OnCall Air Terms of Service

Last Update: July 1, 2016

Welcome to OnCall Air, a d/b/a of ACDoctor, LLC (“we” or “Company”), and thank you for signing up for a subscription to the OnCall Air Proposal Manager (“Service”).

Please read these Terms of Service (“Terms”) carefully. By clicking to accept these Terms, or accessing the Service, you (“you”, “Your”, or “Customer”) agree to be bound to the terms and conditions of these Terms. If you are signing up for the Service on behalf of an organization, you are agreeing to these terms on behalf of that organization, and you promise to the Company that you have the authority to bind that organization to these Terms.

The Company 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 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.

Description of Service
The “Service” is a proposal management system that allows a home services provider, contractor dealer, salesperson, consultant, technician, or other users (referred to as a “Customer”) to create a custom, digital proposal for the sale of HVAC equipment, accessories, installation, and related products or services to a consumer (“User”).

The Service is hosted by the Company, and includes the software, source code, hardware, content, images, files, websites, and apps required to deliver the required functionality.   Excluding any Customer Content or User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service and its content are owned by Company or Company’s suppliers.  Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for User Content that you may provide on behalf of a User.  Company and its suppliers reserve all rights not granted in these Terms.  There are no implied licenses granted under these Terms.

Any amendments, modifications, enhancements or changes to the Service made available by the Company from time to time shall be subject to these Terms.

Limited License to Service
Subject to these Terms, Company grants Customer a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for Customer’s use of the Service.  Customer’s right to use the Service is conditioned on your compliance with these Terms.  The Company will have access to the User Content (defined below), and you have no other rights in this Service other than 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.

Term
These Terms begin on the date that you accept these Terms  (“Enrollment Date”)  by completing and electronically signing the signup form (“Order Form”) on the OnCallAir website at http://www.www.oncallair.com (the “Site”).

These Terms will continue from month to month until terminated by either party in accordance with these Terms.

Setup Services
The Company shall provide the configuration and installation service (“Setup Services”) to the Customer.

The Company shall ensure that the Setup Services are provided upon or promptly following the Effective Date, and in accordance with the availability of both the Company and the Customer.

The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Setup Services.

Authorized Use and Responsibilities
You represent and warrant that the information you supply to us, including but not limited to Customer Content or User Content, is correct and complete. You understand that the Company relies on the information you supply and that providing false or incorrect information may result in Service withholding or delays or the suspension or termination of your customer account.

Availability
The Service may not be available at all times, and may not be available in the format generally marketed, and some personal computers or mobile devices may not be available to receive the Service.

The Company, its suppliers and licensors 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 and to maintain session control or for any other purpose.

Organization Accounts and Administrators
When you sign up for an account for your organization you may specify one or more administrators. The administrators will have the right to configure the Service based on your requirements and manage Users in your organization account.

You are responsible for a) ensuring confidentiality of your administrator password, b) appointing reasonably competent individuals as administrators for managing your organization account, and c) ensuring that all activities that occur in connection with your organization account comply with these Terms. You understand the Company is not responsible for account administration and internal management of the Services for you.  Should you believe your password or security for your account has been breached in any way, you must immediately notify us at support@www.oncallair.com.

You are responsible for taking necessary steps for ensuring that your organization does not lose control of the administrator accounts. In the absence of any specified administrator account recovery process, the Company may provide control of an administrator account to an individual providing proof satisfactory to the Company demonstrating authorization to act on behalf of the organization. You agree not to hold the Company liable for the consequences of any action taken by the Company in good faith in this regard.

Fees & Payment
The services are made available under a one-time Setup Fee, and on a recurring basis based on a fee charged for the successful completion of a proposal (“Transaction Fee”).

The Setup Fee is charged to a Credit Card as soon as these Terms are accepted.

The Transaction Fee is eligible for charging as soon as a sales proposal (“Proposal”) created using the Service is received and marked as Accepted by the User (“Accepted Proposal”).

