Lobster Marketing Group Terms
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PestRoutes Terms of Service
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 and software (the “Services”) is subject to the terms and conditions below (these “TOS”).
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 “Customer”).
We reserve the right, without advance notice, to modify these TOS. If you do not agree to abide by these (or later versions of our) TOS, please do not use or access (or continue to use or 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 subject to a PestRoutes’ termination fee.
Our Services are not directed to children younger than 13. 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. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, OBLIGATIONS AND REMEDIES, AND ALSO INCLUDE CERTAIN LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
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 an account. Customers will be solely responsible and liable for any activity that occurs under your Customer’s Account and username(s). Customer is responsible for keeping their passwords secure.
As part of your subscription to the PestRoutes Services, You may select to purchase access to the [Sentricon Module name] (the “Sentricon Module”). The Sentricon Module is an “Integrated Service” under the PestRoutes Terms of Service, and the following terms will apply to your use of the Sentricon Module, in addition to the terms set forth in the Terms of Service. 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 Dow Agrosciences, its affiliates and agents (collectively “Dow”), 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 provide by Dow. Dow is not a party to this agreement, and makes no representations or warranties regarding the Sentricon Module or the use thereof.
“Sentricon,®” “Sentricon Termite Elimination System,” “Dow AgroSciences” and the “Corteva” Trademarks and Logo are the property of Dow AgroSciences. The Dow Chemical Company or E. I. du Pont de Nemours and Company and may not be used without authorization.
Our Service(s) may use, or make available to You, services that are developed, provided and maintained by third parties (“Integrated Services”). These services are integrated into some of the Service(s) and are provided to You as an option that You may enable and use as a part of some of the Service(s). They are governed by these TOS (in addition to any third party terms of service or Additional Terms (as defined below)) and include programmable SMS, programmable voice, mapping services, snail mail, and route optimization.
If You use the customer communication services (programmable SMS, email, programmable voice, snail mail, etc.) provided through PestRoutes, You understand and agree that (a) You are solely responsible for Your operation of these services in compliance with all applicable laws in all jurisdictions governing use of the Service(s) by You, Your Affiliates, End Users, including but not limited to spam laws, telephone recording, and wiretapping laws, and (b) You will defend, hold harmless and indemnify Us from and against any third party claim arising from any of the foregoing. We may disable the communication tools provided to You if Your 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, You are consenting, on behalf of You and Your End Users to the Processing of Your Data (as generated by or necessary for the provision or operation of the phone service) by the third-party service provider We utilize to provide the communication services. You agree that you 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 you represent and warrant to PestRoutes that you have obtained such consent.
Access to the Service(s)
You are responsible for procuring and maintaining the network connections that connect You to the Service(s). Your access to and use of the Service(s) may require You to use or maintain specific browser software, security certifications and other procedures that supports protocols used by the Service(s).
You may not be able to access or use the Service(s) (a) during planned downtime for upgrades and maintenance to the Service(s) (of which We will use commercially reasonable efforts to notify You in advance through Our Service(s)) (“Planned Downtime”), 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 on one or more occasions. If PestRoutes makes a change to the Services it deems material (as determined in PestRoutes’ sole discretion), PestRoutes will inform Customer by alerting Customer via the Admin Console or sending notice to the Notification Email Address (provided that Customer has subscribed with PestRoutes to be informed about such change) at least fourteen (14) days before the changes are to take effect. If the change constitutes a material adverse change in the Services, Customer may notify PestRoutes by Written Notice, (which, to be effective, must be received by PestRoutes at least 14 days in advance of the effective date of the change) of Customer’s request to terminate the Service Agreement based upon Customer’s objection to the change, which such cancellation shall be effective prior to or on the date of the change. Customer and End Users are encouraged to review any updates to the Services.
Modifications to these TOS and Additional Terms
PestRoutes is constantly updating 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 agreement or policy at the location of the previously applicable 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 Customer by either sending an email to the Notification Email Address or alerting Customer 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 Customer and Customer does not agree to the change, Customer must notify PestRoutes by Written Notice (which, to be effective, must be received by PestRoutes at least 14 days in advance of the effective date of the change) of Customer’s request to terminate the Service Agreement based upon Customer’s objection to the change, which such cancellation shall be effective prior to or on the date of the change. 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, Customer acknowledges and agrees that Customer 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
Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Accounts. Customer 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. Customer agrees that PestRoutes’ responsibilities do not extend to the internal management or administration of the Services for Customer and that PestRoutes is merely a data-processor.
