TERMS OF SERVICE
Effective Date: October 22, 2021
Last Updated Date: September 22, 2021
PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY. OCTOPUSAPP, INC. D/B/A JOBBER (“JOBBER”/“WE”/“US”/“OUR”) OWNS AND OPERATES THE WEBSITE LOCATED AT HTTPS://GETJOBBER.COM/ (“WEBSITE”) AND ANY SUBDOMAINS USED IN CONNECTION WITH OR RELATED TO THE SAME, AND THE JOBBER MOBILE APPLICATION MADE AVAILABLE BY JOBBER AND THROUGH THIRD-PARTY MARKETPLACES (THE “APP”). THESE TERMS OF SERVICE APPLY TO ALL USERS OF THE WEBSITE, INCLUDING USERS WHO UPLOAD ANY MATERIALS TO THE WEBSITE, USERS WHO USE SERVICES PROVIDED THROUGH THIS WEBSITE, USERS WHO DOWNLOAD THE APP AND USERS WHO SIMPLY VIEW THE CONTENT ON OR AVAILABLE THROUGH THIS WEBSITE.
YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OLD TO USE THE WEBSITE AND APP. BY ACCESSING, BROWSING AND USING THIS WEBSITE AND/OR THE APP, YOU INDICATE THAT YOU HAVE READ AND ACCEPT THESE TERMS OF SERVICE WHICH CONSTITUTES A BINDING LEGAL AGREEMENT GOVERNED BY AND MADE UNDER CANADIAN LAW BETWEEN YOU AND JOBBER. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, THEN DO NOT USE THE APP OR THIS WEBSITE OR ANY OF THEIR CONTENT OR SERVICES. THE TERM “YOU” OR “YOUR” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU’RE REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE, APP OR THE SERVICE.
PLEASE BE AWARE THAT SECTION 20 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICE OR SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF ALBERTA, CANADA WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
NON-MOBILE APP USERS: IF YOU SUBSCRIBE TO THE SERVICE FOR A FREE TRIAL, AND DO NOT CANCEL THE SUBSCRIPTION PRIOR TO THE END OF THE FREE TRIAL PERIOD, THE TERMS WILL BE AUTOMATICALLY RENEWED ON A MONTHLY OR ANNUAL BASIS AT JOBBER’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 3 BELOW. IF YOU SUBSCRIBE TO THE SERVICES UNDER A SUBSCRIPTION PLAN FOR A TERM (“INITIAL TERM”), THEN THOSE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT JOBBER’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 3 BELOW.
MOBILE APP USERS: IF YOU SUBSCRIBE FOR A FREE TRIAL YOU WILL HAVE THE RIGHT TO USE THE SERVICE FOR THE TRIAL PERIOD THROUGH THE APP IF YOU DOWNLOAD THE JOBBER APP THROUGH A THIRD-PARTY APP STORE. YOUR ABILITY TO USE ALL FEATURES OF THE APP WILL TERMINATE ON EXPIRY OF THE TRIAL UNLESS YOU OPT TO MAKE AN IN-APP PURCHASE TO SUBSCRIBE TO A PAID PLAN GRANTING FULL ACCESS TO THE SERVICE. PLEASE SEE FURTHER DETAILS OF APP SUBSCRIPTION PLANS IN SECTION 11 BELOW.
IF YOU ARE ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF A CORPORATION OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY RIGHT AND AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE ON BEHALF OF SUCH CORPORATION OR ENTITY AND TO BIND SUCH CORPORATION OR ENTITY TO THESE TERMS OF SERVICE.
PLEASE NOTE THAT THESE TERMS OF SERVICE ARE SUBJECT TO CHANGE BY JOBBER IN ITS SOLE DISCRETION AT ANY TIME. When material changes are made, Jobber will send you an email or in-App notification. We will also update the “Last Updated” date at the top of the Terms of Service. Any non-material change (such as clarifications) to these Terms of Service and any new terms governing new features, functionality or services will become effective on the date the change is posted. For any other material changes to the Terms of Service will be effective: (i) immediately for new Users of the Website, the App, and/or Service; and (ii) thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail or in-App notice of such changes to registered Users (defined in Section 2 below). Jobber may require you to provide consent to the updated Terms of Service in a specified manner before further use of the Website, the App, and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the App and/or the Service. Otherwise, your continued use of the Website, the App, and/or Service constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE OR THE APP’S ABOUT PAGE TO VIEW THE THEN-CURRENT TERMS.
