Welcome to Firmatek, a leading provider of data analytics drone solutions and mapping services to clients in the mining, solid waste, and other industries. We provide you with the most accurate measurements available and work hand in hand with you to explain the data and the numbers. The biggest names in the mining and solid waste industries trust Firmatek with their important operation calculations, from inventory to remaining airspace.

1. Scope of Terms

These Terms of Use (“Terms”) define your legal rights, so please read them carefully. By accessing or using this website (the “Site”) provided by Firmatek LLC or our subsidiaries or other affiliates (collectively, “Firmatek,” “we,” “us” or “our”) you acknowledge that you have read, understood, and agreed to be bound by these Terms and all of the terms incorporated herein by reference. If you do not agree to these Terms, you may not access or use the Site or order, receive, or use the services (“Services”) or products (“Equipment”) made available through the Site.

These Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect to any other products, services or otherwise. If you are using the Site on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.

Firmatek reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Site or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Site or order, receive or use Services or Equipment, you confirm your acceptance of the revised Terms. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Site or order, receive or use the Services or Equipment. If you do not agree to the revised Terms, you may not access or use the Site or order, receive or use any Services or Equipment.

2. License Rights

We grant you a personal, limited, non-transferable non-exclusive, license to access and use the Site. We reserve the right, in our sole discretion and without notice to you, to revise the Equipment and Services available on the Site and to change, suspend or discontinue any aspect of the Site and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. Your continued use of the Site will constitute your acceptance of any such changes.

In no event shall your use of the Site include any attempts to copy, reproduce, change, reverse-engineer, de-compile, disassemble, translate, make derivative works, enhancements, extensions or add-ons, modify, adapt or otherwise alter any portion of the Site. Any attempt to do so is a violation of the rights of Firmatek and its licensors. If you breach this restriction, you may be subject to prosecution and damages. These terms will govern any upgrades provided by us that may replace and/or supplement the application, unless such upgrades are accompanied by a separate license in which case the terms of that license will govern.

3. Privacy Policy

Please refer to our Privacy Policy for information about how we collect, use and disclose information about you.

4. Eligibility

The Site is not targeted toward or intended for use by anyone under the age of 18. By using the Site, you (“Customer”) represent and warrant that you (a) are 18 years of age or older, (b) have not been previously suspended or removed from the Site, or engaged in any activity that could result in suspension or removal from the Site, (d) do not have more than one Firmatek account, and (d) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.

We reserve the right to revoke your ability to access the Site for any reason at any time including as a result of a violation of these Terms or the Privacy Policy, without notice. As part of our order processing procedures, we may screen received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an Order due to suspected fraud or unauthorized or illegal activity. If we suspect fraudulent, unauthorized or illegal activity, we may reject your Order or we may contact you at the phone number or email address you provided to confirm your Order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.

 

5. Registration, Passwords, and Communication Preferences

You may browse our Site and view our content without registering, but as a condition to obtaining Services and Equipment on the Site, you will be required to provide specific information and register for a data portal. All information about you must be truthful, accurate and complete, and you may not use any aliases or other means to mask your true identity, or a name or trademark that is subject to any rights of another person or entity without receiving appropriate authorization. Failure to do so constitutes a breach of these Terms, which may result in immediate termination of your account. You agree to maintain and promptly update from time to time as necessary your account information.

Any access codes or passwords provided should be safeguarded at all times. You are responsible for the security of your access codes and passwords and will be solely liable for any use or unauthorized use under such access codes or passwords.

By registering with this Site, you also consent to receive electronic communications from Firmatek (e.g., via email, text messages or by posting notices to the Site). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us.

We may also send you promotional communications via email or text messaging, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional messages at any time by following the unsubscribe instructions provided therein.

6. Drone Equipment

Subject to these Terms, Firmatek will provide the drone and related accessories (“Equipment”) set forth on Exhibit A. Pricing terms for Equipment and Service packages are set forth in Exhibit B. Firmatek authorizes You to use the Equipment solely to conduct aerial surveys and inspections on property owned by you and to provide data obtained from aerial surveys and inspection for analysis solely by Firmatek. You agree not to make any modifications or alterations to the Equipment in any form.

