Lobster Marketing Group Terms
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PestRoutes Terms of Service
Revision: February 3, 2021
PestRoutes OpCo, LLC (collectively, “PestRoutes” or “we,” “us” or “our”) are pleased to provide you with access to our pest control software solution. Your use of our services, including access to our PestRoutes platform, software and mobile applications (the “Services”) is subject to the terms and conditions below (these “TOS”). Words appearing as defined terms are either defined in their first use or in the Definitions section at the end of this document.
If you will be using the Services on behalf of an organization, you agree to these TOS on behalf of that organization, and you represent and warrant that you have the authority to do so. In such case, “you” and “your” will refer to that organization (the “Company”).
We reserve the right without advance notice to modify these TOS. If you do not agree to abide by these and subsequent versions of our TOS, please do not use, access, or continue to use/access the Services. In the event you do not agree to a modified version of a TOS, you shall have the option to terminate the Service Agreement (see Definitions) subject to a PestRoutes cancellation fee.
Our Services are not directed to children younger than 13 years old. If you are under 13 years old, please do not register to use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 13 years of age or older. PLEASE CAREFULLY REVIEW THESE TOS AS THEY INCLUDE CERTAIN LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, OBLIGATIONS AND REMEDIES.
Services in General
Use of our Services requires a PestRoutes Account. You agree to provide us with complete and accurate information when you register for such Account. Companies will be solely responsible and liable for any activity that occurs under your Company’s Account and username(s). Company is responsible for keeping their passwords secure.
PestRoutes’ platform may contain services that are developed, provided and maintained by a third-party provider (“Integrated Services”). These Integrated Services comprise certain of the PestRoutes Service(s) and are provided to you as an option that may be enabled and used as part of the Service(s). Integrated Services are governed by these TOS (in addition to any third-party terms of service) or Additional Terms (see Definitions).
If you elect to use any of the Integrated Services (such as programmable text/SMS, email, programmable voice, mail, route optimization, et al) provided through PestRoutes, you understand and agree that (a) Company is solely responsible for its operation of these services in compliance with all applicable laws in all jurisdictions governing use of the Service(s) by the Company, its Affiliates, and End Users, including but not limited to spam laws, telephone recording, and wiretapping laws, and (b) Company will defend, hold harmless and indemnify PestRoutes from and against any third-party claim arising from any of the foregoing. PestRoutes may disable the communication tools provided to the Company if the Company’s subscription to the Service(s), account or rights to access and/or use the Service(s) are otherwise suspended or terminated. When enabling communication services, the Company is consenting, on behalf of the Company and its End Users, to the processing of Company Data (as generated by or necessary for the provision or operation of the phone service) by the third-party service provider PestRoutes utilizes to provide the communication services. The Company agrees that it will obtain consent from each End User to receive communications of the nature provided via the Communications Services, to the extent required by law, and by using the Communication Services the Company represents and warrants to PestRoutes that it has obtained such consent.
Access to the Services
The Company is responsible for procuring and maintaining the network connections that connect the Company to the Services. Your access to and use of the Services may require you to use or maintain specific browser software, security certifications and other procedures that support protocols used by the Services.
You may not be able to access or use the Services (a) during planned downtime for upgrades and maintenance to the Services (of which we will use commercially reasonable efforts to notify you in advance (“Planned Downtime”) through the PestRoutes Services “Admin Console”), or (b) during any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond our reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.
We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific Time zone) and other off-peak hours.
Modifications to the Services
PestRoutes shall have the right to change, upgrade, suspend or discontinue any aspect of the Services as we deem necessary. If PestRoutes makes a change to the Services it deems material (as determined in PestRoutes’ sole discretion), PestRoutes will inform the Company via the Admin Console or by emailing a notice to the “Notification Email Address” (provided that the Company has subscribed with PestRoutes to be informed about such change) at least fourteen (14) days before the changes are to take effect. If such a material change is considered adverse by the Company, the Company must notify PestRoutes by “Written Notice” (which, to be effective, must be received by PestRoutes at least seven (7) days in advance of the effective date of the change) of the Company’s request to terminate the Service Agreement based upon Company’s objection to the change. Such cancellation shall be effective prior to or on the date of the change and is subject to cancellation fees defined in the Company’s then-current Service Agreement.
