FieldEdge Flat Rate Mobile Terms & Conditions
Dated as of March 2020
The following terms and conditions (the “Terms and Conditions”) govern your (“Registrant” or “you”) use of the web application (the “Application”) known as “FieldEdge Flat Rate Mobile” provided to you by dESCO, LLC (“dESCO, LLC”, “we” or “us”), a New York corporation, as well as any content made available from or through the Application and this web site (collectively, the Service and our web site may be referred to as the “Service”). The Service is made available by dESCO, LLC. We may change the Terms and Conditions from time to time, at any time without notice to you, by posting such changes on the Service. If you do not agree to the Terms and Conditions, you should not access or otherwise use the Service.
- BY USING THE SERVICE, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS AS APPLIED TO YOUR USE OF THE SERVICE. Your continued use of the Service after we post any amendment to these Terms and Conditions constitutes your agreement thereto. We encourage you to review the Terms and Conditions prior to using the Service. The Terms and Conditions shall remain in full force and effect for so long as you use the Service and thereafter.
- Upon registering for the right to access and use the Service (“Registration”), Registrant shall provide true, accurate and complete information regarding Registrant in response to the registration questions, which will include Registrant’s name, business address, email address of a person with due authority, federal tax identification number, and such other information as we may request including credit card information as set forth below (the “Registration Data”). You shall promptly update the Registration Data if, at any time, it no longer is accurate or complete. NOTWITHSTANDING YOUR REGISTRATION FOR THE SERVICE, THE LICENSE FROM US TO YOU TO USE AND ACCESS THE SERVICE SHALL ONLY BE EFFECTIVE IF AND DURING SUCH TIME AS YOU PURCHASE AND HAVE UNUSED ANY WORK ORDER UNITS (AS DEFINED BELOW IN SECTION 5 OF THESE TERMS AND CONDITIONS).
- Upon Registration, you will have to provide an Administrator for the account (and you shall be required, at all times, to maintain one person as the Administrator) and a user-id for your account, as well as a unique password by which you will be permitted to access your account. You shall be required to maintain complete and up-to-date information relating to each employee and independent contractor granted permission to use the Service and such persons’ authorized function(s), and shall provide this information to dESCO, LLC upon its request. Each employee or independent contractor granted permission to use the Service will have his or her own user-id and password. You shall be responsible, at any time that an employee or independent contractor ceases to work for you or otherwise ceases to be authorized to use the Service, to ensure that his or her permission to use the Service is revoked.
- The Registration Data shall include a credit card that is in the name of and owned by Registrant for which Registrant hereby grants to dESCO, LLC the right to automatically charge and collect any fees for Work Order Units from such credit card as they are due hereunder. You waive any claim and release us from any claim or damages as a result of our collection from your credit card of any fees for Work Order Units as requested by you.
- You may terminate your Registration by emailing such request to us at firstname.lastname@example.org, in which case your Registration will terminate effective immediately upon our receipt of the request, subject to the provisions of this Section 3.
- We may terminate your Registration at any time for any reason, with or without cause in our sole discretion, by emailing you at the email address that you have provided in your Registration information, in which case your registration will terminate immediately upon our sending the email to you at such email address. It shall be your responsibility to ensure that your Registration Data is current with respect to your email address for communications.
- Upon a termination of your Registration voluntarily by you upon at least 30 days prior written notice to us, you shall be reimbursed (within 30 days of the last day of your Registration) an amount equal to the fee paid by you for any Work Order Units that remain unused on the last day of your Registration. Upon a termination of your Registration by dESCO, LLC as permitted by these Terms and Conditions, you shall forfeit the right to any unused Work Order Units remaining as of the date of termination as liquidated damages with respect to the termination by Profit Strategies (which shall be in addition to and not in lieu of any other legal or equitable rights and remedies available to dESCO, LLC).
- Upon our receipt of your notice of termination or our sending a termination notice to you, you immediately will no longer have the right to change or add any Registrant Content (as defined below), provided, however, you will have a period of 30 days during which you may export the Registrant Content. After such 30 day period, dESCO, LLC, in its discretion, may delete at any time your Registrant Content from the Service and its systems without notice or liability to you.