The Jobber service enables users to run a mobile service business including without limitation CRM, scheduling, billing, invoicing and payment integration functions, as well as the Jobber payment processing service, all as further described on the Website (the “Service”) and the underlying hardware, software, network storage, and related technology required to run the Service is provided by Jobber and its third-party vendors and hosting partners.
b) Account Ownership. If you register for the Service on behalf of a business organization, that business organization will be the legal and beneficial account owner. For the purpose of these Terms of Service, regardless of whether you register for an account as an individual, or on behalf of an organization, the billing contact person will be the default account owner (the “Account Owner”). The Account Owner will have certain rights within the account, including the right to cancel the account, delete information from the account and appoint administrators. Notwithstanding anything to the contrary contained herein, you acknowledge and agree that the term Account Owner does not convey or connote ownership rights or any other property interest in an account, even where you are designated as the Account Owner, and you further acknowledge and agree that all rights in and to your account are and shall forever be owned by and inure to the benefit of Jobber. Although the Account Owner can also appoint a new Account Owner if the billing contact is not the appropriate person to manage the account, in the event of a dispute regarding entitlement to access an account, we reserve the right to request documentation to determine or confirm account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file or any other information that Jobber may reasonably request in its discretion. Jobber retains the right to determine, in our sole judgment, who the rightful Account Owner is and may transfer an account to the person we consider is the rightful Account Owner. If we are unable to reasonably determine the rightful Account Owner, Jobber reserves the right to temporarily disable an account until resolution has been determined between the disputing parties.
c) Third-Party Accounts. If you access the Website, App and/or Service through a SNS as part of the functionality of the Website, the App and/or the Services, you may link your account with Third-Party Accounts, by allowing Jobber to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Jobber and/or grant Jobber access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Jobber to pay any fees or making Jobber subject to any usage limitations imposed by such third-party service providers. By granting Jobber access to any Third-Party Accounts, you understand that Jobber may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Website, App and/or Service (“Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Website, App and/or Service via your account. Unless otherwise specified in the Terms of Service, all SNS Content shall be considered to be User Content (defined in section 4) for all purposes of the Terms of Service. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on Website, App and/or Service. Please note that if a Third-Party Account or associated service becomes unavailable, or the third-party service provider terminates Jobber’s access to such Third-Party Account or Jobber terminates access, then SNS Content will no longer be available on and through Website, App and/or Service. If you decide at any time that you no longer wish to have your Third-Party Account linked to your account, please contact us at [email protected]. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND JOBBER DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Jobber makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Jobber is not responsible for any SNS Content.
Jobber App subscribers please refer to Section 11 below for details relating to subscription plans, fees and service cancellation through the App.
a) Restrictions Generally. Jobber reserves the right at all times (but will have no obligation) to remove or refuse to distribute any User Content and to terminate users or reclaim usernames. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of our users and the public. In using the Website, App and/or Service You shall not:
i. copy any content unless expressly permitted to do so herein;
ii. upload, post, email, transmit or otherwise make available any material that:
aa) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, violates any law, or is otherwise objectionable;
bb) You do not have a right to make available under any law or under a contractual relationship;
cc) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party (including privacy rights);
dd) use communication features of the Service (or other functionality made available through the Service) to transmit unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
ee) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Website or that of any users or viewers of the Website or that compromises a user’s privacy; or
ff) contains any falsehoods or misrepresentations or create an impression that You know is incorrect, misleading, or deceptive, or any material that could damage or harm minors in any way;
iii. impersonate any person or entity or misrepresent their affiliation with a person or entity;
iv. forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted to or through the Website or impersonate another person or organization;
v. interfere with or disrupt the Website or servers or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website or probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
vi. intentionally or unintentionally violate any applicable local, state, national or international law or regulation;
vii. collect or store personal data about other users or viewers;
viii. license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Website or App; or
ix. modify, translate, make derivative works of, disassemble, duplicate, adapt, hack, decompile, reverse compile, modify or reverse engineer any part of the App or any software provided as part of the Service or to falsely imply that another website is associated with the Service, Jobber or any other Jobber service, except to the extent the foregoing restrictions are expressly permitted by applicable law.