The Transaction Fee will be charged to the Credit Card (“Transaction Charges”) you registered during Setup with our online payment system. We provide you the option of changing the details if you would like the payment for future Transaction Fees to be made through a different Credit Card.

You authorize the Company to charge fees and other amounts automatically to your credit card on file without invoice.

Unless otherwise specified in an Order Form, such Transaction Charges typically occur weekly, reflecting the total accumulated amount of Accepted Proposals in the prior week.

Transaction Fee payments are non-refundable and non-creditable and payment obligations non-cancellable. 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 price of any Service or charge for use of Services that are currently available free of charge. Any increase in charges will be notified with at least 60 days of notice.

Refund Policy
If during the first 30 days after your Enrollment Date you decide you are not satisfied with the service, you may request a refund of your Setup Fee.

Transaction Fees are not refundable.

If a Transaction Fee is charged erroneously because a Proposal was incorrectly marked as accepted, you may request a review for refund by emailing the Company at support@www.oncallair.com. The Company will review the request and, in its sole discretion, determine if the Transaction Fee can be credited for use on a future proposal.

Customer and User Content
You own the content created or stored by you (“Customer Content”).  The User (a consumer of HVAC services), owns the User Content created by the User that they have provided to you, which is excluded from these Terms.  Unless specifically permitted by you, your use of the Services does not grant Company the license to use, reproduce, publish or distribute Customer Content created by you or stored in your account, or User Content stored in your account, for the Company’s commercial, marketing or any similar purpose.

Notwithstanding the above, you expressly grant the Company the right to use and analyze aggregate system activity data associated with use of the Service by you and other Customers or Users for the purposes of optimizing, improving or enhancing the way the Service operates, and to create new features and functionality in connection with the Service in the sole discretion of the Company.

Updates to the Service
The Company 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 a Service altogether.

Third Party Content & Services
All use of the Company’s Service is between you and the Company only. The Service may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including Web sites, product feeds, information and databases, applications, software, programs, products or services, and the Internet as a whole; you acknowledge that we are not responsible for such content or services.

We may also provide some content, pricing, availability, or product information to you as part of the Service. However, the Company is not an agent of any transacting party, nor are we a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party.

Cancellation & Termination
You are responsible for properly canceling your account. The account owner can cancel the account at any time by notifying the Company via the contact phone or email address at support@www.oncallair.com.  Once the cancellation request is confirmed, all of your content and configuration will be deleted from the Service within 2 business days upon cancellation.  This information cannot be recovered once the account is cancelled. Once cancelled, you will only be charged for pending Accepted Proposals that are eligible for the Transaction Fee.

The Company reserves the right to (i) modify or discontinue, temporarily or permanently, the Service and (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 of your content in the Service, for any reason, including, if the Company believes that you have violated these Terms.

Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. The Company shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service.

Indemnification
You shall defend, indemnify and hold harmless the Company 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 any third party through an account registered to you; (3) violation of applicable laws or regulations; (4) your use of the Service or the Internet or the placement or transmission of any message, information, software or other materials related to the Service on the Internet; (5) your negligent acts, errors, or omissions; (6) 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 (7) 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, the Company gives no warranty or representation that the Service will be wholly free from defects, errors and bugs.

The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms, the Company gives no warranty or representation that the Services will be entirely secure.

The Customer acknowledges that the Services are not designed to be compatible with all hardware, mobile devices or operating systems; and the Company does not warrant or represent that the Services will be compatible with all software or systems,

Disclaimers; Limitations of Liability
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, TO THE FULLEST EXTENT PERMITTED BY LAW AND THE COMPANY 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, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT THE COMPANY 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 THE COMPANY  OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL THE COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, 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, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW .

Arbitration
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 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. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

You understand and agree that by accepting this arbitration provision in these Terms, the Customer and Company 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 the Company might otherwise have had a right or opportunity to bring disputes in a court, 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 waived.  Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

This arbitration provision shall survive the termination of your account with us or our affiliates and your discontinued use of the Service.