Modifications to these TOS and Additional Terms
PestRoutes continuously updates its Services, which may result in the need to change the legal terms under which the Services are offered. PestRoutes may make modifications to these TOS or any of the Additional Terms on one or more occasions by posting the new Service Agreement or policy at the location of the previously applicable Service Agreement or policy. If PestRoutes makes a material change (as determined solely by PestRoutes in its reasonable discretion) to these TOS or the Additional Terms, PestRoutes will inform you by either sending an email to the Notification Email Address or alerting you via the Admin Console at least fourteen (14) days before the changes are to take effect. If the material change will have a material adverse impact on the Company and the Company does not agree to the change, you must notify PestRoutes by Written Notice (which, to be effective, must be received by PestRoutes at least seven (7) days in advance of the effective date of the change) of your request to terminate the Service Agreement based upon your objection to the change. Such cancellation shall be effective prior to or on the date of the change and is subject to cancellation fees defined in the Company’s then-current Service Agreement. By continuing to access or use the Services once the changes are effective and in the absence of providing PestRoutes with the notice of objection and termination as provided for in this Section, the Company acknowledges and agrees that it is bound by the updated TOS. Any dispute arising prior to a change in terms will be governed by the TOS in place when the dispute arose.
Customer Administration of the Services
You may specify one or more Administrators through the Admin Console who will have the rights to access Admin Accounts. The Company is responsible for: (a) maintaining the confidentiality of the password and Admin Accounts; (b) designating those individuals who are authorized to access the Admin Accounts; and (c) ensuring that all activities that occur in connection with the Admin Accounts comply with the TOS and the Additional Terms, as applicable. The Company agrees that PestRoutes’ responsibilities do not extend to the internal management or administration of the Services for the Company and that PestRoutes is merely a data-processor.
End User Consent
The Company’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users. The Company will obtain and maintain all consents required by law, if any, from End Users to allow: (a) the Company’s access, monitoring, use and disclosure of this data and PestRoutes providing the Company with the ability to do so and (b) PestRoutes to provide and monitor the usage of the Services, which the Company acknowledges and agrees shall not be deemed a breach of PestRoutes’ obligations with respect to the Company Data under these TOS.
The Company will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. The Company will promptly notify PestRoutes of any unauthorized use of, or access to, the Services of which it becomes aware.
Restrictions on Use
Unless PestRoutes specifically agrees in writing, Company will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease, or the functional equivalent thereof, the Services to a third party (unless expressly authorized in these TOS); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for “High Risk Activities”; or (e) use the Services to store or transfer any Company Data that is controlled for export under “Export Control Laws”. Company is solely responsible for any applicable compliance with the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.
Third Party Requests
The Company is responsible for responding to “Third-Party Requests” as documented in the “Definitions” section of these TOS. PestRoutes will, to the extent allowed by law and by the terms of the Third-Party Request and at the Company’s expense: (a) promptly notify the Company of its receipt of a Third-Party Request; (b) comply with the Company’s reasonable requests regarding its efforts to oppose a Third-Party Request; and (c) provide the Company with the information or tools required for the Company to respond to the Third-Party Request. The Company will first seek to obtain the information required to respond to the Third-Party Request on its own and will subsequently contact PestRoutes only if it cannot reasonably obtain such information.
The Company agrees that End Users shall comply with these TOS, and the Additional Terms, and further acknowledges and agrees that the Company shall be liable for any End User noncompliance.
End User Liability and Access
The Company shall be liable to PestRoutes for (a) the Company’s End Users’ compliance with the TOS, Additional Terms, and any applicable terms of the Service Agreement; and (b) any use of the Services through the Company’s account, whether such use is authorized or unauthorized. The Company is solely responsible for and shall take reasonable steps to prevent unauthorized access to the Services. The Company shall notify PestRoutes immediately of any known or suspected unauthorized use of the Services or breach of its security and shall use best efforts to stop said breach.
All payments due are in U.S. dollars unless otherwise indicated on the Service Agreement or invoice.
