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Last Update: August 22, 2024
Welcome to OnCall Air, a d/b/a of Watsco Ventures LLC, and thank you for signing up for a subscription to the OnCall Air Software (“Service”). The Service is a sales platform that allows home services providers, contractors/dealers, salespersons, consultants, technicians, or others to create a custom, digital or printed proposal (“Proposals”) primarily for the sale of home improvement products or services to their -customers (” End Users”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN PROVISIONS THAT GOVERN HOW YOU CAN BRING CLAIMS AND LIMIT OUR LIABILITY. PLEASE BE ADVISED THAT BY AGREEING TO THESE TERMS YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND WAIVING YOUR RIGHT TO HAVE A JURY TRIAL ON YOUR CLAIMS.
Please read these Terms of Service (“Terms”) carefully. By clicking to accept these Terms or accessing the Service, you agree to be bound by these Terms. If you are signing up for the Service on behalf of an organization, company or business (“Entity”), you hereby represent to us that you are duly authorized to act and agree to the Terms on behalf of that Entity and each of its officers, directors, employees, agents, independent contractors, members, managers, or partners who may be using the Service (any of the foregoing separately, and all together, are hereinafter referred to as “you;’ “your,” or “Customer”). OnCall Air, Watsco Ventures, LLC and its officers, directors, employees, agents, members, managers, and parent corporation are hereinafter referred to as “we” or “us” or “OCA.”
OCA reserves the right to update and change these Terms at any time. If in our sole discretion we deem a revision to these Terms to be material, we will notify you via email to the primary email address associated with your account.
OnCall Air® is a registered trademark in the United States owned exclusively by us and may be registered in other jurisdictions. Other trademarks, names and logos used in connection with the Service are the property of their respective owners. The use of the Service does not constitute an express or implied license to use the OnCall Air® trademark and you do not acquire any rights to the OnCall Air® trademark.
Limited License to Service
The Service is hosted by the Company and includes the software, source code, hardware, content, images, files, websites, and applications required to deliver the required functionality. Subject to these Terms, the Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your use of the Service. The Company is providing the Service to you and does not authorize you to use the Service for or on behalf of third parties. Your right to use the Service is conditioned on your compliance with these Terms. While the Company will have access to the Customer Content and User Content, OCA shall have no rights to use such Customer Content or User Content, except as provided in these Terms.
The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) and no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, to the Service and its content are owned by OCA and neither you nor any third parties shall have any rights, title or interest in or to such intellectual property rights. OCA reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms. The use of automated systems, artificial intelligence or software to extract data (“data scraping”) from OCA’s website or the Service is strictly prohibited. Any amendments, modifications, enhancements or changes to the Service made available by OCA from time to time shall be subject to these Terms.
Onboarding
OCA requires a setup process and information to be configured in the system for onboarding purposes. The Customer acknowledges that failure to provide the information or perform the required setup steps may delay their launch and use of the system.
Authorized Use and Responsibilities
You represent and warrant that the information you supply to us, including but not limited to Customer Content or End User Content, is correct and complete and that you own or have licensed all Customer Content and End User Content. You understand that OCA relies on the information you supply and that providing false or incorrect information may result in Service withholding, delays or the suspension or termination of your customer account.
Availability & Updates to the Service
The Service may not be available at all times and may not be available in the format generally marketed, and some personal computers, browsers, or mobile devices may not be configured to use the Service. OCA reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features, and we may suspend or stop the Service in whole or in part.
OCA may, at any time, without notice or liability to you, restrict in whole or in part the use of the Service or limit availability in order to perform maintenance activities or to maintain session control or for any other purpose.