End User Consent
Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users. Customer will obtain and maintain all required consents required by law, if any, from End Users to allow: (a) Customer’s access, monitoring, use and disclosure of this data and PestRoutes providing Customer with the ability to do so and (b) PestRoutes to provide and monitor the usage of the Services, which Customer acknowledges and agrees shall not be deemed a breach of PestRoutes’ obligations with respect to Customer Data under these TOS.
Customer will use commercially reasonable efforts to prevent unauthorized use of the Services and to terminate any unauthorized use. Customer 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, Customer 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 Customer Data that is controlled for export under Export Control Laws. Customer 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
Customer is responsible for responding to Third Party Requests. PestRoutes will, to the extent allowed by law and by the terms of the Third Party Request and at Customer’s expense: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact PestRoutes only if it cannot reasonably obtain such information.
Customer agrees that End Users shall comply these TOS, and the Additional Terms, and further acknowledges and agrees that Customer shall be liable for any End User noncompliance.
End User Liability and Access
Customer shall be liable to PestRoutes for (a) Customer’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 Customer’s account, whether such use is authorized or unauthorized. Customer is solely responsible for, and shall take reasonable steps to prevent, unauthorized access to the Services. Customer 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.
Credit Card Orders
Fees for credit card orders are due immediately upon order placement. PestRoutes will bill the credit card provided via the Service Agreement for all applicable Fees when due. If credit card authorizations or charge attempts are declined, PestRoutes will notify Customer and if Customer fails to promptly clear such charges, PestRoutes may immediately disable or cancel the Services in its sole discretion.
Fees for orders where PestRoutes issues an invoice are due upon Customer’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. Customer 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.
Customer is responsible for any Taxes and Customer 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 Customer unless Customer provides PestRoutes with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to PestRoutes, Customer must provide PestRoutes with an official tax receipt or other appropriate documentation to support such payments.
Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer’s or End Users’ use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to PestRoutes.
If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to PestRoutes’ technical support team.
Confidential Information; Data Security
Except as otherwise provided herein, You expressly undertake to retain in confidence all data, information and know-how transmitted or disclosed by PestRoutes that the disclosing party 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, You 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, Customer owns all Intellectual Property Rights in Customer Data, and PestRoutes owns all Intellectual Property Rights in the Services.
You hereby represent and warrant 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, you grant 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 Your use of the Service(s) that is non-personally identifiable with respect to You (“Aggregated Anonymous Data”), and We may use the Aggregated Anonymous Data to improve, support, advertise, and operate the Service(s). For clarity, You are not identified as the source of any Aggregated Anonymous Data and no Personal Data is collected as a part of Aggregate Anonymous Data.
You agree that we may use any feedback, comments, or suggestions You provide with respect to the Services without any obligation to You and You hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such feedback as we deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.
PestRoutes may include Customer’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 Customer. PestRoutes may also verbally reference Customer 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 which may not always be withdrawn. 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 form 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 Customer or End User believes that anything on PestRoutes’ website or Services infringes any Intellectual Property Right that Customer 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 Customer Support
Full address to which notification should be sent: 4500 W 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 Customer or End User who infringes any Intellectual Property Rights (whether PestRoutes’ or others), regardless of whether or not there is repeat infringement.
Your subscription to the Service(s) will renew automatically for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in the Services Agreement, the rates applicable to Your subscription to the Service(s) for any such subsequent Subscription Term shall be Our standard rates for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences. You acknowledge and agree 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 Subscription Term. This notice of non-renewal will be effective upon the conclusion of the then current Subscription Term.
PestRoutes may revise its rates for the following Subscription Term by providing Customer notice at least thirty (30) days prior to the start of the following Subscription Term.
Suspension, Expiration & Termination
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 required to prevent, mitigate or terminate the Emergency Security Issue.
If Customer 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 Customer with the Services.
Customer 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 Subscription 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 You 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) it determines, in its sole discretion, that Your continued use of the Services could damage its platform, software, ability to offer Services, reputation or brand; (d) if You enter 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 You make a general assignment for the benefit of creditors; or (e) to the extent PestRoutes, in its sole discretion, determines necessary to prevent, mitigate, or terminate an Emergency Security Issue.
