November 6, 2023
November 6, 2023
CostCertified Inc. Terms and Conditions
Welcome to CostCertified.com, a website of CostCertified Inc.and its subsidiary, CostCertified (USA), Inc. (“CostCertified,” “we,” or “us”).
This page explains the terms that govern your access to and use of our website, our construction industry Software as a Service platform and other services we make available to you on our website, our mobile application (“App”), or through other means (collectively the “Services”).
By using this website or by purchasing a subscription and/or by opening an account with us (the “Account”) , you signify that you have read, understood, and agree to:
Certain CostCertified Services may also require that you agree to supplemental terms and/or policies applicable to the specific service, including a master services agreement (“Supplemental Terms”). Any such Supplemental Terms will be presented to you for your review and consent when you sign up to use the specific CostCertified Services to which the Supplemental Terms apply. The Supplemental Terms shall control over these Terms in the event of a conflict between the two. You agree that your use of a Service governed by Supplemental Terms constitutes your agreement to be bound by those Supplemental Terms, and that these Terms and all applicable Supplemental Terms constitute the Terms applicable to you.
CostCertified reserves the right to make unilateral modifications to these Terms and our policies and will provide notice of these changes by posting an updated version to our website. If you do not accept all applicable terms and policies and the procedures for modifying those terms and policies, do not open an Account and do not use any Services offered by CostCertified. Use of any such Services will be deemed to be acceptance of all applicable terms and policies.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Use of the Services
This is a contract between you, the applying business entity and CostCertified. You must read and agree to these Terms before using the Services. If you do not agree, you may not open an Account or use the Services.
Only lawfully formed business entities or individuals wishing to hire them are eligible to use CostCertified Services. Individuals, consumers, or any non-commercial entities are not eligible to use CostCertified Services other than for informational purposes. You may only apply for an Account or use the Services if you are a legal entity formed and registered in or legal resident of the United States or Canada or and can form a binding contract with CostCertified, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use of or access to the Services for consumer or non-commercial purposes other than for informational purposes, by anyone under 18, or by any individual who is not your employee, contractor, agent, or other individual permitted to use your Account on your behalf (“User”) is strictly prohibited and in violation of these Terms.
B. CostCertified’s Services
CostCertified offers a construction industry Software as a Service platform and a broad range of financial services including, but not limited to, a services marketplace, escrow services and payment facilitation. Such Services may be subject to Supplemental Terms as set forth above. CostCertified will make some or all of the Services available to Users pursuant to these Terms and the applicable Order Forms. Services that are subject to Fees may be subscribed for by Users through the submission of an Order to CostCertified, which Order shall become binding on acceptance by CostCertified (each a "Subscription"). For Subscriptions, Cost Certified will (a) use commercially reasonable efforts to make such Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which CostCertified shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond CostCertified ’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving CostCertified employees), Internet service provider failure or delay, Third Party Application, or denial of service attack, and (b) provide the Services in accordance with laws and government regulations applicable to CostCertified ’s provision of its Services to its customers generally (i.e., without regard for Your particular use of the Services), and subject to Your use of the Services in accordance with these Terms, the Documentation and the applicable Order Form.
C. Opening an Account.
We provide Applicant Information to our third-party service providers to determine your eligibility for the Services. We rely on the accuracy of the Applicant Information you provide us when opening and maintaining your Account. For those Services requiring certain Applicant Information, we may deny your application, suspend provision of the Services to you, or close your Account if Applicant Information is out of date, incomplete, or inaccurate.
D. Account Management and Security.
You must specify at least one administrator (“Administrator”) to manage your Account when submitting your Application. Administrators can add, remove, or manage additional Administrators and Users; view transactions and run reports; provide or update company information; connect third-party services and other accounts to your Account; and perform other tasks to manage your Account. You are responsible for any actions or failure to act on the part of Administrators or Users, or those using their credentials to access your Account. You are solely responsible for the activity that occurs on your Account, and you must keep your Account password secure. We encourage you to use “strong” passwords with your Account. You must notify CostCertified immediately of any breach of security or unauthorized use of your Account. CostCertified will not be liable for any losses caused by any unauthorized use of your Account. We may suspend access to your Account if we believe that your Account has been compromised.
E. Profile Page and Rating and Review Feature.
CostCertified collects feedback and ratings from Users (including developers, builders, contractors and subcontractors) about their experience working with other Users. CostCertified uses this feedback to provide other Users with information on other Users. CostCertified publishes feedback and comments about Users on the Services so that Users can review and evaluate the experiences of other Users. If you have any concerns about the feedback that is published about you, please contact us at firstname.lastname@example.org.