Entity Accounts and Users
You may specify one or more users or administrator for your Entity account. You are responsible for a) ensuring confidentiality of your user account passwords, b) appointing reasonably competent individuals as administrators for managing your Entity account, and c) ensuring that all activities that occur in connection with your Entity account comply with these Terms. The administrators will have the right to configure the Service based on your requirements and manage the use of the Service within your Entity. You understand that OCA is not responsible for account administration and internal management of the Services for You. Granting and controlling access to user accounts is your sole responsibility. Should you believe your password or security for your account has been breached or compromised in any way, you must immediately notify us at support@oncallair.com.
You are responsible for taking necessary steps for ensuring that your Entity does not lose control of the user accounts. In the absence of any specified user account recovery process, OCA may provide control of a user account to an individual providing proof satisfactory to
OCA demonstrating authorization to act on behalf of the Entity. You agree not to hold OCA liable for the consequences of any action taken by OCA in good faith in this regard.
Service Fees
The fees for the Service consist of a one-time fee (“Setup Fee”) and a monthly recurring fee to access the Service (“Service Fee”). For avoidance of doubt, the Service Fee does not include any payments collected or processed on behalf of Third Party Providers.
You authorize OCA to charge the Set Up Fee and monthly Service Fees automatically to your credit card on file without invoice.
Service Fee payments are non-refundable and non-creditable during the term of your subscription. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.
From time to time, we may change the pricing structure of the Service, offer special promotions, or increase the price of the Service, or impose new charges for functions or features of the Service that are currently available free of charge. We will notify you of any change in the price for the Service, excluding any state sales tax changes, by providing at least 60 days’ notice, which may be given via email to the primary email address associated with your account.
Refund Policy
If a Service Fee is charged erroneously, you may request a refund by contact OCA directly. OCA will review the request and, in its sole discretion, determine if the Service Fee can be adjusted, refunded or credited for use in the future.
Customer and End User Content
You own the content uploaded, created or stored by you in your account, including but not limited to customer lists, employee information, pricing strategy, and custom product information not provided by OCA (“Customer Content”). Your End Users will provide you with their personal information such as name, address, telephone number and email address (“End
User Content”). Unless specifically permitted by you, your use of the Services does not grant OCA the license to use, reproduce, publish or distribute Customer Content or End User Content for OCA’s commercial, marketing or any similar purposes. Notwithstanding the foregoing, you expressly grant OCA the right to access Customer Content and End User Content (i) in connection with the Setup Services provided to the Customer; (ii) with any customer service or troubleshooting requests by the Customer; (iii) for purposes of optimizing, improving or enhancing the way the Service operates, or to create new features and functionalities in connection with the Service; or (iv) with your consent for purposes of providing Third Party Services.
Notwithstanding the above, you expressly grant the Company the right to monitor use of the Service by all Customers and Users and use the data gathered in an aggregate and anonymous manner (“Aggregate Data”), provided that such information does not directly identify any Customer Content or User Content, for purposes of marketing and promoting the Service.
Third Party Content & Services
OCA is solely providing the Service and not any other products or services. The Service may contain, make available, provide, or have a link to, content, data, information, products, services, applications, software, programs, features or other functionalities of third parties, including product feeds, product pricing and availability or other data available on the Internet as a whole (“Third Party Content”). Providers of such Third Party Content include but are not limited to third parties such as OEMs, manufacturers or distributors of equipment, parts and supplies, financing companies or lenders, warranty providers, and field service management companies (“Third Party Providers”).
You acknowledge and agree that we are not responsible for any Third Party Content and you specifically release us from any claims or damages relating to, or arising out of, the access to, purchase or use of any Third Party Content.
While the Service is designed to facilitate business transactions, including payment processing, between the Customer and the End Users (“End User Transactions”), we are not a party to, nor shall we be liable for, any End User Transaction made or facilitated through the Service, nor do we act as agent or in any other capacity on behalf of any of the parties to such End User Transactions. Any End User Transactions are solely among such parties at the exclusion of
OCA. Please review the sections below entitled “DISCLAIMERS” and “LIMITATIONS OF LIABILITY” carefully as they affect your legal rights.