Effects of Expiration or Termination
Customer is responsible for maintaining, protecting, and making backups of Customer Data. To the extent permitted by applicable law, PestRoutes will not be liable for any failure to store, or for loss or corruption of, Customer Data. Customer is encouraged to frequently backup and archive Customer Data. PestRoutes shall provide Customer access to, and the ability to export, certain Customer Data following the expiration or termination of an account or of the Services if requested by Customer by notice to PestRoutes within thirty (30) days of the expiration or termination. It is PestRoutes’ standard practice following the same to delete Customer Data by removing pointers to it on PestRoutes’ active servers and overwriting it over time, and Customer acknowledges and agrees that PestRoutes shall not be liable for the same if Customer does not request the data within the timeframe set forth in the preceding sentence. The termination of the Services will 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. Customer agrees that PestRoutes shall not be liable for any damages arising from such expiration or termination.
Representations and Warranties; Indemnification
Additional Representations and Warranties
Customer represents that it has full power and authority to enter into these TOS, and that Customer and its End Users shall comply with all laws and regulations applicable to the use of the Services (including applicable security breach notification laws).
Customer 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) Customer’s use of the Services (including any actions or inactions taken under Customer’s account); (ii) an End User’s use of the Services; (iii) any improper or illegal use of Customer’s account or Admin Account, including improper or illegal use by Customer, an Administrator, an End User, or a third party; (iv) Customer Data, Customer Domain Names, or Customer Brand Features; or (v) any breach or violation of these TOS, the Additional Terms, or applicable law by Customer 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 Customer with prompt notice of the same; provided, however, that any failure to deliver notice promptly will not eliminate or reduce Customer’s indemnification obligations under these TOS. Customer 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, CUSTOMER 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 CUSTOMER 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
CUSTOMER 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 CUSTOMER’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 CUSTOMER TO PESTROUTES DURING THE NINE (9) MONTHS BEFORE THE LAST EVENT THAT GAVE RISE TO CUSTOMER’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 CUSTOMER’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 CUSTOMER’S JURISDICTION (IF ANY) WILL APPLY TO CUSTOMER, 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 Customer under these TOS will be deemed effective upon sending an email to the Notification Email Address or alerting Customer via the Admin Console . Any notice by Customer to PestRoutes under these TOS will be deemed effective upon alerting PestRoutes. 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.
Customer 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 Customer 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. Severability
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 Customer 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 Customer by PestRoutes for the purpose of administering the Customer’s End Users. The use of an Admin Account requires a password, which PestRoutes may provide to Customer.
"Admin Console" means the online tool Customer may use to access management, reporting and certain other administration functions.
"Administrators" mean the Customer-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 Customer Data) or communication.
"Customer Data" means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users, and includes data in electronic form input or collected through the Services by or from Customer or End Users, including without limitation by End Users and other users.
"Customer Domain Names" means the one or more domain names owned by Customer which will be accessing the Services and are specified in the Service Agreement.
"Emergency Security Issue" means (a) Customer’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) Customer’s or an End User’s use of the Services in violation of these TOS, or any Additional Terms.
"End Users" means a PestRoutes-hosted account or data established by and provided to Customer’s End Users by Customer through the Service for the purpose of enabling such End Users to use the Services. The term "End User" also includes Customer’s Administrators. For the purposes of expressing Customer’s liability and obligations with respect to a user, "End User" also includes any company or individual who uses the Services on Customer’s behalf or through Customer’s account or an End User’s Account or passwords, whether authorized or not.
"End User Account" means a PestRoutes-hosted account established by Customer through 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.
"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 Customer to receive email notifications from PestRoutes. Customer may change this email address through the Admin Console.
"Service Agreement" means the written offer by PestRoutes to provide specific services to Customer subject to these TOS. Each Service Order will incorporate these TOS and will contain, without limitation: (i) product and/or service SKUs; (ii) the term of the Services; (iii) the Fees for the Services; (iv) Customer Domain Names and (v) a reference number.
"SDN List" is the US Treasury Department’s List of Specially Designated Nationals.
"Service Pages" mean the web pages displaying the Services.
"Services" has the meaning set forth in the first paragraph of these TOS.
"Subscription Term" means the initial Subscription 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.
Our contact information is as follows:
PestRoutes OpCo, LLC
4500 Eldorado Parkway Suite 3200
McKinney Texas, 75070