PestRoutes will bill the payment method provided via the Service Agreement for all applicable Fees when due, including initial fees due upon signing the Service Agreement. The payment method may be a debit or credit card, a direct debit from a bank account, or an offset to merchant settled funds prior to disbursement if your merchant processing is provided as an integrated solution by PestRoutes. If a debit or credit card authorization, or a direct debit from a bank account, is declined, reversed, returned, or charged-back, PestRoutes will notify the Company of the delinquent balance and if the Company fails to promptly clear such charges, PestRoutes may disable or cancel the Services in its sole discretion anytime especially as noted in the Delinquent Payments section below. If your merchant processing is provided as an integrated solution by PestRoutes, PestRoutes shall also have the right to immediately, without prior consent or notice, offset or debit such amounts from merchant funds: (i) held in deposit; (ii) due to you; (iii) held in a reserve; or (iv) available in your bank account(s) or other payment instrument registered with the merchant processing bank or any service providers.
Fees for Services where PestRoutes issues an invoice to be paid by check are due upon the Company’s receipt of the invoice and are considered delinquent thirty (30) days after the date of the applicable invoice.
Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law if less) from the payment due date until paid in full. The Company will be responsible for all reasonable expenses (including attorneys’ fees) incurred by PestRoutes in collecting such delinquent amounts except where such delinquent amounts are due to PestRoutes’ billing inaccuracies. In addition to aforementioned enforcement of late fees, PestRoutes may also suspend Services at any time payment(s) reach a 45 days past due status based on the invoice date. Reactivation of the Company’s PestRoutes Account will only occur after payment in full is received for any open delinquent and current balances.
The Company is responsible for any “Taxes” and Company will pay PestRoutes for the Services without any reduction for Taxes. If PestRoutes is obligated to collect or pay Taxes, the Taxes will be invoiced to the Company unless the Company provides PestRoutes with a valid tax exemption certificate authorized by the appropriate taxing authority. If the Company is required by law to withhold any Taxes from its payments to PestRoutes, the Company must provide PestRoutes with an official tax receipt or other appropriate documentation to support such withholdings/exemptions.
By the Company
The Company will at its own expense respond to questions and complaints from End Users or third parties relating to the Company’s or End Users’ use of the Services. The Company will use commercially reasonable efforts to resolve support issues before escalating them to PestRoutes.
If the Company cannot resolve a support issue consistent with the above, then the Company may escalate the issue to PestRoutes’ technical support team.
Confidential Information; Data Security
Except as otherwise provided herein, the Company expressly undertakes to retain in confidence all data, information and know-how transmitted or disclosed by PestRoutes that PestRoutes has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of these TOS. This provision does not apply to information which (a) is or becomes a part of the public domain through no act or omission of the receiving party; (b) is lawfully in the possession of the receiving party before the disclosure took place; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; and/or (d) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, the Company shall treat the Services and any Intellectual Property Rights therein as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without PestRoutes’ prior written permission. Each party’s obligations under this section shall apply at all times during the Subscription Term and shall survive termination.
Intellectual Property Rights; Publicity; Brand Features
Intellectual Property Rights
Except as expressly set forth herein, these TOS do not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, the Company owns all Intellectual Property Rights in the Company Data, and PestRoutes owns all Intellectual Property Rights in the Services.
The Company hereby represents and warrants to PestRoutes that you own all Content, including but not limited to data, provided to PestRoutes in connection with your use of the Services. By providing such Content to PestRoutes, the Company grants PestRoutes a worldwide, limited, revocable, non-exclusive right to access and use the Content in connection with your use of the Services.
PestRoutes may obtain and aggregate technical and other data about the Company’s use of the Service(s) that is non-personally identifiable with respect to the Company (“Aggregated Anonymous Data”), and PestRoutes may use the Aggregated Anonymous Data to improve, support, advertise, and operate the Service(s). For clarity, the Company is not identified as the source of any Aggregated Anonymous Data and no Personal Data is collected as a part of Aggregate Anonymous Data.
The Company agrees that PestRoutes may use any feedback, comments, or suggestions you provide with respect to the Services without any obligation to the Company and you hereby grant PestRoutes a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such feedback as PestRoutes deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.
PestRoutes may include the Company’s name or Brand Features in a list of PestRoutes’ customers, online or in promotional materials. The issuance of any press release shall be subject to the prior written consent of the Company. PestRoutes may also verbally reference the Company as a customer of the PestRoutes products or services that are the subject of these TOS. This Section is subject to the Brand Features Limitation section below.
