The Company acknowledges and agrees that HailOps in its sole discretion may remove without notice any SP Content or any portion thereof that HailOps believes violates the foregoing terms, policies, or standards.
16. HailOps, without notice, may suspend, restrict, or terminate the Company’s use of the Services or any portion thereof if the Company breaches or fails to comply with any of the Terms and Conditions of this Agreement.
17. Although HailOps does not claim ownership of any SP Content or other communications or materials submitted by or given by the Company to HailOps, by providing SP Content for the Website or other mediums, the Company automatically grants, and the Company represents and warrants that the Company has the right to grant, to HailOps an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify, and distribute such SP Consent and to prepare derivative works of, or incorporate into other works, such SP Content, and to grant and to authorize sublicenses (through multiple tiers) of the foregoing. In addition, by providing HailOps with SP Content, the Company automatically grants HailOps all rights necessary to prohibit the subsequent aggregation, display, copying, duplication, reproduction, or exploitation of SP Content on the Website or in any other medium by any other party. No compensation will be paid with respect to HailOps’s use of SP Content. HailOps is under no obligation to post or use any SP Content or maintain SP Content. HailOps may remove SP Content at any time in HailOps’s sole discretion.
18. It is the Company’s sole responsibility to review and monitor any Consumer Content regarding the Company that is posted by Consumers and to submit responses it deems necessary to any Consumer Content. HailOps does not have any obligation to provide a notice or update to the Company with respect to any new information or Consumer Content that it learns of or receives about the Company from its Consumers.
19. The Company has the sole responsibility of updating any and all of its information on the Website including, without limitation, the Company’s description and profile information.
20. The Company agrees not to use or cause any robot, bot, spider, other automatic device, or computer program routine or manual process to monitor, duplicate, take, obtain, transfer, modify, use, reproduce, aggregate, or copy HailOps, any Consumer Content, any Consumer profiles, SP Content (including SP profiles) or any other content contained on the Website or any other publication of HailOps. You shall not use or cause any device, software, or routine to interfere or attempt to interfere with the proper working of the Website.
21. The Company hereby represents and warrants to HailOps that (a) all information provided to HailOps by the Company is true, complete, and accurate in all respects, and (b) the Company is authorized to submit information to HailOps. HailOps is authorized by the Company to rely upon the truthfulness, completeness, and accuracy of SP Content in order to serve its Consumers.
22. The Company acknowledges that the Website uses one or more website analytic services which may record mouse clicks, mouse movements, scrolling activity, and text entered into the Website by users. These services do not collect personally identifiable information that is not voluntarily entered into the Website by the user. HailOps uses the information collected by these Service Providers to improve the usability and other features of the Website. Users may choose to disable these tracking services. HailOps will provide links to tracking services’ websites to facilitate opting out if a request is made to HailOps in writing and if it is reasonably within HailOps’s ability to facilitate such action.
23. The Company acknowledges that HailOps will use the telephone numbers, email addresses, and facsimile numbers that are submitted to HailOps in connection with registering with HailOps to contact the Company with information regarding HailOps. HailOps agrees not to sell, trade, rent, or share such information with any third parties. By providing a wireless phone number to HailOps, the Company agrees that HailOps may call or send text messages to the wireless phone number for any purpose, including marketing purposes, using all methods now known and discovered in the future including, but not limited to, auto-dialers, pre-recordings, and general telemarketing practices. The Company agrees that these calls or text messages may be regarding the products and/or services that the Company has previously purchased and products and/or services that HailOps may market to You. The Company acknowledges that this consent may be removed upon request.
24. To the extent a third party posts or submits any SP Content or manages the Company’s profile or information on the Website, the Company hereby acknowledges and agrees that the Company shall remain fully responsible for any SP Content or information posted or submitted by such third party.
25. The Company agrees, unless expressly authorized by HailOps, not to access, copy, duplicate, use, reproduce, alter, modify, create derivative works, display, sell, re-sell, advertise, or market with or otherwise exploit for any commercial, educational, or other purpose any Consumer Content, any Consumer profiles, any SP profiles, or any other content from the Website or HailOps including, without limitation, any reviews or ratings or any other content contained in any Consumer Content.
26. HailOps is the owner and/or authorized user of any trademark and/or service mark including, without limitation, the names “HailOps” and any abbreviations thereof appearing on the Website and is copyright owner or licensee of the content and/or information on the Website. By placing them on the Website, HailOps does not grant the Company any license or other authorization to copy or use its trademarks, service marks, copyrighted material, or other intellectual property, except as provided herein.
27. HailOps reserves the right to exercise any rights or remedies which may be available to it against the Company if the Terms and Conditions of this Agreement are violated by the Company. These remedies include, but are not limited to, revocation of (a) any service awards previously awarded and any associated license therewith, (b) advertising privileges, (c) use of the Services, or (d) appearances on the Website and/or any other appearances in any HailOps publication, and the Company agrees that the exercise of one remedy shall not preclude the availability of any other remedy.