- Notwithstanding any termination of your registration, Sections 3, 5, 9, 11, 16, 17, and 18 through and including 27 shall remain in full force and effect.
- Limited License to Use of the Service.
- Subject to your agreement to and compliance with these Terms and Conditions, dESCO, LLC grants to you a non-exclusive, non-transferable, non-sublicensable, revocable limited license (subject to all terms and conditions and limitations herein) to access and use the Service using a Service supported web browser or a mobile device. Your acceptance of the Terms and Conditions only permits you to use the Service for your own business use. You may not use the Service for any other commercial purpose and you may not authorize or permit any other person or entity to use the Service under your Registration, other than your employees. You solely are responsible for any activity under your username. We will not be liable for any damages or losses resulting from an unauthorized use of your account. You may not use the Service in any manner that is inconsistent with any applicable federal, state or local laws, rules and regulations or for any unlawful purpose. You may not take any action to interfere with, interrupt or limit the use or functionality of the Service and may not use or send any “Trojan horse,” spider, worm, drop dead device, malicious logic, “time bomb,” trap or back door, other automatic device, or manual process to monitor, “mine,” or copy the web pages on the Service or the content contained therein, and may not otherwise upload, use or otherwise transmit any code, content or other files that contain a virus or other similar component.
- You acknowledge that the Service may include or provide, from time to time, other services that utilize or require the use of software and/or services developed, owned and/or licensed by dESCO, LLC. Without limitation to the foregoing, the Service may include elements that will synchronize data input by you at the Service with third party services (each a “Third Party Service Provider”). Unless otherwise expressly set forth in these Terms and Conditions, dESCO, LLC is not affiliated with any Third Party Service Provider nor does dESCO, LLC have a contractual or legal relationship with such Third Party Service Providers, and dESCO, LLC does not endorse or provide any representation or warranty as to any Third Party Service Provider nor the services the Third Party Service Provider provides or the accuracy or results of the synchronization of data from the Service with any Third Party Service Provider – the Service merely will migrate and update information from the Service that you have input to the Third Party Service Provider. It is solely your responsibility to obtain, pay for and maintain any license or other fee required for use of any Third Party Service Provider.
- Fees for Use of the Service.
- In order to use the Service, you must, with immediately available funds in U.S. dollars, pay for a license to use the Service with respect to each Work Order (as defined below) by means of purchasing Work Order Units (as defined below). The fee for each Work Order Unit shall be as set forth in the Profit Strategies Fee Schedule, posted at www.coolfront.com/feeschedule, as modified from time to time – any modification of the fee schedule shall be effective 30 days after being posted, with or without express notice to you. The fees for Work Order Units shall be due and payable immediately upon our acceptance of your request for Work Order Units. You shall be responsible for any and all fees and applicable taxes incurred by purchase of a Work Order Unit or from your use of the Service.
- A Work Order Unit does not, in and of itself, have any inherent monetary or other value (other than the right to use the license granted by dESCO, LLC to you with respect to a Work Order) and is not your private property. Except as expressly set forth in these Terms and Conditions, we will not provide any cash or refunds for any Work Order Unit.
- For purposes hereof, a “Work Order” shall mean, and shall grant to you, the right to use the Service for up to three (3) line-items. If more than three (3) line-items are required for a particular customer, an additional Work Order is required. The foregoing notwithstanding, you (with respect to your relationship with your underlying customer) may include more than three line-items on documentation with your customer (subject, in all cases, to the fees for Work Order Units in these Terms and Conditions).
- Each Work Order purchased by you for the applicable Service Fee shall be referred to herein as a “Work Order Unit.” For each Work Order entered by you at the Service, we will redeem from you one Work Order Unit. Without limitation to anything else in these Terms and Conditions, Work Order Units shall not be transferrable, assignable or delegable by you for any reason.
- You may purchase the right to use the Service for additional Work Orders, at any time and from time to time, through our web site at www.coolfront.com/purchaseorders. All requests for the purchase of additional Work Orders shall be subject to our approval, in our sole discretion. We will respond, through the administration function at www.coolfront.com, to you with our approval or rejection of your request to purchase additional Work Orders.