End User Publicity
End User alone is responsible for Content he/she publishes. End User assumes all risk associated with End User Content. End User represents that he/she owns or has the necessary permissions to use and publish End User Content.
PestRoutes may use End User Content by reformatting it, summarizing it, displaying it publicly, incorporating it into Ads and other works, creating derivative works from it, promoting and distributing it. As such, End User hereby irrevocably grants PestRoutes world-wide, perpetual, non-exclusive, royalty-free, assignable, sub-licensable, transferable rights to use End User Content for any purpose. End User irrevocably waives against PestRoutes and its customers or users any claims and assertions of moral rights or attribution with respect to End User Content.
PestRoutes and its licensees may publicly display Ads and other information adjacent to or included in End User Accounts. End User is not entitled to any compensation for such Ads. The manner, mode and extent of such advertising are subject to change without specific notice to End User.
Display of Brand Features
Brand Features Limitation
Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to these TOS with notice to the other and a reasonable period to stop the use.
If the Company or End User believes that anything on PestRoutes’ website or Services infringes any Intellectual Property Right that the Company or End User owns or controls, such party can file notification of infringement with PestRoutes’ designated agent via the following contact information:
Name of designated agent: PestRoutes Chief Financial Officer
Full address to which notification should be sent: 4500 Eldorado Pkwy Suite 3200 McKinney, TX 75070
Telephone number of designated agent: (404) 800-7378
For the requirements of proper notification under the Digital Millennium Copyright Act (“DMCA”), please see 17 U.S.C. §512(c) (3). PestRoutes responds expeditiously to notices of claimed infringement.
Termination for Infringement
PestRoutes has (in accordance with the DMCA and other applicable law), adopted a policy to terminate, as appropriate and at PestRoutes’ sole discretion, Service Agreements and accounts deemed to be "repeat infringers.” PestRoutes may also terminate the Service Agreement and account of, or access by, any Company or End User who infringes any Intellectual Property Rights (whether PestRoutes’ or others), regardless of whether or not there is repeat infringement.
Subscription for PestRoutes Account
Pricing Tier (Active Customers)
Price per Month
Pricing Tier (Active Customers)
Price per Month
|≤ 2,000||$199||11,001 - 12,000||$1,199|
|2,001 - 3,000||$299||12,001 - 13,000||$1,299|
|3,001 - 4,000||$399||13,001 - 14,000||$1,399|
|4,001 - 5,000||$499||14,001 - 15,000||$1,499|
|5,001 - 6,000||$599||15,001 - 16,000||$1,599|
|6,001 - 7,000||$699||16,001 - 17,000||$1,699|
|7,001 - 8,000||$799||17,001 - 18,000||$1,799|
|8,001 - 9,000||$899||18,001 - 19,000||$1,899|
|9,001 - 10,000||$999||19,001 - 20,000||$1,999|
|10,001 - 11,000||$1,099||+1,000 Active Customers||+ $100|
Initial Implementation, Data Import and Backup Fees
Implementation and data import fees are quoted within the PestRoutes Service Agreement for the Company. The quoted prices will vary based on size of Company and the incumbent software that will require data conversion as well as any specific work required by PestRoutes for the Company to begin using the Services. When needed, custom forms development or other development work for the Company will be determined and quoted during implementation. A minimum fee of $500 will be charged for data backup when a backup is requested by the Company. Contact firstname.lastname@example.org for more information.
Subscription for Optional Services
“Optional Services” are charged when Company elects to use services in addition to its PestRoutes Account.
Commercial Structures & Trend Reporting
There is an additional fee of $75 per technician per month for Commercial Structures & Trend Reporting when the technician is enabled for Structures in Access Controls. By enabling the Access Control for a user for Structures, the Company agrees to the monthly charge.