F. Third-Party Services
CostCertified, as part of the Services it provides, may recommend or provide website links to third-party materials including offers of services or products that are not owned or controlled by CostCertified. Should you choose to purchase such third-party services or products, the third-party provider may require you to enter into separate agreements regarding those services or products.
G. Third-Party Software Providers
To the extent you choose to connect or interact with a third-party software product, you grant us authorization to access your third-party software product account in accordance with the rules for doing so prescribed by the third-party software product provider for the purpose of providing the Services to you, and to collect and use your data held by the third party.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Law” means all applicable state, federal, provincial and local laws, rules and regulations, including without limitation, the Bank Secrecy Act, the implementing regulations issued by the U.S. Treasury’s Office of Foreign Assets Control (OFAC) and the Federal Trade Commission, as well as any and all other federal and state anti-money laundering laws and regulations.
"Contractor" means a construction service provider who contracts directly with Purchasers.
"Documentation" means the applicable Service’s documentation and its usage guides and policies, as updated from time to time, accessible via CostCertified.com or our App.
"Fees" means the fees payable for any Services that are provided subject to payment of applicable fees.
"Marketplace" or "Marketplace Service" means the marketplace component of the Service where Users may enter into agreements directly with each other, as facilitated by the Service.
“Network Rules” are the rules, regulations, releases, interpretations and other requirements (whether
contractual or otherwise) imposed or adopted by any Network.
“Onboarding Fee” means the one-time, non-refundable, fee to open an account for Subscription Services (as applicable).
"Order" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and CostCertified including any addenda and supplements thereto.
"Purchaser" means an individual who contracts, or is seeking to contract, with a Contractor for receipt of construction services
"Services" means the products and services of CostCertified which are made available by us on our construction industry software as a service platform (the “Platform”) via the CostCertified.com website, that are used by a User, whether through simply accessing the Platform or as subscribed for through an Order.
"Subcontractor" means a construction service provider who is, or who may be, subcontracted by a Contractor.
“Subscription” means the fee-based access to the Services purchased by User as set forth in these Terms.
“Subscription Fee” means the fee(s) for the User’s subscription to the Services as forth in the Terms.
“Subscription Term” means the subscription period identified in these Terms.
"Supplier" means a supplier of physical goods to Contractors and Subcontractors.
“Terms” means the CostCertified Terms of Service.
"Third Party Application" means a Web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by You or a third party, including without limitation Salesforce.com.
"User" means in the case of an individual accepting these Terms on behalf of a company or other legal entity, or in the case of an individual who is authorized by You to use a Service, for whom You have purchased a Subscription (or in the case of any Services provided by CostCertified without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, CostCertified at Your request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of You, and third parties with which You transact business.
"Your Data" means electronic data and information submitted by or for You to the Services.
A. Subscription Fees.
Access to the CostCertified Platform is provided on a Software-as-a-Service basis and requires all Users to have a valid Subscription and account access. We may charge Users a Fee to access and use part of the Services that are subject to paid Subscriptions where subscribed for in accordance with Section 3, and account access. User’s Subscription Fees and other fees, as applicable, are set forth in the Documentation and Order provided to User by CostCertified. All fees, including Subscription Fees, are subject to change upon notice. User shall pay all fees, including Subscription Fees, when due and is responsible for providing complete and accurate billing information to CostCertified. User authorizes CostCertified and its payment processor(s) to charge fees using any of User’s available payment methods on file with User’s account.
Subscription Services are sold as an annual subscription (auto-renewable) beginning on the effective date of the Order, with two available payment options:
USER AGREES THAT ITS SUBSCRIPTION WILL AUTOMATICALLY RENEW AFTER THE INITIAL SUBSCRIPTION TERM ENDS (THE “RENEWAL DATE”) AND ANNUALLY THEREAFTER, AT THE THEN-CURRENT SUBSCRIPTION FEE AND SELECTED PAYMENT PLAN, UNLESS CANCELED BY THE USER PRIOR TO THE RENEWAL DATE. COSTCERTIFIED WILL NOTIFY USER IN WRITING BY EMAIL, AND/OR AS AVAILABLE, BY THE TELEPHONE CONTACT INFORMATION ASSOCIATED WITH THE USER’S COSTCERTIFIED ACCOUNT, BETWEEN 15-45 DAYS PRIOR TO THE EXPIRATION OF THE SUBSCRIPTION TERM. THE SUBSCRIPTION WILL AUTOMATICALLY RENEW UNDER THE USER’S THEN-CURRENT PAYMENT PLAN OPTION UNLESS USER UPDATES THE SELECTED PAYMENT PLAN OPTION (UPFRONT PREPAID OR MONTHLY PAYMENT FOR THE ANNUAL RENEWAL TERM) PRIOR TO THE RENEWAL DATE. USER AUTHORIZES COSTCERTIFIED AND ITS PAYMENT PROCESSOR(S) TO AUTOMATICALLY CHARGE USER FOR THE APPLICABLE SUBSCRIPTION FEES, ON OR AFTER THE RENEWAL DATE UNLESS THE SUBSCRIPTION HAS BEEN CANCELED OR TERMINATED IN ACCORDANCE WITH THESE TERMS.