- In addition to the foregoing, in our sole discretion unless you have informed us in writing of your intention to terminate your Registration or to no longer purchase any additional Work Order Units, we may sell to you up to an additional 100 Work Order Units (and you hereby consent to dESCO, LLC charging your credit card for the fee for such Work Order Units) in the event that we determine that the number of Work Orders outstanding and unused is approaching zero (such that you would no longer have any outstanding Work Orders or right or license to use the Service) – in such case, you will be informed of such purchase and sale at the administration function at www.coolfront.com, and shall be liable for the cost of all such Work Order Units.
- Without limitation to anything in these Terms and Conditions, from time to time in dESCO, LLC’s sole discretion, you may receive (at no cost to you) promotional Work Order Units which, for all other purposes, shall be and have the rights of any other Work Order Unit purchased by you.
- YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS OTHERWISE SET FORTH ABOVE, dESCO, LLC IS NOT REQUIRED TO REFUND, FOR ANY REASON, AND YOU WILL NOT RECEIVE THE RETURN OF ANY MONEY OR OTHER COMPENSATION, FOR UNUSED WORK ORDER UNITS UPON THE TERMINATION OF YOUR REGISTRATION FOR ANY REASON, VOLUNTARY OR INVOLUNTARY. YOUR PURCHASE OF THE LIMITED LICENSE GRANTED HEREIN IS A COMPLETED TRANSACTION UPON OUR RECEIPT OF PAYMENT FOR THE WORK ORDER UNITS – ANY UNUSED WORK ORDER UNITS IN YOUR NAME DOES NOT CONSTITUTE REAL-WORLD CURRENCY OR A REAL-WORLD BALANCE OR A STORED VALUE, BUT RATHER MERELY CONSTITUTES THE MEASURE OF THE EXTENT OF YOUR LIMITED LICENSE UNDER THESE TERMS AND CONDITIONS.
- You are solely responsible for all information and other content that you post, publish and display through use of the Service, as well as for all email communications that you may have through the Service or otherwise through the use of your account (“Registrant Content”). All Registrant Content that you post, publish, display or distribute must comply with these Terms and Conditions and you are solely responsible and liable for all Registrant Content and the consequences of the publication, display or distribution thereof. Without limiting any other terms in these Terms and Conditions, you must first obtain any rights necessary (including copyright rights) to post, publish, display or distribute any Registrant Content, and, further, you agree to not publish, display or distribute any Content that (i) is obscene, indecent, pornographic, threatening, inaccurate, defamatory or otherwise is objectionable or could give rise to either civil or criminal liability, (ii) contains the social security number or credit card or bank account information of a third party, or (iii) infringes or could infringe on any copyright, trademark, publicity, privacy or other intellectual property right of a third party, unless you have the written consent of such third party to use the Registrant Content in the manner in which you are posting, publishing, displaying or distributing it.
- Registrant Content and Registration Data (other than credit card or bank account information) may be transferred unencrypted over various networks in furtherance of providing the Service.
- Operation of the Service. We reserve the right, in our sole discretion, to modify or cease operating the Service and/or any portion of the Services at any time or times. In our sole discretion, we may utilize a third party to host the Service (including Registrant Content) and/or to provide or assist in providing other Service. dESCO, LLC makes no guarantee or warranty regarding the use, quality or availability of the Service.
- License to Registrant Content. You hereby grant, and you represent and warrant to dESCO, LLC that you have the right to grant, to dESCO, LLC and our Affiliate Parties (as defined in Section 14 below) and the users of the Service, an irrevocable, perpetual, non-exclusive, royalty-free, fully sublicensable, fully paid up, worldwide license to use, copy, perform, display and distribute all Registrant Content and to prepare derivative works of, or incorporate into other works, such Registrant Content. We reserve the right to monitor your use of the Service to ensure compliance with these Terms and Conditions.