California Branch 3 / WDO Module
PestRoutes California Branch 3 / WDO (“CA Branch 3 / WDO”) module is enabled and billed at the office level. To learn more about or activate this module, contact email@example.com.
|Current Company Subscription Price per Month||CA Branch 3 / WDO Price per Month|
|$199-499||$200 per month|
|$599-999||$400 per month|
|>$999||40% of MRR|
API / Webhooks
A token is required to access the APIs and Webhooks. To request a token email, firstname.lastname@example.org. The Company must contact PestRoutes support regarding use of the APIs and Webhooks to determine if there is a charge for access based on the schedule below.
|Item||Permission||Allowed Services||Price per Month|
API: 50 requests per office per day (1,000 rows per request)
Webhooks: not available
Read / Write
API: 3,000 requests per office per day
30% of the PestRoutes current Subscription price
As part of your subscription to the PestRoutes Services, you may select to purchase access to the Sentricon Module (the “Sentricon Module”). The Sentricon Module is an “Integrated Service” under the PestRoutes TOS, and the following terms will apply to your use of the Sentricon Module in addition to the terms set forth in the TOS. You must agree to these additional conditions in order to access the Sentricon Module, and your access or use of the Sentricon Module will be deemed your acceptance hereof.
1. You represent and warrant that you are authorized to use the Sentricon web services portal provided by Corteva Agriscience™ (“Corteva”), its affiliates and agents (collectively “Corteva”), and that you will immediately notify PestRoutes if this authorization expires, is terminated, or revoked. You agree to indemnify and hold PestRoutes harmless from any claims or damages resulting from a breach of the foregoing representation and warranty.
3. You should contact PestRoutes for initial support and customer training in regard to the use of the Sentricon Module and its integration with the Sentricon Web Services portal. PestRoutes will use commercially reasonable efforts to coordinate any additional support or training required to be provided by Corteva. Corteva is not a party to this agreement and makes no representations or warranties regarding the Sentricon Module or the use thereof.
“The Sentricon® system” “Sentricon Termite Elimination System,” “Corteva Agriscience” and the “Corteva” Trademarks and Logo are the property of Corteva Agriscience. Corteva Agriscience may not be used without authorization.
PestRoutes offers Sentricon as an Optional Service. Pricing is at the office level and is based on the total number of active customers with a Sentricon-specific subscription.
The Company agrees to be billed according to the schedule below based on the number of active Sentricon customers.
|Number of Active Sentricon Customers||Price per Month|
|101 - 200||$50|
|201 - 1,000||$100|
|1,001 - 1,999||$200|
|2,000 - 2,999||$300|
SalesRoutes™ mobile application is priced on a per user basis and requires a twelve (12) month subscription term. The price per user per month is $30. A Service Agreement is required to purchase a SalesRoutes subscription.
These Usage options have transactional-based pricing. When the Company uses any of the defined Usage types in the schedule below, the Company agrees to the charges.
|Usage Type||Price per Transaction||Transaction Description|
|Phone Recording Machine Detection||$.01||per call|
|Optimized Routes||$0.20||per Optimized Route generated|
Text/SMS (not MMS)
per SMS sent
per SMS received
per 160-character increment of SMS sent
USPS First Class Mail 8.5” x 11” Black & White
per letter (1-page)
per extra page
per statement tear sheet with return envelope (tear sheet page will not be printed on both sides)
when 6 or more pages (additive to the above rates)
per minute per voice message sent
per minute per voice message received
The Company’s Subscription to the Services will renew automatically for a Renewal Term equivalent in length to the then-expiring Term. Unless otherwise provided for in the Service Agreement, the rates applicable to your Subscription to the Services for any such subsequent Renewal Term shall be PestRoutes’ standard or monthly rates, whichever is applicable based on the Company’s then-current Service Agreement. The Company acknowledges and agrees that unless you terminate your Account, your credit card will be charged automatically at the applicable rates. If either party does not want the Services to renew, then it will provide the other party Written Notice to this effect at least thirty (30) days prior to the end of the then-current Renewal Term. This notice of non-renewal will be effective upon the conclusion of the then-current Renewal Term.
PestRoutes may revise its rates for any upcoming Renewal Term by providing notice to Company at least thirty (30) days prior to the start of any upcoming Renewal Term, unless otherwise stated in the Company’s Service Agreement.
Suspension, Termination & Expiration
Notwithstanding the foregoing, if there is an Emergency Security Issue, then PestRoutes may automatically Suspend the offending use to the extent PestRoutes in its sole judgment determines as required to prevent, mitigate, or terminate the Emergency Security Issue.
If the Company does not meet the criteria for usage or account provisioning as determined by PestRoutes in its reasonable sole discretion or upon PestRoutes’ election for any or no reason, PestRoutes shall have no obligation to provide Company with the Services.