You assume full responsibility and liability for use and operation of the Equipment.  Without limitation, you agree to (a) comply with all laws, rules and regulations pertaining to the Equipment, including those pertaining to the operation of unmanned aerial vehicles in the jurisdiction where the Equipment is used and any operator licensure or certification requirements and applicable airspace regulations, and (b) operate and use the Equipment in a safe, careful, proper and non-reckless manner. You, and not Firmatek, are the operator of the Equipment and are liable for all claims arising from use thereof.  You are not permitted to resell or lease the Equipment for any purpose.

The Equipment must be operated by a trained, qualified and experienced operator (“Operator”), at all times. You assume full responsibility and liability for ensuring that an Operator has obtained all government approvals, whether at the federal, state, or local levels, necessary to operate the Equipment.  Prior to any flight of the Equipment, you must conduct a pre-flight inspection and determine that the Equipment is in a condition for safe flight.  You agree to, and will cause each Operator and your employees, agents and representatives using the Equipment to, read and understand the Equipment manuals, instructions and other similar documentation or requirements (“Documentation”) and all applicable laws, rules and regulations prior to using the Equipment and to follow all Documentation for the safety of persons and property (including bystanders and their property) who may be in the vicinity of or come into contact with the Equipment.

IMPROPER OPERATION OF THE EQUIPMENT CAN CAUSE SERIOUS PERSONAL INJURY AND PROPERTY DAMAGE. YOU ASSUME FULL RESPONSIBILITY FOR ANY LIABILITY ARISING FROM OF THE USE OF THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, DEATH OR PROPERTY DAMAGE THAT MAY RESULT, WHATEVER THE CAUSE.

You are solely responsible for the conduct of your employees, agents and representatives, and the conduct of those operating the Equipment, as well as the consequences thereof, and agree that no Firmatek Party (defined below) is responsible in any way for the operation or use of the Equipment or the consequences that may result from the operation thereof. You agree that the use of the Equipment will be solely for your internal business purposes.

In using the Equipment provided by us, you represent and warrant to Firmatek as follows:

• You have obtained or will obtain all governmental approvals, including at the federal, state, and local level, necessary to operate the Equipment or have arranged for a qualified Operator who has obtained all governmental approvals, including at the federal, state, and local level, necessary to operate the Equipment.

• You will use the Equipment solely for a lawful and proper purpose and in accordance with these Terms.

• You own, or have permission to operate the Equipment from all property over which the Equipment will be operated.

7. Drone/Service Packages

 

Firmatek offers Equipment and a stockpile measurement data solution service via the Monthly Stockpile Packages more specifically described in Exhibit B attached hereto.  The Monthly Stockpile Packages includes monthly stockpile measurement services for twelve (12) months or twenty-four (24) with Equipment included. Monthly stockpile measurements not used in one month may not be carried over to subsequent months.

Other Service and Equipment options are also available as specified in Exhibit B.

8. Cancellation Policy

You may cancel your Monthly Stockpile Package subscription at any time, by logging into your account or emailing us at cancel@firmatek.com and following the instructions, if any, we provide you in response to your cancellation request.

We reserve the right to revoke your Monthly Stockpile Package at any time as a result of a violation of these Terms or the Privacy Policy.

In the event of any early termination of your Monthly Stockpile Package, and you fail to return all Equipment within thirty (30) days, you will be charged fee in the amount of Two Thousand Dollars ($2,000).

9. Payment and Billing Information

As consideration for Firmatek’s provision of Services and Equipment, you will pay Firmatek the fees set forth in Exhibits A and B. All fees are quoted and payments made under this Agreement will be in U.S. dollars. All fees are processed immediately during checkout in accordance with the details displayed to you during the checkout process.

You will pay any applicable sales, use, personal property or similar taxes, tariffs or governmental charges relating to the Equipment, exclusive of taxes on Firmatek’s net income and Firmatek’s corporate franchise taxes.

By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Firmatek account, you can do so at any time by logging into your account and editing your payment information.

If any fee is not paid in a timely manner, or we are unable to process your transaction using the payment information provided, we reserve the right to suspend or revoke access to your account. Any past due amounts owed by you will bear interest at the rate of 1% per month, or the maximum amount permitted by law, whichever is lower. You will reimburse Firmatek for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past due amounts owed by you.