28. The Company understands and agrees that because damages resulting from the Company’s breach of this Agreement are difficult to calculate, if it becomes necessary for HailOps to pursue legal action to enforce the Terms and Conditions of this Agreement, the Company will be liable to pay HailOps the following amounts as liquidated damages, which the Company accepts as reasonable estimates of HailOps’s damages for the specified breaches of this Agreement:
a. If the Company posts SP Content in violation of this Agreement, the Company agrees to promptly pay HailOps one thousand dollars ($1,000) for each item of SP Content posted in violation of this Agreement. HailOps may (but is not required to) issue the Company a warning before assessing damages.
b. If the Company exploits for any purpose (commercial or otherwise) any Consumer Content, profiles of HailOps members, or any other information contained on the Website including, without limitation, ratings and/or reviews in violation of this Agreement, the Company agrees to pay five thousand Dollars ($5,000) per report, record or review exploited.
c. If the Company exploits the website by using a referral and by deceit or any other means, avoids or attempts to avoid payment of the “success fee” to HailOps, the Company agrees to pay seven thousand five hundred dollars ($7,500) per incident.
d. If the Company uses or causes any robot, bot, spider, other automatic device or computer program routine, or any manual process to monitor, duplicate, take, aggregate, obtain, modify, use, reproduce, or copy any Consumer Content, any profiles of HailOps members, SP content (including SP profiles) or any other content contained on the Website or in any other publication of HailOps, the Company agrees to pay one hundred dollars ($100) for each report, record, review, or other information that is monitored, duplicated, transferred, taken, obstructed, modified, used, reproduced, aggregated, or copied.
e. Except as set forth in the foregoing subparagraphs (a) through (d), inclusive, the Company agrees to pay the actual damages suffered by HailOps to the extent such actual damages can be reasonably calculated.
29. Notwithstanding any other provision of this Agreement, the Company reserves the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term, or in aid of the exercise of any power granted in this Agreement, or any combination thereof.
30. THE COMPANY EXPRESSLY UNDERSTANDS AND AGREES THAT HAILOPS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF HAILOPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (COLLECTIVELY, “DAMAGES”) RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICES; (B) THE COST OF ANY GOODS AND/OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE SERVICES; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF YOUR INFORMATION OR SP CONTENT; (D) SP CONTENT THE COMPANY MAY SUBMIT, RECEIVE, ACCESS, TRANSMIT, OR OTHERWISE CONVEY THROUGH THE SERVICES OR THIS AGREEMENT; (E) STATEMENTS OR CONDUCT OF ANY CONSUMER OR OTHER THIRD PARTY THROUGH THE SERVICES; (F) ANY OTHER MATTER RELATING TO THE SERVICES; (G) ANY BREACH OF THIS AGREEMENT BY HAILOPS OR THE FAILURE OF HAILOPS TO PROVIDE THE SERVICES UNDER THIS AGREEMENT; (H) ANY CONSUMER CONTENT POSTED; OR (I) ANY OTHER DEALINGS OR INTERACTIONS THE COMPANY HAS WITH ANY SERVICE PROVIDER (OR ANY OF THEIR REPRESENTATIVES OR AGENTS). THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN SOME JURISDICTIONS, LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO THE COMPANY.
31. TO THE EXTENT HAILOPS IS FOUND LIABLE FOR ANYTHING RELATED TO THIS AGREEMENT OR THE USE OF THE SERVICES, HAILOPS’S LIABILITY FOR DAMAGES WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
32. This Agreement and the relationship between the Company and HailOps will be governed by the internal laws of the State of Colorado, notwithstanding the choice of law provisions or conflict of law analysis of the venue where any action is brought, where the violation occurred, where the Company may be located, or any other jurisdiction. The Company agrees and consents to the exclusive jurisdiction of the state or federal courts located in the City and County of Denver, Colorado and waives any defense of lack of personal jurisdiction or improper venue or forum non convenience to a claim brought in such court, except that HailOps may elect, in its sole discretion, to litigate the action in the county or state where any breach by the Company occurred or where the Company can be found. The Company agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Your use of the Service or this Agreement shall be filed within two (2) year after such claim or cause of action arose or will forever be barred.
33. In the event this Agreement is terminated, certain provisions of this Agreement will continue to remain in effect including, but not limited to, Section 3 through 13, and Sections 21 through 38, inclusive.
34. The Company agrees to indemnify and hold harmless HailOps and each of its affiliates and subsidiaries and each of their respective owners, officers, agents, managers, partners, employees, and representatives from any loss, liability, claim, or demand, including reasonable attorneys’ fees (whether incurred in enforcing this Agreement or otherwise), made by any third party due to or arising out of the Company’s use of HailOps.
35. HailOps may modify or restate the Terms and Conditions of this Agreement and such modification(s) will be effective immediately upon being posted on the Website. HailOps will make note of the date of the last update to the Agreement on the first page of this Agreement. The Company is responsible for reviewing these terms and conditions regularly. The Company’s continued use of the Services after such modifications will be deemed to be the Company’s conclusive acceptance of all modifications to this Agreement.
36. The Company agrees that HailOps shall be entitled to payment from the Company for any and all out-of-pocket costs including, without limitation, attorneys’ fees, court, litigation and deposition costs incurred by HailOps in connection with enforcing these Terms and Conditions and this Agreement or otherwise.
37. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. HailOps is not responsible for any delays, failures, or other damage resulting from such problems
38. This Agreement may not be re-sold or assigned by the Company. If the Company assigns or tries to assign this Agreement, such assignment or attempted assignment will be void and unenforceable. It will not be considered a waiver of HailOps’s rights if HailOps fails to enforce any of the Terms and Conditions of this Agreement against the Company. If a provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, that shall not affect: (a) the validity or enforceability in that jurisdiction of any other provision of this Agreement; or (b) the validity or enforceability in other jurisdictions of that or any other provision of this Agreement. No joint venture, partnership, employment, or agency relationship exists between the Company and HailOps as a result of this Agreement or use of the Services.
39. The person agreeing to this Agreement and the Terms and Conditions on behalf of the Company hereby represents and warrants that he/she has the power and authority to bind the Company and that this Agreement and the Terms and Conditions constitute a valid and binding agreement of the Company.
40. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.