Company agrees that PestRoutes shall not be liable for any damages arising from such suspension.
Except as expressly provided in these TOS, you may only terminate an Initial or Renewal Term pursuant to the Services Agreement.
PestRoutes may terminate your Service Agreement and Suspend the Services (a) where permitted by another provision in this Agreement; (b) if the Company or your End Users breach any provision in this Agreement and such breach is not cured within thirty (30) days of notice, if curable; (c) if it determines, in its sole discretion, that the Company’s continued use of the Services could damage the platform, software, ability to offer Services, reputation or brand; (d) if the Company enters into bankruptcy proceedings (whether voluntarily or involuntarily) or receivership and such proceeding or receivership is not concluded or stayed within sixty (60) days, or if the Company makes a general assignment for the benefit of creditors; or (e) if to the extent PestRoutes, in its sole discretion, determines necessary to prevent, mitigate, or terminate an Emergency Security Issue.
PestRoutes may suspend Services if delinquent payments owed by the Company become 45 days overdue from the invoice date. It is the Company’s sole responsibility to ensure the credit card on file in PestRoutes is accurate and updated so that payments do not reach an aged status. Reactivation of the Company’s PestRoutes Account and all related PestRoutes Services will only occur after payment in full has been received by PestRoutes.
Effects of Expiration or Termination
After expiration or termination the Company is responsible for maintaining, protecting, and making backups of the Company Data. To the extent permitted by applicable law, PestRoutes will not be liable for any failure to store nor for loss/corruption of Company Data. The Company is encouraged to frequently backup and archive Company Data. PestRoutes shall provide the Company access to and the ability to export certain Company Data following the expiration or termination of an account or of the Services if requested by the Company by notice to PestRoutes within thirty (30) days of the expiration or termination. It is PestRoutes’ standard practice to delete Company Data by removing pointers to it on PestRoutes’ active servers and overwriting it over time. The Company acknowledges and agrees that PestRoutes shall not be liable for the Company Data if the Company does not request such within the aforementioned timeframe. The termination of the Services may result in the automatic cancellation of all associated accounts (e.g., End User Accounts, Admin Accounts, etc.). All provisions of these TOS which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. Company agrees that PestRoutes shall not be liable for any damages arising from such expiration or termination.
Representations and Warranties; Indemnification
Additional Representations and Warranties
The Company represents that it has full power and authority to enter into these TOS, and that the Company and its End Users shall comply with all laws and regulations applicable to the use of the Services (including applicable security breach notification laws).
The Company agrees to indemnify, defend, and hold PestRoutes, its affiliates, officers, agents, employees, advertisers, partners, and licensors harmless from and against any and all Claims arising out of or related to any direct or third party claims relating to (i) the Company’s use of the Services (including any actions or inactions taken under the Company’s account); (ii) an End User’s use of the Services; (iii) any improper or illegal use of the Company’s account or Admin Account, including improper or illegal use by Company, an Administrator, an End User, or a third party; (iv) Company Data, Company Domain Names, or Company Brand Features; or (v) any breach or violation of these TOS, the Additional Terms, or applicable law by the Company or an End User.
As used in this Section, “Claims” includes any and all claims, liabilities, damages, losses and expenses (including settlement costs and reasonable attorneys’ fees).
In the event of such a claim, PestRoutes will endeavor to provide the Company with prompt notice of the same; provided, however, that any failure to deliver notice promptly will not eliminate or reduce the Company’s indemnification obligations under these TOS. The Company has full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent; and (b) the indemnified party may join in the defense or assume the exclusive control of the defense with its own counsel at its own expense.
Disclaimers and Limitation of Liability
EXCEPT TO THE EXTENT SET FORTH IN THE SERVICES AGREEMENT, COMPANY ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) PESTROUTES DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (B) PESTROUTES DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT COMPANY DATA WILL REMAIN PRIVATE OR SECURE; (C) PESTROUTES ASSUMES NO RESPONSIBILITY FOR THE USE OF THE SERVICES; (D) PESTROUTES AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE; AND (E) PESTROUTES MAKES NO REPRESENTATION OR WARRANTY THAT PESTROUTES WILL ISSUE UPDATES OR ENHANCEMENTS TO THE SERVICE. THE SERVICE IS NOT FAULT TOLERANT AND IS NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES.