b) Acceptable Use. You agree to comply with all Applicable Laws in connection with the use of the Services, including the provision of any personal data and other Content to Jobber. You also agree not to access the Website or App in a manner that utilizes the resources of the Website or App more heavily than would be the case for an individual person using a conventional web browser. If your bandwidth usage exceeds reasonable levels, or significantly exceeds the average bandwidth usage (as determined solely by Jobber) of other Jobber customers, we reserve the right to immediately disable your account and/or throttle your usage until you can reduce your bandwidth consumption. Notwithstanding the foregoing, operators of public search engines may use spiders or other bots for the purpose of creating publicly available searchable indices of the materials on this Website.
c) Jobber Provisioned Phone Numbers. Certain Jobber plans may include access to a company-specific phone number which may be used to send and receive SMS messages in connection with your business. For the avoidance of doubt, You will be solely responsible for the content and legality of any communications you transmit, collect or store through this feature and you will indemnify Jobber in respect of any claims arising in respect of the same. Company specific numbers are non-transferable by You. On cancellation or termination of your subscription or the applicable subscription plan that enables access to a company-specific number, Jobber may reclaim and reallocate any company-specific number not currently linked to an active subscription in a tier that grants access to this feature.
Except for User Content, the App, the Website, and the information and materials contained therein, are the property of Jobber and its licensors, and are protected from unauthorized copying and dissemination by copyright law, trademark law, and other intellectual property laws. Subject to these Terms of Service, Jobber grants you a non-transferable, non-transferable, non-exclusive, revocable license to (a) use the Website for your use, and (b) download, install and use one copy of the App on a mobile device that you own or control for your use (the “License”). Furthermore, with respect to the access through or download of the App from the Apple App Store, Google Play or any other third-party marketplace (each an “app store ”), you will only use the App (i) on the branded device of the applicable app store owner, if required by the app store owner’s marketplace terms and conditions and (ii) as permitted by the “Usage Rules” set forth in the applicable app Store terms of service. The App is licensed to you and not sold. Nothing in the Terms of Service gives you a right to use the Jobber names, trademarks, logos, domain names, and other distinctive brand features without our prior written consent. You shall not attempt to override or circumvent any of the usage rules or restrictions on the Website. Any future release, update, or other addition to functionality of the Website or App shall be subject to the terms of these Terms of Service.
If You provide Jobber with any suggestions, comments or other feedback relating to any aspect of the Website, App and/or Service (“Feedback”), Jobber may use such Feedback in the Website, App, Service and/or in any other Jobber products or services (collectively, “Jobber Offerings”). Accordingly, You agree that: (a) Jobber is not subject to any confidentiality obligations in respect to the Feedback, (b) the Feedback is not confidential or proprietary information of You or any third party and You have all of the necessary rights to disclose the Feedback to Jobber, (c) Jobber (including all of its successors and assigns and any successors and assigns of any of the Jobber Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Jobber Offerings, and (d) You are not entitled to receive any compensation or reimbursement of any kind in respect of the Feedback.
You agree to cooperate with Jobber in conducting reasonable due diligence into any complaint that you or your customers receive relating to the Service (including performance of any components of the Service such as the account security and fraud prevention tools) and You agree that you will cooperate with Jobber to ensure appropriate action is taken in response to such complaints where necessary.
9. JOBBER MARKETPLACE
Jobber provides access to a marketplace enabling subscribing Jobber users to browse and obtain access to a variety of free and paid third-party software applications, tools and add-ons (collectively “Third-Party Apps”) which are offered by third-party developers (“App Providers”).
All transactions concluded on the Jobber Marketplace are concluded between You and the relevant App Provider. Although Jobber may be responsible for providing certain services on request such as listing Third-Party Apps for the App Providers, Jobber is not a party to any transaction through the Marketplace and the relevant App Provider is solely responsible for support and stipulating the terms on which access to a Third-Party App is provided. Use of any Third-Party App is always at your discretion and your sole risk and any problems with a Third-Party App should be resolved in the first instance with the applicable App Provider.
JOBBER DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE INCLUDING THIRD PARTY APPS ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE JOBBER MARKETPLACE AND JOBBER SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY. JOBBER WILL NOT BE LIABLE FOR ANY TYPE OF CONTENT EXCHANGED BY MEANS OF THIRD-PARTY APPS You agree to indemnify and hold us and our affiliates, partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third-Party App or your relationship with any App Provider.
