Last Update: July 12, 2017
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
Welcome to OnCall Air, a d/b/a of ACDoctor, LLC (“we” or “us” or “Company”), and thank you for signing up for a subscription to the OnCall Air Software (“Service”). The Service is a sales & proposal management system that allows home services providers, contractors/dealers, salespersons, consultants, technicians, or others to create a custom, digital proposal for the sale of HVAC equipment, accessories, installation, and related products or services to consumers of HVAC services (such consumers are hereinafter referred to as “Users”).
Please read these Terms of Service (“Terms”) carefully. By clicking to accept these Terms, or accessing the Service, you agree to be bound by the terms and conditions of these Terms. If you are signing up for the Service on behalf of an organization, you hereby represent to us that you are duly authorized to act and agree to the Terms on behalf of that organization 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, hereinafter referred to as “you,” “your,” or “Customer”).
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 owned exclusively by us and the same 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 implied license to use the OnCall Air® trademark.
Description of Service
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 (each as defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, to the Service and its content are owned by the Company or the Company’s suppliers and neither you nor any third parties shall have any rights, title or interest in or to such intellectual property rights. The 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, 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. 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, the Company 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.
These Terms begin on the date that you accept these Terms when you sign up for the Service (“Enrollment Date”). These Terms will continue from month to month until terminated by either party in accordance with these Terms.
The Company shall provide the configuration and installation services (“Onboarding Services”) to the Customer.
The Company shall ensure that the Onboarding Services are provided upon or promptly following the Enrollment Date, and in accordance with the availability of both the Company and the Customer.
The Customer acknowledges that a delay in the Customer’s performance of its obligations under the Agreement may result in a delay in the performance of the Onboarding 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.
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.
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 or 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 the use of the Service within your organization.
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 that 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 or compromised in any way, you must immediately notify us at email@example.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 fees for the Service consist of a one-time fee (“Onbarding Fee”), and, on a recurring basis, a fee charged for each successful completion of a proposal (“Transaction Fee”).
As soon as you accept these Terms, we will charge the Onboarding Fee to the credit card you registered upon signup for the Service.
The Transaction Fee may be charged to the same credit card as soon as a sales proposal (“Proposal”) that has been created using the Service, has been received and marked as Accepted by the User (“Accepted Proposal”). The Transaction Fee is not charged for Accepted Proposals that are completed during the Trial Period (defined below).
If you would like the payment for future Transaction Fees to be made through a different credit card, you have the option to change the credit card details at any time.
You authorize the Company to charge fees and other amounts automatically to your credit card on file without invoice.
Unless otherwise specified when you sign up for the Service, Transaction Fees are typically charged on a weekly basis, 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 pricing structure of the Service, 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 upon at least 60 days’ notice, which may be given via email to the primary email address associated with your account.
You have a 30 day trial period (“Trial Period”) starting the day after your Enrollment Date. You will not be assessed the Transaction Fee for proposals that are Accepted prior to the end of the Trial Period.
If during the first 30 days after your Enrollment Date you decide that you are not satisfied with the Service, you may request a refund of your Setup Fee.
If a Transaction Fee is charged erroneously because a Proposal was incorrectly marked as accepted, you may request a refund by contact the Company directly. The Company will review the request and, in its sole discretion, determine if the Transaction Fee can be refunded or credited for use on a future proposal.
In case you suspect that any error in a Proposal or Accepted Proposal was the result of a system error of the Service, you may request a refund by contacting the Company directly. 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. In no event shall the Company’s liability exceed $250 for any system errors of the Service.
The Company shall not be liable for any errors or misstatements in Proposals, Accepted Proposals presented to any User. It shall be the sole responsibility of the Customer to review the details, including any calculations, of any Proposal or Accepted Proposal. 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.
Acknowledgements and Warranty Limitations and Disclaimers; Limitations of Liability.
Customer and User Content
You own the content created or stored by you (“Customer Content”). Your Users will provide you with their personal and other information (“User Content”). Unless specifically permitted by you, your use of the Services does not grant the 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 purposes.