Limitation of Liability
COMPANY AGREES THAT PESTROUTES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OR CORRUPTION OF DATA, LOSS OF REVENUES, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS, PROCUREMENT OF SUBSTITUTE SERVICES, OR INTERRUPTION TO BUSINESS OR WASTED ADMINISTRATIVE TIME. THESE EXCLUSIONS APPLY REGARDLESS OF THE THEORY OF LIABILITY (EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), OR WHETHER RELATED TO COMPANY’S OR END USER’S USE OR INABILITY TO USE THE SERVICES, OR OTHERWISE. THESE EXCLUSIONS APPLY EVEN IF PESTROUTES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT ALLOWED BY LAW, THE MAXIMUM LIABILITY OF PESTROUTES (WHICH INCLUDES, COLLECTIVELY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIES AND LICENSORS) SHALL NOT EXCEED THE GREATER OF: (I) THE FEES PAID OR OWED BY COMPANY TO PESTROUTES DURING THE NINE (9) MONTHS BEFORE THE LAST EVENT THAT GAVE RISE TO COMPANY’S CLAIM OR (II) $100.00. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE CLAIMS ARE CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THIS LIMITATION OF LIABILITY FOR SERVICES IS IN THE AGGREGATE AND NOT PER INCIDENT.
Clarification, Exclusions and Limitations
FOR THE AVOIDANCE OF DOUBT, PESTROUTES’ LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS DISCLAIMERS AND LIMITATION OF LIABILITY SECTION APPLY LIKEWISE TO COMPANY’S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS AND LICENSORS. NOTHING IN THESE TOS (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN COMPANY’S JURISDICTION (IF ANY) WILL APPLY TO COMPANY, AND PESTROUTES’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF THE EXCLUSION OF IMPLIED WARRANTIES IS DISALLOWED, THEN, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE COMMENCEMENT OF THE SUBSCRIPTION TERM.
PLEASE NOTE THAT THIS DISCLAIMERS AND LIMITATION OF LIABILITY SECTION OF DOES NOT APPLY TO END USERS WHO ARE NEW JERSEY RESIDENTS TO THE EXTENT SUCH END USERS ARE “CONSUMERS” AS DEFINED IN N.J. Stat. § 56:12-15.
Any notice by PestRoutes to the Company under these TOS will be deemed effective upon sending an email to the Notification Email Address or alerting the Company via the Admin Console. Any notice by the Company to PestRoutes under these TOS will be deemed effective upon alerting PestRoutes by contacting email@example.com. Notwithstanding the foregoing, a provision expressly requiring Written Notice by either party herein must be delivered to the other party’s Legal Department at its current address, and must be provided by (i) personal delivery, deemed effective upon receipt; (ii) overnight courier, deemed effective upon written or electronic verification of receipt; or (iii) registered or certified mail, deemed effective upon verification of receipt through the U.S.P.S. (the foregoing, constituting “Written Notice”). Any invoices and payments to PestRoutes shall be sent to the attention of PestRoutes Accounting, to be deemed effective in a manner consistent with the Written Notice provisions of the preceding sentence. PestRoutes may update its address or addressee information in a manner consistent with this Section.
PestRoutes may modify this Section on one or more occasions, which such modification will not constitute a material change to these TOS.
The Company may not assign or otherwise transfer its rights or delegate its obligations under these TOS without the prior written consent of PestRoutes, which shall not be unreasonably withheld. If assignment or transfer is approved by PestRoutes, the same may be conditioned on the following: (a) the assignee agrees in writing to be bound by the terms of the then-current TOS; and (b) the assigning party remains liable for obligations incurred under the TOS prior to the assignment. Any other attempt by the Company to transfer or assign not in accordance with this provision is void. For the purposes of this Section a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) is considered an assignment or transfer.
Neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control and without negligence of the parties, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
The failure to require performance of any provision of these TOS shall not affect a party’s right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself.
If any provision of these TOS is found void or unenforceable, it shall be replaced to the extent possible with a provision that comes closest to the meaning of the original provision. The unenforceability of any provision, however, shall not affect the validity of the balance of the TOS, which shall remain valid and enforceable according to its terms.
No Agency; No Third-Party Beneficiaries
The parties are independent contractors, and these TOS do not create an agency, partnership or joint venture. Except as otherwise expressly set forth herein, there are no third-party beneficiaries to these TOS.