USER MUST CANCEL ITS SUBSCRIPTION PRIOR TO THE RENEWAL DATE TO AVOID BEING CHARGED THE SUBSCRIPTION FEE UNDER THE APPLICABLE PAYMENT PLAN. IF USER ATTEMPTS TO CANCEL ITS SUBSCRIPTION DURING THE SUBSCRIPTION TERM, USER WILL NOT BE ISSUED A REFUND FOR THE MOST RECENT SUBSCRIPTION FEES OR ANY PREVIOUSLY CHARGED FEES AND THE SUBSCRIPTION WILL TERMINATE ON THE NEXT APPLICABLE RENEWAL DATE. TO CANCEL, USER MUST SELECT TO CANCEL THEIR SUBSCRIPTION VIA THE USER’S ACCOUNT PRIOR TO THE RENEWAL DATE. CostCertified does not provide refunds for any type of cancellation.
D. Additional one-time or Add-on Fees.
Users may purchase one-time Services or add-on additional Services either separately to or as part of their Subscription. Such additional fees will either be indicated at the time of incurrence or, in respect of Subscriptions, will be as set forth in the applicable Order. Without limiting the foregoing, CostCertified may also automatically charge Users add-ons or one-time service fees as Users exceed their subscription limits for Subscriptions. The fees for one-time Services or add-ons Services will be determined at the time of purchase of such Services.
Any upgrade to the original Subscription will result in a new subscription fee, prorated based on the date the Subscription was upgraded. CostCertified may automatically upgrade User Subscriptions based on usage of Services to prevent disruption of Services to the User. CostCertified will provide notice at least 5 days prior to changing the Subscription.
Any downgrade will result in a new Subscription Fee charged during the next billing cycle. There is no prorating for downgrades during the term of the Subscription.
G. Fees for Escrow and Payment Services.
CostCertified charges transaction fees for use of certain escrow and payment services. Fees are set out in the ordering document at the time you register for such services ("Transaction Fees"). The Transaction Fees will be calculated as a percentage of the gross total value of the transaction, which will be quoted to User on the CostCertified Platform at the time of the transaction. CostCertified reserves the right to change any fees at our sole discretion by providing 30 days’ notice.
H. Payment Method.
The Subscription Fees may be subject to applicable sales taxes which will be determined by CostCertified and added to the respective fees. CostCertified reserves the right to deduct the Fees and any applicable taxes from the User's account.
J. Contractor Taxes.
Each contractor or subcontractor, as applicable, hereby agrees and acknowledges that it is exclusively responsible for determining the amount of all applicable taxes to be charged on all job fees and is exclusively responsible for posting such fees, inclusive of all applicable taxes and any required tax identification numbers, on the invoices generated by the CostCertified Platform. For greater certainty, Users hereby agree and acknowledge that CostCertified is not responsible for calculating, reporting, remitting and withholding any applicable federal, state, provincial, goods, services, value-added, municipal or other taxes associated with User’s job fees. Each User hereby represents and warrants that all tax information it provides in connection with its use of the CostCertified Platform is accurate. Notwithstanding the foregoing, each User remains solely responsible for ensuring all applicable taxes are properly calculated.
K. Purchaser Taxes.
CostCertified is not responsible for calculating, reporting, remitting and withholding any applicable federal, state, provincial, goods, services, value-added, municipal or other taxes associated with a Purchaser’s engagement of a contractor or sub-contractor, as applicable.
CostCertified does not offer refunds.