Notwithstanding the above, you expressly grant the Company the right to: (i) 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 or User Content; (ii) use and analyze such Aggregate Data for purposes of optimizing, improving or enhancing the way the Service operates, or to create new features and functionalities in connection with the Service, in each case, in the sole discretion of the Company; and (iii) access Customer Content and User Content in connection with the Setup Services provided to the Customer or with any customer service or troubleshooting requests by the Customer.
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 the Service in whole or in part.
Third Party Content & Services
The Company is providing the Service to you and does not authorize you to use the Service for or on behalf of third parties. The Company is solely providing the Service and not any other products or services. The Service may contain, 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”). 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 or use of any Third Party Content.
While the Service is designed to facilitate business transactions between the Customer and the Users (“User Transactions”), we are not a party to, nor shall we be liable for, any 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 User Transactions. Any User Transactions are solely among such parties at the exclusion of the Company. See below Disclaimers; Limitations of Liability.
In the event the Customer presents a Proposal to a User using the Service, the Customer shall be prohibited from soliciting acceptance of the Proposal outside the Service, in an effort to circumvent the obligation to pay the Transaction Fee for every Accepted Proposal. In the event the Company suspects that a Customer is circumventing payment of the Transaction Fee in such or similar manner, the Company shall be entitled to terminate the Service effective immediately and pursue any legal remedies against the Customer or the User on the basis of any legal theory, whether in contract, tort, or otherwise.
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 firstname.lastname@example.org.
Once the cancellation request is confirmed, assuming you have paid all fees owed to the Company, you will have 5 days to access the system to retrieve Customer and User Content. The Customer may also request in writing a data extract of Customer Content and User Content within the 5 day period. The extract will contain the primary Customer and User content data elements, determined at the sole discretion of the Company.
All of your content and configuration will be deleted from the Service 10 business days after cancellation. Once your account is cancelled, the Company cannot recover any of the Customer Content or User Content nor any information relating to the User Transactions. 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 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 User Content for any reason, including, if the Company believes that you have violated these Terms.
Your account becomes inactive (“Inactive Account”) if you have not created a transaction within a period of 4 months. In the case that you become an Inactive Account, the Company may choose to cancel your account and your support services may be discontinued. You will be notified in writing before your account is considered Inactive, and in some cases, both parties may mutually agree that it is in your best interest to stay Inactive until an agreed upon event or timeline in the future.
Any suspected fraudulent, abusive, or illegal activity by the Customer or a User shall constitute grounds for termination of your use of Service and may be referred to appropriate law enforcement authorities. The Company shall not be liable to you, any User or any third party for any modification, suspension or discontinuation of the Service, or the removal of any Customer Content or User Content.
You shall defend, indemnify and hold harmless the Company, and each of its officers, directors, employees, agents, independent contractors, members, managers, and partners, 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 a User or any third party through an account registered in your name; (3) your use of, or access to, any Third Party Content or User Content; (4) any User Transactions; (5) your interaction with other Customers or Users; (6) any violation of applicable laws or regulations by you or a User; (7) 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, including any Customer Content or User Content, on the Internet; (8) negligent acts, errors, or omissions by you or a User; (9) 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 (10) 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. 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, the Company 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 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, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, 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, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. 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.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE. YOU UNDERSTAND THAT THE COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF CUSTOMERS OR USERS OF THE SERVICE. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF CUSTOMERS OR USERS OF THE SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH USERS OF THE SERVICE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE. THE COMPANY EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY USER TRANSACTIONS OR ANY ACT OR OMISSION OF ANY CUSTOMER OR USER.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO YOU OR A 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 USER TRANSACTIONS, FROM THE USE OF OR INABILITY TO USE THE SERVICE, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH CUSTOMERS, 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 THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICE OR USER TRANSACTIONS, OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, OR IN CONNECTION WITH ANY INTERACTIONS WITH ANY OTHER CUSTOMERS OR USERS, EXCEED ONE HUNDRED U.S. DOLLARS (US$100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU, AND ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE COMPANY 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, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY 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 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 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.
This arbitration provision shall survive the termination of your account with us or our affiliates and your discontinuation of the Service.