- Proprietary Rights. Subject to your rights in your Registrant Content only, and the license granted in Section 7 above, the Service and all information, data and material published on the Service including, without limitation, text, videos, graphics, photographs, sounds and messages, and the configuration and arrangement and enhancement thereof (collectively “Service Content”), is owned by us or our licensors or other Affiliate Parties, and is protected by copyright, trademark, tradesecret, patent and other proprietary rights, including, without limitation, copyright laws of the United States of America. The copying, redistribution, use, modification, creation of derivative works or publication by you of any Service Content, except as permitted in Section 3, is strictly prohibited. All rights reserved.All trademarks and service marks (including, without limitation, Coolfront, Coolfront logo, dESCO, LLC and the dESCO, LLC logo) appearing on this Service (the “Marks”) are trademarks or service marks of dESCO, LLC or their respective owners, and may not be copied, duplicated or used without the prior written consent of the owner.
- No License Granted. Except for your right to use the Service as set forth in these Terms and Conditions, neither dESCO, LLC nor any other Affiliate Party is granting you a license or right to use, copy, display or distribute the Service, Service Content, the Marks or any other rights (including intellectual property) of dESCO, LLC or an Affiliate Party.
- Links to Other Web Services. The Service may provide advertisements, information and other content of dESCO, LLC and/or an affiliate, service provider or other third party as well as links away from the Service to content, functionality and Services of third parties (including without limitation by means of a synchronization of your data from the Service to third party software, and/or services of a Third Party Service Provider) including Web Sites, servers, networks, information, Services, software or other services and products (“Third Party Content”). We are not responsible for any Third Party Content (including its accuracy, opinions expressed therein or the questions posed or use of the information garnered thereby) that you may access, and we do not investigate, monitor or check such content, and we are not responsible for the manner in which Third Party Content or third party software or Services may utilize, analyze or otherwise use or exploit information that you permit to be synchronized with or sent to third party Services and Services. You hereby irrevocably waive any direct or indirect claim against us relating to or resulting from your use or reliance on such Third Party Content. Inclusion at the Service of a link to Third Party Content does not imply our approval or endorsement of the linked Third Party Content. In the event that you proceed to Third Party Content, you are responsible for your communications and transactions with such third parties including with regard to delivery of and/or payment for goods and services.
- Updates. You understand that we may update or revise (including without limitation adding or removing features) the Service from time to time, in our sole discretion. By using the Service, you agree to accept any and all updates or revisions to the Service and that we may update the Service with or without notifying you.
- Support by Profit Strategies. dESCO, LLC will use commercially reasonable efforts to provide customer support during the period of your license to use the Service which will include telephone support between the hours of 8:30AM to 5:00PM Eastern Standard Time.
- Security; Action upon Termination of Employee. You shall be responsible, at all times during your license to the Service, for using good faith and commercially reasonable efforts to ensure third parties do not have access to or the right to use the Service or to have access to any Service Content.
- Communications from dESCO, LLC. By registering as a Registrant of the Service, you acknowledge and agree that you may receive communications from dESCO, LLC (including by email) including notices regarding the Service and promotional material regarding products or services of dESCO, LLC. If you would like, at any time, to unsubscribe to our email list, please click the “Unsubscribe” link at the bottom of the email communication and you will be removed from that particular mailing list.
- Indemnification. You agree to indemnify and hold us and our licensors, affiliates and service providers (together, “Affiliated Parties”) and our and their officers, directors, agents and representatives harmless from and against any liability, loss, claim, cost and expense of any kind, including reasonable attorneys’ fees and expenses, that we may incur in connection with or as a result of your use or misuse of the Service or any services provided by us, violation of the Terms and Conditions or any of the acts or omissions of you or your employees, agents or representatives. The foregoing indemnification obligations will survive any termination of your Registration or the Service.