4. Our Proprietary Rights
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as permitted by the features of the Services. CostCertified reserves all rights not expressly granted herein in the Services and the CostCertified IP (as defined below). CostCertified may terminate this license at any time for any reason or no reason. The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and user content belonging to other Users (the “CostCertified IP”), and all intellectual property rights related thereto, are the exclusive property of CostCertified and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any CostCertified IP. Use of the CostCertified IP for any purpose not expressly permitted by the Terms is strictly prohibited.
You may choose to, or we may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products. By submitting any such comments or ideas, you agree that your disclosure is gratuitous, unsolicited and without restriction, and will not place CostCertified under any fiduciary or other obligation, and that we are free to use the comments or ideas without any additional compensation to you, or to disclose the comments or ideas on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, CostCertified does not waive any rights to use similar or related ideas previously known to CostCertified, or developed by its employees, or obtained from sources other than you.
5. Prohibited Activities
You may not use any CostCertified Service for activities that:
You may not:
6. Services Data and Privacy
CostCertified uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your company information and to implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your company information for improper purposes. You acknowledge that you provide your company information at your own risk. Upon request by You made within 30 days after the effective date of termination or expiration of these Terms, CostCertified will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, CostCertified will have no obligation to maintain or provide any of Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in its systems or otherwise in its possession or control, unless legally prohibited.
7. Electronic Communications
A. "Communication" means any customer agreements or amendments thereto, disclosures, notices, responses to claims, transaction histories, privacy policies, payment authorizations and receipts, and all other information we communicate to you in connection with the Services or related products, including but not limited to information that we are required by law to provide you in writing.
B. In connection with the Services, we are required by law to provide you with certain Communications in writing. Without your consent, we are not permitted to provide those Communications to you electronically. The Services are intended for use only by persons who are willing and able to receive Communications electronically, exclusively through the Website, the CostCertified mobile Application (“App”), push notification, SMS message, or via electronic mail ("Email"). If you do not agree to receive the Communications described herein in electronic, and not paper form, you may not open an Account or receive Services. Similarly, if after providing your consent hereunder, you withdraw such consent, your Account will be closed and you will not be permitted to use any Services.
C. Scope of Communications to Be Provided in Electronic Form. When you use the Services, you agree that we may provide you with any Communications in electronic format, to the extent allowed by law, and that we may discontinue sending paper Communications to you. Your consent to receive electronic Communications and transactions includes, but is not limited to:
- All legal and regulatory disclosures and communications associated with your Account, including e-statements, account histories, or other periodic statements;
- Change-in-terms related to your Account;
- Privacy policies and notices;
- Responses to claims ﬁled in connection with your Account;
- Payment authorizations, confirmations, and receipts;
- All other Communications between us and you concerning your Account and any related transactions, products or services.
D. Method of Providing Communications to You in Electronic Form. Communications that we provide to you in electronic form will be provided either (1) via Email; (2) via the App; (3) by access to a web page that is designated in an Email notice sent to you at the time the information is available; or (4) via SMS message and push notification. You will not receive a notiﬁcation when your statement is available to be viewed. You are responsible for retrieving the statements from the Website or the App.
E. How to Withdraw Consent. You may exercise your right to withdraw your consent to receive Communications in electronic form at any time by writing to us at: 685 Center Street South, Suite 1900, Calgary, Alberta T2G2C7. Any withdrawal of your consent will be effective after a reasonable period of time for processing your request. If you withdraw your consent we may close your Account or limit your access to your Account and the Services. You agree to repay any amounts you owe us on your Account. If you withdraw your consent, the legal validity and enforceability of prior Communications delivered in electronic form will not be affected.
F. How to Update Your Records. It is your responsibility to provide us with a true, accurate and complete Email address, contact, and other information related to these Terms and your Account, and to maintain and update promptly any changes in this information. You can update information (such as your Email address) by Emailing email@example.com. We are not responsible for any delay or failure in your receipt of the Communications that is not caused by our failure to send such Communication to the contact information you provided to us. We will not assume liability for any delay or failure in your receipt of Communications in the event that your mobile phone number, Email address or other information we have on file for you is invalid; your Email service provider, mobile carrier, or Internet service provider filters the notification as “spam” or “junk mail”; there is a malfunction in your computer, mobile device, browser, Internet service, mobile connectivity or software; or for other reasons beyond our reasonable control.