Governing Law; Equitable Relief
These TOS are governed by and construed in accordance with the laws of the State of Delaware and the federal U.S. laws applicable therein, excluding its choice of law provisions, and the Company and PestRoutes agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Delaware. Nothing in these TOS will limit either party’s ability to seek equitable relief.
Interpretation of Conflicting Terms
Except as otherwise expressly set forth in these TOS, if there is a conflict between a term in these TOS and the Additional Terms, the foregoing will control in the following order: the Service Agreement, the TOS, the Additional Terms.
"Admin Accounts" means the one or more administrative accounts provided to the Company by PestRoutes for the purpose of administering the Company’s End Users. The use of an Admin Account requires a password, which PestRoutes may provide to the Company.
"Admin Console" means the online tool the Company may use to access management, reporting and certain other administration functions.
"Administrators" mean the Company-designated personnel who administer the Services.
"Ads" means online advertisements displayed by PestRoutes to End Users.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
"Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
"Content" means text, images, photos, audio, video, and all other forms of data (including Company Data) or communication.
"Company Data" means data, including email, provided, generated, transmitted or displayed via the Services by the Company or End Users, and includes data in electronic form input or collected through the Services by or from the Company or End Users, including without limitation by End Users and other users.
"Company Domain Names" means the one or more domain names owned by the Company which will be accessing the Services and are specified in the Service Agreement.
"Emergency Security Issue" means (a) the Company’s or an End User’s use of the Services which could (i) disrupt the Services or other customers’ use of the Services; (ii) negatively impact the PestRoutes network or servers used to provide the Services; or (iii) give rise to liability or negatively impact PestRoutes, as determined by PestRoutes in its sole discretion (b) unauthorized third party access to the Services, (c) any use of the Services that could infringe on or misappropriate the Intellectual Property Rights of any person, or (d) the Company’s or an End User’s use of the Services in violation of these TOS, or any Additional Terms.
"End Users" means the Company’s Administrators and any users that are granted access by the Company’s Administrator. For the purposes of expressing the Company’s liability and obligations with respect to a user, "End User" also includes any company or individual who uses the Services on the Company’s behalf or through the Company’s account or an End User’s Account or passwords, whether authorized or not.
"End User Account" means a PestRoutes Account or data established by and provided to the Company’s End Users by the Company through the Service for the purpose of enabling such End Users to use the Services.
"End User Content" means Content that End Users submit or transmit to, through, or in connection with the End User Account such as reviews, ratings, comments, messages, and other information.
"Export Control Laws" means all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State.
"Fees" means the fees and costs for the Services, as provided for in the Service Agreement for such Services.
"High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
"Initial Term" means the initial term stated in the Service Agreement for the applicable Services.
"Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
"Notification Email Address" means the email address designated by the Company to receive email notifications from PestRoutes. The Company may change this email address through the Admin Console.
“Optional Services” has the meaning set forth in the Pricing Schedule section of these TOS.
“PestRoutes Account” means the software and authorized mobile application or data established by and provided to the Company’s End Users by PestRoutes.
"Renewal Term" means the renewal term stated in the Service Agreement for the applicable Services.
"Service Agreement" means the PestRoutes-generated contract form that becomes effective upon execution by the Company agreeing to initial pricing and these Terms of Service. Each Service Agreement will contain, without limitation: (i) product and/or service; (ii) the term of the Services; (iii) the Fees for the Services; and (iv) the Company’s billing and payment information.
"Service Pages" mean the web pages displaying the Services.
"Services" has the meaning set forth in the first paragraph of these TOS.
“Subscription” means a currently active PestRoutes Account and any “Optional Services”subject to duly executed Service Agreement.
"Subscription Term" means the Initial Term and all Renewal Terms thereof for the applicable Services.
"Suspend" means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
"Taxes" means any duties, customs fees, or taxes (other than PestRoutes’ income tax) associated with the sale of the Services, including any related penalties or interest.
"Third-Party Request" means a request from a third party for records relating to an End User’s use of the Services. Third-Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure of records relating to their own use of the Services.
Our contact information is as follows:
PestRoutes OpCo, LLC
4500 Eldorado Parkway Suite 3200
McKinney Texas, 75070