This is an agreement between you and Empire Southwest, LLC (
Empire Southwest or
we) regarding your use of the ES Equipment application available through its website and on your mobile device (the
Agreement). If you download and/or use the Services, you agree to be bound by the Agreement. If you do not agree to these terms, please uninstall and delete the Services from your mobile device or computer and cease use of the Services. Empire Southwest may change these terms at any time and may modify, add or discontinue the Services in their entirety or any feature of the Services in its sole discretion. Your continued use of the Services following posting of any changes to the terms of the Agreement constitutes your acceptance of the changes.
1. THE SERVICES
The Services allow you to manage your equipment by Job Site Toolbox. Upon making the required payment, if any, we grant you a non-exclusive, non-transferable right to use the Services, subject to the terms of this Agreement. The Services contain material and content provided and owned by Empire Southwest or other sources. You must comply with all applicable copyright and other laws in your use of the Services. Except as specifically permitted, you may not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, license or otherwise transfer or use the Services for any purpose except for your personal, non-commercial use. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; or (iii) link to, mirror, frame, scrape or use any automatic device to access, monitor, copy, store information, search or extract data from any portion of the Services. You are not authorized to use the Services in any jurisdiction where the terms of this Agreement are not enforceable.
You agree not to upload, post or email any content or information that (a) is confidential, (b) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening, (c) contains viruses or other contaminating or destructive features, (d) violates the rights of others, such as content that infringes any copyright, trademark, patent, trade secret or violates any right of privacy or publicity, (e) offends the community standards of users of the Services, (f) interferes with or disrupts the Services, (g) harass another user or (h) otherwise violates any applicable law.
We may, in our sole discretion, refuse to offer the Services to any person or entity. We may, without notice and in our sole discretion, terminate your right to use the Services, or any portion of thereof, and block or prevent your future access to and use of the Services or any portion thereof.
3. YOUR ACCOUNT
By using the Services on your mobile device, you understand that message and data rates may apply and are billed by and payable to your mobile carrier. You consent to receiving text messages from time to time related to your account and use of the Services. Empire Southwest will not be liable for any delays in transmission of or inability to send or receive text messages.
4. SUBMISSION OF CONTENT
Empire Southwest requests that you do not submit any idea or suggestion to Empire Southwest that you consider confidential or proprietary. All ideas or suggestions submitted or disclosed will be deemed not confidential and will become the exclusive property of Empire Southwest. You irrevocably transfer and assign to Empire Southwest all rights, known or unknown, in and to the ideas or suggestions and Empire Southwest may use any idea or suggestion without restriction for any purpose without compensation to you.
5. CHILDREN'S ONLINE PRIVACY PROTECTION ACT NOTIFICATION.
6. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
EMPIRE SOUTHWEST PROVIDES THE SERVICES
AS AVAILABLE. EMPIRE SOUTHWEST AND ANY THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, EMPIRE SOUTHWEST DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED WITHOUT INTERRUPTION, BE FREE FROM ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
UNDER NO CIRCUMSTANCES SHALL EMPIRE SOUTHWEST OR ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHERWISE, OR WHETHER RESULTING FROM TORT, CONTRACT OR OTHER THEORIES OF LAW) INCLUDING BUT NOT LIMITED TO ATTORNEYS' FEES AND LOST PROFITS, IN CONNECTION WITH, OR IN ANYWAY ARISING OUT OF, (1) THE USE OR INABILITY TO USE THE SERVICES AND ITS CONTENT; (2) ANY GOODS OR SERVICES OBTAINED THROUGH THIRD PARTIES REFERENCED OR MADE AVAILABLE ON OR THROUGH THE SERVICES; (3) ANY ERRORS OR OMISSIONS IN THE CONTENT OR INFORMATION IN THE SERVICES; OR (4) ANY COMPUTER VIRUS OR OTHER PROGRAMMING DEVICE, EVEN IF EMPIRE SOUTHWEST IS ADVISED OF THE POSSIBILITY THEREOF.
IF YOU BECOME DISSATISFIED WITH THE SERVICES, OR THE TERMS, CONDITIONS OR POLICIES GOVERNING USE OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. THIS LIMITATION ON DAMAGES IS ESSENTIAL TO THE AGREEMENT BETWEEN YOU AND EMPIRE SOUTHWEST AND THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO PORTIONS OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF EMPIRE SOUTHWEST, ITS AFFILIATES, AGENTS AND LICENSORS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EMPIRE SOUTHWEST OR ITS AFFILIATES, AGENTS OR LICENSORS EXCEED $100. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES WOULD NOT BE PROVIDED WITHOUT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS AGREEMENT AND THAT THE DISCLAIMERS AND LIMITATION AND REMEDIES ARE REASONABLE.
You agree to indemnify, defend (if requested by Empire Southwest), and hold Empire Southwest, its affiliates and any employees, officers, or agents harmless from and against any and all claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) your content or your access to or use of the Services; (ii) your breach or alleged breach of this Agreement; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, ordinances or governmental authorities; or (v) any misrepresentation made by you. You agree to cooperate as required by Empire Southwest in the defense of any claim. Empire Southwest reserves the right to assume control of the defense of any claim subject to your indemnification. You agree that you will not settle any claim subject to indemnification without the prior written consent of Empire Southwest, regardless of the form of action.
This Agreement, all intellectual property issues, and your rights and obligations are governed by the laws of the United States of America and the State of Arizona governing contracts wholly entered into and wholly performed within Arizona without regard to the conflicts of law provisions. Any action to enforce these terms and conditions or in any manner related to Empire Southwest will be brought exclusively in the federal or state courts located in Phoenix, Arizona and you agree to submit to the jurisdiction of such courts. You specifically agree that this Agreement is not governed by the United Nations Conventions on Contracts for the International Sale of Goods, if applicable. If you are accessing the Services from a physical location outside of the United States with laws or regulations governing personal data collection, use, and disclosure that are different from United States laws, you agree that by accessing the website, you are transferring your personal information to the United States and you consent to the application of the laws of the United States and the State of Arizona with respect to use of the Services and any dispute regarding the Services.
This Agreement constitutes the entire agreement between you and Empire Southwest with respect to the Services, and supersedes all previous written or oral agreements with respect to such subject matter. If any inconsistency exists between the terms of this agreement and any additional terms and conditions posted on the Empire Southwest website or as part of the Services, the terms will be interpreted as to eliminate any inconsistency, if possible, and otherwise, the additional terms and conditions will control. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provision hereof. Any provision determined to be invalid or unenforceable will be modified, to the extent possible, to be valid and enforceable so as to retain the intent of the parties.
For communications concerning the Agreement, please write to Empire Southwest, LLC, at:
Empire Southwest, LLC Attn: Legal Dept. 1725 S. County Club Drive Mesa, Arizona 85210
9. COPYRIGHT INFRINGEMENT
If you believe that your work has been copied and used with the Services in a way that constitutes copyright infringement, please provide Empire Southwest's Legal Department with the following information:
Empire Southwest's Legal Department for notice of claims of copyright infringement can be reached at:
Empire Southwest, LLC Attn: Legal Dept. 1725 S. County Club Drive Mesa, Arizona 85210 Telephone: 480-633-4000
Only notices under that Digital Millennium Copyright Act (17 U.S.C. § 512, et seq.) should be submitted to the Legal Department. Empire Southwest cannot take any action with respect to any notice unless all requested information is provided in the notice.