We may add new fees and charges from time to time. If you want to use a different payment card or if there is a change in payment card validity or expiration date, you may edit your information by accessing your account page. It is your responsibility to keep your contact information and payment information current and updated.

We utilize a designated third-party payment platform to process payment card transactions for your subscriptions and purchase. We are not liable for any loss or damage from errant or invalid transactions processed through the third-party payment platform.

You acknowledge that the amount billed may vary due to promotional offers, changes to your Monthly Stockpile Package or changes in applicable taxes or other charges, and you authorize us (or our third-party payment processor) to charge your payment method for the corresponding amount.

We reserve the right to refuse or cancel any Orders placed for Equipment or Services listed at an incorrect price, or containing any other incorrect information or typographical errors, whether or not the Order has been confirmed and whether or not your credit card has been charged. If your credit card has already been charged for the purchase and your Order is canceled, we will promptly issue a credit to your credit card account in the amount of the charge.

10. Equipment Availability

All of our Equipment and Services are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Equipment and Services and to substitute Equipment and Services without prior notice.

11. Shipping and Handling

The Equipment will be shipped to you within a reasonable time (typically within 30 days) after placement of your Order on this Site. All deliveries of Equipment under these Terms are F.O.B. destination. The Equipment will be shipped using a reliable courier service with full insurance for the replacement value of the Equipment.

You agree to pay the Equipment shipping and handling charges insurance, import duties, customs, returns, non-delivery, and other similar costs, shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide advance notice of the charges applicable to you before you make your purchase. Custom shipping methods and insurance options may be available upon request.

All Equipment provided is made pursuant to a shipment contract. This means that title to and the risk of loss of such Equipment passes to you upon our delivery of the Equipment to the

third – party courier.

In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date.

12. Inspection

,

You are responsible for inspecting all Equipment you receive from us for any damage or other issues upon delivery. All Equipment returned to us because of non-deliverable issues will be credited back to you minus the actual cost of shipping and, in certain cases, a handling fee.

13. Returns and Refunds

If you receive damaged or defective Equipment, please contact us at support@firmatek.com within seven (7) days of the date you received the Equipment and we will replace the damaged or defective Equipment at our expense. We may require photographic documentation of the damages before we provide you a replacement.

If your Equipment does not arrive within seven (7) days of the date you were scheduled to receive it, please contact us at support@firmatek.com and we will either replace the Equipment at our expense or, depending on the circumstances, provide you a full or partial credit or refund of the leave price for that Equipment. However, if the missing Equipment is due to an incorrect shipping address entered by you at checkout, no replacement will be sent.

If your Monthly Stockpile Package is terminated or expires, you must return the Equipment to 9360 Corporate Dr., Suite 103, Selma, Texas 78154 within 30 days of cancelation. Failure to return the equipment within thirty (30) days of cancelation will result in a fee of Two Thousand Dollars ($2,000).

After we receive your returned Equipment, we will issue you a refund for the pro-rata price you paid for the Equipment and Services (less any applicable shipping and handling charges). If you do not comply with the terms of this section, you will be ineligible to receive a refund.

14. Use of Site

We specifically prohibit any use of the Site for any of the following purposes:

• Posting, communicating or transmitting any material that infringes on any intellectual property, publicity or privacy right of another person or entity;
• Posting any information which is untrue, inaccurate or not your own;
• Engaging in conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law or regulation;
• Attempting to interfere in any way with Firmatek’s network security, or attempting to use the Site’ service to gain unauthorized access to any other computer system;
• Using or attempting to use another user’s account without authorization from such user and Firmatek;
• Using the Site in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Site or that could damage, disable, overburden or impair the functioning of the Site in any manner;
• Reverse engineering any aspect of the Site or doing anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any content, area or code of the Site;
• Attempting to circumvent any content-filtering techniques we employ or attempting to access any feature or area of the Site that you are not authorized to access;
• Developing any third party applications that interact with contributed content or the Site without our prior written consent;
• Using any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Site, extract data or otherwise interfere with or modify the rendering of Site pages or functionality;
• Using the Site for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms;
• Expressing or implying that any statements you make are endorsed by us, without our specific prior written consent;
• Downloading lists of other users of the Site and using their information for your own business reasons;
• “Framing” or “mirroring” any part of the Site, or use meta tags or code or other devices containing any reference to us or the Site in order to direct any person to any other websites for any purpose;
• Posting or transmitting, or causing to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any user;
• Creating or sending unsolicited messages or other electronic communications;
• Submitting stories or comments linking to affiliate programs, multi-level marketing schemes, or websites/blogs repurposing existing stories (source hops); or
• Intentionally or unintentionally violate any applicable local, state, national or international law.