Non-Circumvention/Mis-Use of the Service
In the event OCA suspects that a Customer is circumventing payment of the Service Fee intentionally, OCA shall be entitled to terminate the Service effective immediately and pursue any legal remedies against the Customer or the End User on the basis of any legal theory, whether in contract, tort, or otherwise. You may not interfere with or disrupt the operation of the Service or servers. You may not attempt to gain unauthorized access to the Service or other accounts.
Cancellation & Termination
You are responsible for properly canceling your account. The account owner can cancel the account at any time by notifying OCA via the email address at support@oncallair.com.
Once the cancellation request is confirmed, you will have 5 days to access the system to retrieve Customer and End User Content. The Customer may also request in writing a data extract of Customer Content and End User Content within the 5 day period. The extract will contain the primary Customer and End User content data elements, determined at the sole discretion of OCA.
All of your content and configuration may be deleted from the Service after cancellation. Once your account is cancelled, OCA may not be able to recover any of the Customer Content or End User Content nor any information relating to the End User Transactions.
Once cancelled, you will only be charged for pending activity in the month of cancellation based on the appropriate Service Fee tier.
OCA reserves the right to (i) modify or discontinue, temporarily or permanently, the Service or (ii) refuse any and all current and future use of the Service, suspend or terminate your subscription or use of the Service and remove and discard any Customer Content or End User Content for any reason, including, if OCA believes that you have violated these Terms.
OCA shall not be liable to you, any End User or any third party for any modification, suspension or discontinuation of the Service, or the removal of any Customer Content or End User Content.
Compliance with Laws
You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You may not use the service for any unlawful purposes. Any suspected fraudulent, abusive, or illegal activity by the Customer or a End User shall constitute grounds for termination of your use of Service and may be referred to appropriate law enforcement authorities.
You’re responsible for determining whether our Services are suitable for you to use in light of any regulations at the municipal, state or national level and whether any End User Transactions require you to hold any licenses or permits. While OCA may assist you in configuring the Service, such assistance should not be construed as legal, financial or tax advice. If you have questions about which laws and regulations may apply, you should consult an appropriate legal or tax professional.
Indemnification
You shall defend, indemnify and hold harmless OCA, and each of its officers, directors, employees, agents, independent contractors, members, managers, and parent corporation, from and against all claims, actions, proceedings, liabilities, losses, damages, costs and expenses, including reasonable attorney’s fees, relating to or arising from: (1) your breach of these Terms; (2) your use of the Service and the use of the Service by an End User or any third party through an account registered in your name; (3) your use of, or access to, any Third Party Content or End User Content; (4) any End User Transactions; (5) any service or product requested or obtained from Third Party Providers; (6) any violation of applicable laws or regulations by you or an End User; (7); negligent acts, errors, or omissions or willful misconduct by you or an End User; (8) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with the Service; or (9) claims for infringement of any intellectual property rights arising from your use of the Service other than in accordance with these Terms.
Acknowledgements and Warranty Limitations
The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms, OCA gives no warranty or representation that the Service will be wholly free from defects, errors and bugs. See above
Refund Policy, and below Disclaimers; Limitations of Liability.
The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms, OCA gives no warranty or representation that the Service will be entirely secure or its integrity could not be compromised.
The Customer acknowledges that the Services are not designed to be compatible with all hardware, mobile devices, browsers, or operating systems; and OCA does not warrant or represent that the Services will be compatible with all software or systems.
DISCLAIMERS
THE SERVICE, INCLUDING THE SITE, CONTENT, INTEGRATIONS, APPS, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, OCA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. YOU ACKNOWLEDGE THAT OCA DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM OCA OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH END USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE. OCA SHALL NOT BE LIABLE FOR ANY ERRORS OR MISSTATEMENTS IN PROPOSALS PRESENTED TO ANY END USER. IT SHALL BE THE SOLE RESPONSIBILITY OF THE CUSTOMER TO REVIEW THE DETAILS, INCLUDING ANY CALCULATIONS, OF ANY PROPOSAL.