- Access to Service and Disclaimers. THE SERVICE AND SERVICE CONTENT ON, FROM OR THROUGH THE SERVICE ARE PROVIDED BY US AND OUR SUPPLIERS “AS IS,” “AS AVAILABLE,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED BY US AND ANY OF OUR LICENSORS, AFFILIATES AND SERVICE PROVIDERS (TOGETHER, THE “AFFILIATED PARTIES”) (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFECT, ACCURACY, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, AND WARRANTIES ARISING TRHOUGH COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES THAT ACCESS TO THE SERVICE AND ANY SERVICE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE). THE SERVICE AND SERVICE CONTENT MAY CONTAIN BUGS, ERRORS OR OTHER LIMITATIONS. NO COMMUNICATIONS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SERVICE OR BY ANY OTHER MEANS SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER dESCO, LLC NOR ANY OF ITS AFFILIATED PARTIES SHALL HAVE ANY LIABILITY FOR OR AS A RESULT OF YOUR USE OF OR INABILITY TO USE THE SERVICE. OR FOR THE CONDUCT OF THIRD PARTIES INCLUDING OPERATORS OF EXTERNAL WEB SITES. WITHOUT LIMITATION, IN NO EVENT WILL dESCO, LLC AND/OR ITS AFFILIATED PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN ANY ELECTRONIC FILE OR OTHERWISE AT OR OBTAINED FROM THE SERVICE, IN ANY FORM, IS DISCLAIMED. THIS SERVICE AND THE INFORMATION AND SERVICES THEREON WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. FURTHER, AND WITHOUT LIMITATION OF THE FOREGOING, NEITHER US NOR ANY AFFILIATED PARTY IS LIABLE OR RESPONSIBLE FOR (I) ACTS OR OTHER CONDUCT OF THIRD PARTIES, OR (II) ANY VIRUS OR OTHER DISABLING FEATURE OR ACTION AFFECTING YOUR USE OR ACCESS TO THE SERVICE, OR (III) ANY UNAUTHORIZED USE OF YOUR ACCOUNT.IN THE EVENT THAT ANY WARRANTY DISCLAIMER OR DISCLAIMER OF LIABILITY SHALL BE DEEMED TO BE UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF dESCO, LLC AND ITS AFFILIATED PARTIES FOR ALL CLAIMS SHALL NOT EXCEED THE AGGREGATE AMOUNT YOU HAVE PAID TO dESCO, LLC IN THE NINETY DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
IN THE EVENT APPLICABLE LAW IN YOUR JURISDICTION DOES NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSIION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SOME OF THE ABOVE NOTED LIMITATIONS MAY NOT APPLY TO YOU.
- Copyright Agent. We respect the intellectual property rights of you and others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with written notice with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the copyright interest owner; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where the material that you claim is infringing is located on the Service; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Our Copyright Agent for Notice of claims of copyright infringement only is:By mail:
806 Linden Avenue, Suite 300, Rochester, NY 14625
By phone: 888.229.4100
By e-mail: Paul@coolfront.com
- Successors; Assignment. The Terms and Conditions shall inure to the benefit of our successors and assigns. dESCO, LLC may assign or delegate the Terms and Conditions, in whole or in part, to a third part at any time without your consent. Your Registration and the license granted to you hereunder (and your right to use the Service) are not individually or collectively assignable or transferable in any case, and only may be used by you.
- Choice of Law and Venue. The Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New York, without reference to any conflicts of law principles. Any cause of action by you with respect to the Service (and/or any information, products or services related thereto) or otherwise in connection with the Terms and Conditions (i) must be instituted within one (1) year after the cause of action arose or be forever waived and barred, (ii) shall be subject to the limitations set forth in these Terms and Conditions, and (iii) shall be brought solely in a State or Federal court located in Monroe County, State of New York. You expressly submit to the exclusive jurisdiction of such courts and consent to extraterritorial service of process, and waiver any objection of forum non conveniens.
- Remedies. In addition to any other remedies set forth in these Terms and Conditions or otherwise available to dESCO, LLC at law or in equity, all of which shall be cumulative, Profit Strategies shall have to right to obtain (without need to post a bond) a temporary or permanent injunction or other equitable relief to prevent a breach or threatened breach of these Terms and Conditions.
- Notices to Profit Strategies, Inc. Unless otherwise expressly set forth herein, you may notify us by email at email@example.com, or by postal mail at 806 Linden Avenue, Suite 300, Rochester, NY 14625, Attn: Support.
- Force Majeure. PdESCO, LLC shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of dESCO, LLC, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond dESCO, LLC’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
- Miscellaneous. The Terms and Conditions constitute the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings, with respect to the Service, the content and services provided by or through the Service, and the subject matter of these Terms and Conditions. The language in this Terms and Conditions shall be interpreted as in accordance with its fair meaning and not strictly for or against us or you.
Terms and Conditions and pricing can be modified without notice. As such, please check this page for the latest Terms and Conditions.