G. Hardware and Software Requirements. In order to access, view, and retain electronic Communications that we make available to you, you must have:
- A working mobile telephone number that can receive SMS messages;
- Sufficient storage space on your mobile device or personal computer to save Communications we send, and/or the ability to print the Communications from the device or computer on which you view them;
- Access to an active Email account with an Email service provider, and if you use a spam filter that blocks or re-routes Emails from senders not listed in your address book, you must permit messages from the CostCertified.com domain in your spam filter;
- Access to the internet or mobile connectivity; AND
- A current version of a program that accurately reads and displays PDF files (e.g., Adobe Acrobat Reader).
We may update these requirements as necessary to preserve the ability to receive electronic Communications. We will notify you if our hardware or software requirements change and whether that change creates a material risk that you would not be able to access or retain your electronic Communications. Continuing to use the Services after receiving notice of the change is the reaffirmation of your consent.
H. Requesting Paper Copies. We may, but assume no obligation, to provide a paper (instead of electronic) copy of any Communication that you have authorized us to provide electronically. You can obtain a paper copy of an electronic Communication by printing it yourself or by requesting that we mail you a paper copy. To request a paper copy, contact us at firstname.lastname@example.org during normal business hours. We may charge you a reasonable service charge for the delivery of paper copies of any Communication provided to you electronically pursuant to this authorization.
I. Communications in Writing. All Communications in either electronic or paper format from us to you will be considered "in writing". You should print or download for your records a copy of these Terms and any other Communication that is important to you.
J. U.S. Federal Law. You acknowledge and agree that your consent to electronic Communications is being provided in connection with a transaction affecting interstate commerce that is subject to the United States federal Electronic Signatures in Global and National Commerce Act (the "Act"), and that you and we both intend that the Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means.
K. Termination/Changes. We reserve the right, at our sole discretion, to discontinue the provision of your electronic Communications, or to terminate or change the terms and conditions on which we provide electronic Communications. We will provide you with notice of any such termination or change as required by law.
L. Consent. By opening an Account, you give your afﬁrmative consent to our provision of electronic Communications to you as described herein. You understand and agree that your electronic signature or acceptance has the same force and effect as a signature given in ink. You further agree that your mobile device or other device you will use to receive, view, store, and/or print Communications satisﬁes the hardware and software requirements speciﬁed above and that you have provided us with a current Email address and mobile telephone number at which we may send electronic Communications to you. If you do not provide your consent and agreement, you may not use the Services and must discontinue your use of the Services immediately.
You agree to defend, indemnify and hold harmless CostCertified and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, and our third-party service providers, from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising out of, related to, or resulting from: (a) your use of and access to the Services, including any data or content transmitted or received by you; (b) your violation of any term of these Terms; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) your intentional misconduct; or (f) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
9. No Warranty
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COSTCERTIFIED OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COSTCERTIFIED, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE INFORMATION PROVIDED TO YOUR THROUGH THE SERVICES IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
COSTCERTIFIED DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COSTCERTIFIED WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COSTCERTIFIED, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL COSTCERTIFIED BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COSTCERTIFIED ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COSTCERTIFIED, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF THE TOTAL FEES PAID TO COSTCERTIFIED IN THE THREE CALENDAR MONTHS PRIOR TO THE DATE THE CLAIM AROSE OR US$100.00 or CAD$100.00 AS APPLICABLE. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER BARRED. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COSTCERTIFIED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
11. Term and Termination
The Terms are effective when you begin using CostCertified’s website and/or Services and continues until terminated by either you or us, or in accordance with any Supplemental Terms or as otherwise set forth in these Terms. You may terminate these Terms at any time, provided that your Account is in "good standing". An Account will be considered to be in good standing if: (a) there are no active projects; (b) there are no active outstanding payments owed to other Users; and (c) there are no outstanding fees owed to CostCertified. Notwithstanding any termination by you, you will still be responsible for any charges, fees, fines, and other losses caused by your action or inaction prior to terminating these Terms. We may terminate these Terms or suspend your Account at any time by providing you notice. Any such termination or suspension shall be made by CostCertified in its sole discretion, and CostCertified will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your Account and/or access to the Services.
12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
A. Governing Law.
For Customers based in the United States only: You agree that: (i) the Services covered by these Terms shall be deemed provided by Cost Certified (USA), Inc., a Delaware corporation, and such Services shall be deemed provided solely based in the State of Texas; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than the State of Texas. These Terms shall be governed by the internal substantive laws of the State of Texas , without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). You agree to submit to the personal jurisdiction of the federal and state courts located in Dallas County, Texas for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights or confidential information, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. Subject to Section 12B, you agree that the federal or state court located in Dallas County, Texas is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration provision below is found to be unenforceable.