10. LINKS; ADVERTISEMENTS; THIRD-PARTY INTEGRATIONS; CONTESTS.
The Website and App (including User Content) may contain links to other websites that are not owned or controlled by Jobber or may make it possible for you to elect to use third-party services with the Service where such third-party service providers have integrated with the Service (“Third-Party Integration Partners”). In no event shall any reference to any third party, third-party product or service be construed as an approval or endorsement by Jobber of that third party, third-party product or service. Jobber is also not responsible for the content of any linked websites or for the delivery of any product or service offered by third parties including Third-Party Integration Partners. In order to receive access to a Third-Party Integration Partner’s products or services, you will need, in most cases, to sign-up directly with the Third-Party Integration Partner. For certain services offered by Third-Party Integration Partners, you will be required to pay a fee to Jobber to turn on the third-party service. Any third-party websites or services (including those offered by Third-Party Integration Partners) are subject to the terms and conditions of those websites and or services and You are responsible for determining those terms and conditions and complying with them. The presence of a link to any other website(s) does not imply that Jobber endorses or accepts any responsibility for the content or use of such websites, and You hereby release Jobber from all liability and/damages that may arise from Your use of such websites or receipt of services from any such websites. While Jobber does not prohibit linking to third-party websites and content, it does not wish to be linked to or from any third-party web site which contains, posts or transmits any of the prohibited content in Section 7 of these Terms of Service. Jobber reserves the right to prohibit or remove (or require You to remove) any link to the Website, including, without limitation, any link which contains or makes available any content or information of the foregoing nature, at any time. Jobber may from time to time offer promotions, sweepstakes, giveaways and contests on the Website. Participation in such initiatives requires your agreement to the contest rules that govern the specific promotional event.
If You are using a payment integration, You must adhere to the applicable rules and regulations of such payment integrator. In addition, You are responsible for ensuring the security of any cardholder data in Your possession including any cardholder data which you collect, process, transmit, or store. It is also Your obligation to inform Your customers about Your processing of their data and Your responsibility for the same.
You acknowledge and agree that the Website and App may contain advertisements. If You elect to have any business dealings with anyone whose products or services may be advertised on the Website or App, You acknowledge and agree that such dealings are solely between You and such advertiser and You further acknowledge and agree that Jobber shall not have any responsibility or liability for any losses or damages that You may incur as a result of any such dealings.
11. APP TERMS.
THE WEBSITE, SERVICE, APP, AND ALL MATERIALS PROVIDED THEREIN ARE PROVIDED “AS IS” AND JOBBER DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT RESULTS OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED. IN ADDITION, JOBBER SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM DOWNLOADING OR USING ANY SUCH MATERIAL. JOBBER DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE WEBSITE OR IN RESPECT TO ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE WEBSITE, AND JOBBER SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY. JOBBER WILL NOT BE LIABLE FOR ANY TYPE OF CONTENT EXCHANGED BY MEANS OF THE SERVICE.
13. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL JOBBER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THIS WEBSITE, APP OR THE SERVICE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE WEBSITE, OR (IV) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE. THESE LIMITATIONS SHALL APPLY EVEN IF JOBBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, JOBBER’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ONE HUNDRED US DOLLARS ($100) OR (B) AMOUNTS YOU’VE PAID JOBBER IN THE PRIOR 12 MONTHS (IF ANY). THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SHALL INDEMNIFY AND HOLD JOBBER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), INCURRED IN CONNECTION WITH ANY MATERIALS SUBMITTED, POSTED, TRANSMITTED OR MADE AVAILABLE BY YOU THROUGH THE SERVICE AND/OR ANY VIOLATION BY YOU OF THESE TERMS OF SERVICE, THE RIGHTS OF ANY THIRD PARTY, OR ANY APPLICABLE LAW OR REGULATION. This provision does not require you to indemnify jobber for any unconscionable commercial practice by jobber or for jobber’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
Sections 12, 13, 14, 18, 20, 21 and any outstanding payment obligations will survive the termination or expiry of this Agreement for any reason.