OCA DOES NOT GUARANTEE THE QUALITY, SUITABILITY, COMPETENCE OR ABILITY OF
THIRD-PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, END USER TRANSACTIONS, AND ANY SERVICE OR PRODUCT REQUESTED OR OBTAINED FROM THIRD-PARTY PROVIDERS IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
OCA DOES NOT CONTROL, MANAGE OR DIRECT ANY THIRD-PARTY PROVIDERS. THIRD-PARTY PROVIDERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF OCA. IF A DISPUTE ARISES BETWEEN YOU AND OR ANY OTHER THIRD PARTY OR END USER, YOU HEREBY FULLY RELEASE OCA FROM LOSSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
OCA DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY END USER CONTENT OR THIRD-PARTY CONTENT AVAILABLE ON OR LINKED TO BY THE SERVICES.
YOU UNDERSTAND THAT OCA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF CUSTOMERS, THIRD PARTY PROVIDERS OR END USERS OF THE SERVICE. OCA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF CUSTOMERS, THIRD PARTY PROVIDERS OR END USERS OF THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH END USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE. OCA EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY END USER TRANSACTIONS OR ANY ACT OR OMISSION OF ANY CUSTOMER, THIRD PARTY PROVIDER OR END USER.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL OCA BE LIABLE TO YOU OR AN END USER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, LOST GOODWILL OR BUSINESS INTERRUPTION, IN CONNECTION WITH, OR RELATING TO, THE SERVICE OR END USER TRANSACTIONS, FROM THE USE OF OR INABILITY TO USE THE SERVICE, FROM ANY COMMUNICATIONS,
INTERACTIONS OR MEETINGS WITH CUSTOMERS, END USERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OCA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
IN NO EVENT WILL OCA’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICE, END USER TRANSACTIONS OR ANY SERVICE OR PRODUCT REQUESTED OR OBTAINED FROM THIRD-PARTY PROVIDERS, EXCEED THE SERVICE FEES PAID TO OCA IN THE SIX (6) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OCA AND YOU AND ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN OCA AND YOU, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. Some jurisdictions or states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, OCA’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Arbitration & Choice of Law
Any controversy or claim arising out of or relating to the Terms shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party.
The decision of the arbitrator shall be final and may not be appealed. The arbitration shall be conducted in Miami, Florida and judgment on the arbitration award may be entered into any court having jurisdiction thereof.
Because this Service and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. These Terms shall be construed and enforced pursuant to the laws of the State of Florida, both substantive and procedural, without regard to conflicts of law principles.
This arbitration provision shall survive the termination of your account with us or our affiliates
and your discontinuation of the Service.
JURY TRIAL & CLASS ACTION WAIVER
CUSTOMER AND OCA HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION, DEFENSE, COUNTERCLAIM, OR OTHER PROCEEDING ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT.
You understand and agree that by accepting this arbitration provision in these Terms, the Customer and OCA are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this arbitration provision, you and OCA might otherwise have had a right or opportunity to bring disputes in a court of law, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are hereby waived. By agreeing to this arbitration provision, you are limiting, eliminating or waiving other rights that you would be entitled to in the absence of such arbitration provision, e.g., the rights to both appeal and certain types of discovery.
OCA and Customer expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a class, collective, coordinated, consolidated, and/or representative action, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any class, collective, coordinated, consolidated, and/or representative action, or to award relief to anyone but the individual in arbitration. OCA and Customer also expressly waive the right to seek, recover, or obtain any non-individual relief. Notwithstanding anything else in this agreement, this Class Action Waiver does not prevent you or OCA from participating in a classwide, collective, and/or representative settlement of claims. OCA and Customer further agree that if for any reason a claim does not proceed in arbitration, this Class Action Waiver shall remain in effect, and a court may not preside over any action joining, coordinating, or consolidating the claims of multiple individuals against OCA in a single proceeding.