For Customers based in Canada only: You agree that the Services covered by these Terms shall be deemed provided by Cost Certified, Inc, a Canadian corporation, and shall be deemed provided solely based in the Province of Alberta. These Terms shall be governed by the laws in effect in the Province of Alberta, Canada. No choice of laws or rules of any jurisdiction shall apply to these Terms . The courts of the Province of Alberta located in Calgary shall have jurisdiction over any legal action or proceeding arising out of or relating to these Terms, the CostCertified website or the Services and you consent to the jurisdiction of such courts for any such action or proceeding. You waive all rights that you may have or that may hereafter arise to contest such jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms is expressly excluded.
For Customers based in the United States only: READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COSTCERTIFIED. For any dispute with CostCertified, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that CostCertified has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims arising from protection of our intellectual property rights or breach of confidentiality requirements, which will be resolved through litigation in accordance with Section 9A as applicable to customers in the United States, or for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS. Claims with amounts claimed greater than US$250,000 will apply the JAMS Comprehensive Arbitration Rules and Procedures; and Disputes with amounts claimed less than or equal to US$250,000 will apply the JAMS Streamlined Arbitration Rules. The arbitration will be conducted in Dallas, Texas unless you and CostCertified agree otherwise. If JAMS cannot administer the Claim, either party may petition the US District Court for the Northern District of Texas to appoint an arbitrator. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Either party may commence arbitration by providing a written demand for arbitration to JAMS and the other party detailing the subject of the Claim and the relief requested. Each party will continue to perform its obligations under these Terms unless that obligation or the amount (to the extent in dispute) is itself the subject of the Claim. Nothing in this Section shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights or confidentiality obligations. Proceedings and information related to them will be maintained as confidential, including the nature and details of the Claim, evidence produced, testimony given, and the outcome of the Claim, unless such information was already in the public domain or was independently obtained. You and CostCertified, and all witnesses, advisors, and arbitrators will only share such information as necessary to prepare for or conduct arbitration or other legal proceeding, or enforcement of the outcome, unless additional disclosure is required by law.
C. Class Action/Jury Trial Waiver
With respect to all persons and entities, regardless of whether they have obtained an Account or used the Services for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into these Terms , you and CostCertified are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by CostCertified without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
B. Notification Procedures and Changes to the Terms
You consent to us providing notices to you under these Terms electronically and understand that this consent has the same legal effect as a physical signature. We will provide notices to you electronically through your Account, and via text or SMS to the phone numbers provided to us by Administrators and Users. If you sign up to receive certain CostCertified notifications or information via text or SMS, you may incur additional charges from your wireless provider for these notices. You agree that you are solely responsible for any such charges.
Notices affecting these Terms will be sent by email to Administrators and posted on our website and are considered received 24 hours after they are sent and/or posted. You understand that you may not use the Services unless you consent to receive notices from us electronically. You may only withdraw consent to receive notices electronically by closing your Account and ceasing to use the Services. Notices may include alerts about the Services and your Account and may provide Administrators and Users the ability to respond with information about transactions or your Account. Administrators and Users may disable notification preferences to limit the use of certain Service features. Administrators and Users are required to maintain a regularly updated web browser, and computer and mobile device operating systems to receive notices correctly. Administrators and Users will be responsible for all costs imposed by internet or mobile service providers for sending or receiving notices electronically. Contact us immediately at firstname.lastname@example.org if you are having trouble receiving notices from us.
C. Entire Agreement Terms/Severability
These Terms together with the other agreements set out in the introduction to these Terms and any amendments thereto and any Supplemental Terms you may enter into with CostCertified in connection with the Services, shall constitute the entire agreement between you and CostCertified concerning your Account and the Services. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement if applicable shall be unenforceable.
D. No Waiver
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and CostCertified’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
E. Legal Orders
We may respond to and comply with any subpoenas, warrants, liens, or any other legal order we receive related to your use of the Services. We are not responsible to you for any losses you incur due to our response to such legal order. We may hold funds or provide information as required by the issuer of the legal order or take any other actions we believe are required of us under legal orders. Where permitted, we will provide you reasonable notice that we have received such an order.
F. Continuing Obligations
All other provisions of these Terms giving rise to continued obligations of the parties will continue in effect after termination of these Terms.
G. Force Majeure
We shall not be liable for delays, failure in performance or interruption of Services which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to, significant market volatility, act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, pandemic, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
H. English Language
It is the express wish of the parties that these Terms and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.