15. Proprietary Rights

 

Firmatek, its suppliers or licensors retain sole and exclusive ownership of all right, title and interest in and to the Site, the Equipment and Services and any Data provided by Firmatek, including all intellectual property rights therein and thereto. These rights include, but are not limited to, database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in or on the Equipment, Services or Site are the property of their respective owners. You may not remove or alter any trademark, trade names, service mark, product names, logo, copyright or other proprietary notices, legends, symbols or labels featured on the Equipment or Site.  All rights not expressly granted in this Agreement are reserved by Firmatek.

You will physically identify the Equipment and any related materials as owned by us. You will not transfer, sell, assign, sublicense, pledge, or otherwise dispose of, encumber, or suffer a lien or encumbrance upon or against the Equipment.  You agree to return the Equipment to us at the expiration or termination of your Monthly Stockpile Package.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services, Equipment or the Site (“Submissions”), provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, in these Submissions, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

You acknowledge and agree that that your use of the Equipment, Services or the Site does not grant you any ownership interest in such Equipment, Services or Site or any exclusive rights to their use, and that these Terms do not grant you any claims to patents, trademarks or other rights pertaining to the Equipment, Services or Site. You furthermore agree and acknowledge that the Equipment, Services and Site, and the material accompanying them are proprietary, confidential, and trade secrets of Firmatek and that you will undertake all necessary steps and efforts to prevent unlawful or illegal distribution of such proprietary, confidential and trade secret information.

16. Data Use and Ownership

 

You shall use any data and analysis provided by Firmatek (“Data”) solely for internal business purposes (“Purpose”). Subject to these Terms, Firmatek grants you a non-exclusive, royalty-free, non-transferable, non-sublicensable right, under its copyrights in and to the Data, to use the Data during the term of Monthly Stockpile Package subscription solely for the Purpose. If you desire to use Data for any purpose other than the Purpose, then you must obtain the prior written consent of Firmatek, which consent Firmatek may grant or withhold in its sole discretion.

The Data is confidential and proprietary information of Firmatek, subject to the confidentiality obligations set forth in these Terms. You shall not license, transfer, sell or lease the Data to any third party.

You agree that you shall not apply or file for any intellectual property protection (including without limitation, patent protection), in any jurisdiction, incorporating any of the Data, without Firmatek’s prior written consent, which consent Firmatek may grant or withhold in its sole discretion.

You shall restrict access and use of the Data to your employees engaged in performing under these Terms in connection with the Purpose.  You shall ensure that such employees who will access or use the Data are informed of and bound by these Terms prior to their performance of evaluation and/or other activities in connection with the Purpose.

You agree to provide to Firmatek a report regarding the information, conclusions and other results that arise or result from your use of the Data (the “Results”). You grant to Firmatek a non-exclusive, irrevocable, transferrable, sublicenseable, worldwide, royalty-free license, to incorporate or otherwise use the Results in the design of Firmatek products and services and to design, debug, display, perform, prepare derivative works, copy, make, have made, use, sell, and otherwise dispose of and support Firmatek’s and its sublicensees’ products, services and documentation embodying the Results.

You shall use appropriate safeguards to prevent use or disclosure of the Data other than as expressly permitted under these Terms.  You agree to report to Firmatek, in writing, any use and/or disclosure of the Data that is not permitted or required by these Terms immediately after becoming aware of such use and/or disclosure. You shall comply with all applicable laws and regulations relating to the use, storage and disclosure of the Data.

17. Third Party Content

We may display content, advertisements and promotions from third parties through the Site or in shipments with Equipment (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that Firmatek is not responsible or liable in any manner for such interactions or Third Party Content.