16. AVAILABILITY AND UPDATES.
Jobber may alter, suspend, or discontinue the Website, App, and/or Service at any time and for any reason or no reason, without notice, but will endeavor to provide notice of the same. The Website, App, and/or Service may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Jobber may periodically add or update the information and materials on this Website, App, and/or Service without notice. You may need to update third-party software from time to time in order to use the Website, App, and/or Service.
Security Generally. Jobber maintains a security program with appropriate administrative, technical, organizational, and physical security measures designed to protect your Content against unauthorized access, disclosure, and loss. However, information sent or received over the Internet is generally insecure and Jobber cannot and does not make any representation or warranty concerning security of any communication to or from the Website or the App or any representation or warranty regarding the interception by third parties of personal or other information. You are responsible for creating and keeping secure a strong password that you use to access the Service and you are responsible for any activities or actions under the account protected by your password. It is recommended that the password you use to access your account is unique to Jobber. If you create an account on behalf of a corporation or entity, you are responsible for any actions of administrative users you add to your account and you are liable for any payment obligations that they incur. User accounts are intended for one user only and are not to be shared by multiple users. Jobber will not be liable for any loss or damage arising from your failure to comply with these requirements.
18. CONFIDENTIALITY. “Confidential Information” means information of a party (“Disclosing Party”) that the other party (“Receiving Party”) receives in connection with the Service, which based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential to the Disclosing Party, including, without limitation, customer information, transactional information, and any other non-public content posted, transmitted or accessed through the Service. A Receiving Party shall (i) limit access and use of Disclosing Party’s Confidential Information to those of Receiving Party’s employees and agents that require such access and use in connection with the Service; (ii) not disclose Disclosing Party’s Confidential Information to third parties, unless authorized under this Section of the Terms; (iii) protect the Disclosing Party’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care; and (iv) not use the Disclosing Party’s Confidential Information for any purpose except as required to perform its obligations hereunder or as otherwise specifically permitted hereunder. Nothing in this Section shall prevent a Receiving Party from disclosing Confidential Information to a third party to the extent that such Confidential Information is: (i) previously known to the Receiving Party prior to disclosure by the Disclosing Party, without any obligation of confidentiality; (ii) publicly known or becomes publicly known through no breach of this Agreement by the Receiving Party; (iii) rightfully received from a third party under no confidentiality obligation with respect to the Confidential Information; or (iv) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. In addition, Confidential Information may be disclosed to governments and their agencies under lawful order or judicial order. In the event that Jobber receives a request or order to release your Confidential Information, we will notify You promptly (to the extent permitted by law), so that You may seek a protective order to prevent the disclosure of your Confidential Information.
19. RESPONSES TO LAW ENFORCEMENT
i. A binding court order compelling disclosure of certain records such as subscriber records and account details but not contents of communications; and/or
ii. A search warrant where contents of communications are sought
b) Unless prohibited by applicable law or where the court order, subpoena, or warrant requires no notification or delayed notification, Jobber may notify affected users when we receive legal process from a third party requesting that user’s data. Jobber may choose not to notify a user if Jobber deems, in its sole discretion, that providing notice would be ineffective, prejudicial, or might create a risk of injury or bodily harm to an individual or group, or to our property.
20. DISPUTE RESOLUTION.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Jobber and limits the manner in which you can seek relief from us.
a) Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, App, and/or the Service, to any products sold or distributed through the Website, App, and/or the Service, or to any aspect of your relationship with Jobber, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Jobber may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
b) Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Octopusapp dba Jobber at Suite 300, 10130 103 Street NW, Edmonton, AB, Canada, T5J 3N9 with a copy to [email protected]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under USD $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Jobber will pay them for you. In addition, Jobber will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than USD $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c) Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Jobber. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d) Waiver of Jury Trial. YOU AND JOBBER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Jobber are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 21(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e) Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the Provincial or Federal Courts located in the Province of Alberta. All other claims shall be arbitrated.
f) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Suite 300, 10130 103 Street NW, Edmonton, AB T5J 3N9 Canada, within 30 days after first becoming subject to this Arbitration Agreement and by email to Jobber at [email protected]. Your notice must include your name and address, your Jobber username (if any), the email address you used to set up your Jobber account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
g) Severability. Except as provided in subsection 21(f), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
h) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Jobber.
i) Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Jobber makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Jobber at the following address: Suite 300, 10130 103 Street NW, Edmonton, AB T5J 3N9 Canada.
21. GENERAL TERMS.
10130 103 Street NW