Links to third party websites are not endorsements or referrals of any products, services or information contained in such websites.  Information provided and opinions expressed by others do not necessarily represent our opinions. We expressly disclaim any and all liability resulting from reliance on such information or opinions.  We shall have the right, at our sole discretion, to remove links and images attached to such links, if such links are flagged by users as offensive

18. Disclaimers

You assume all responsibility and risk with respect to your use of the Equipment, Services, Data and the Site. YOU ACKNOWLEDGE AND AGREE THAT THE EQUIPMENT MAY NOT BE NEW.  ALL CONTENT, EQUIPMENT, SERVICES, DATA AND OTHER INFORMATION ON OR ACCESSIBLE FROM OR THROUGH THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY OR ACCURACY. SPECIFICALLY, BUT WITHOUT LIMITATION, FIRMATEK DOES NOT WARRANT THAT: (1) DATA OR INFORMATION PROVIDED IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

We reserve the right to change any and all content and to modify, suspend or stop providing access to the Site (or any features or functionality of the Site) and the Equipment and Service at any time without notice and without obligation or liability to you. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.

No oral information or advice provided by us, our resellers, agents or employees shall create a warranty or in any way.

19. Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Firmatek, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Firmatek Parties”), from and against all actual or alleged Firmatek Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Site, Services, Equipment or Data, (b) any contributed content you create, post, share or store on or through the Site or our pages or feeds on third party social media platforms, (c) any Submissions you provide, (d) your violation of these Terms, (e) your violation of the rights of another, and (f) any third party’s use or misuse of the Site or Equipment provided to you. You agree to promptly notify Firmatek of any third party Claims and cooperate with the Firmatek Parties in defending such Claims. You further agree that the Firmatek Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Firmatek.

20. Limitation of Liability

IN NO EVENT WILL ANY FIRMATEK PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS OF ANY KIND, IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EQUIPMENT, DATA OR THE SITE,  OR THESE TERMS (INCLUDING LOSS OF PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH FIRMATEK PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL ANY FIRMATEK PARTY BE LIABLE FOR PERSONAL INJURY, ANY DAMAGE TO PROPERTY, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY.

IN NO EVENT SHALL THE TOTAL LIABILITY OF FIRMATEK AND THE OTHER FIRMATEK

PARTIES (JOINTLY) FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE EQUIPMENT, SERVICES, DATA OR THE SITE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT YOU PAID TO FIRMATEK IN CONNECTION WITH THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

  

21. InternationalUse

We control and operate the Site from the United States. We make no representation that materials on the Site are appropriate or available for use outside the United States. If you choose to access this Site from outside the United States, you do so at your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

22. DMCA, Copyright and Other Complaints

We promote respect for the Intellectual Property Rights of others in all of Our business endeavors and strictly prohibit users from uploading infringing content or messages to the Site.  We may, in our sole discretion, remove content or messages that appears to infringe on the Intellectual Property Rights of others. It is our policy to respond to and investigate claims of copyright and other Intellectual Property Rights infringement.  We have a policy of terminating the access of users who are repeat infringers in appropriate circumstances.

You may notify Us of alleged copyright infringement in accordance with the Digital Millennium Copyright Act (the “DMCA”). We will respond expeditiously to notices of alleged infringement sent pursuant to the DMCA.

In order to notify Us of a copyright infringement claim pursuant to the DMCA, you must include:

• a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works;
• a description of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit Us to locate the material, including a URL address;
• Your address, telephone number, and, email address;
• a statement by You that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• a statement made under penalty of perjury by You that the information in the notification is accurate, and that You are authorized to act on behalf of the owner of the copyright involved.

The notice described above should be sent to us via email using the address: info@firmatek.com.

Please note that in order to facilitate resolution of the dispute, we may provide your contact information to the user or entity that posted the content or message that you are reporting; or in the event that you are the alleged infringer and provide a counter-notice, to the user or entity that filed the original claim.  Please also note that you may be liable for damages (including costs and attorneys’ fees) if you knowingly and materially misrepresent that material or an activity is infringing your copyright.

 

23. Term and Termination

The term of this Agreement is as set forth in the applicable Order or Exhibit. Either party may terminate this Agreement at any time, upon written notice, if the other party materially breaches any of its obligations under these Terns and such breach is not remedied within ten (10) days after written notice of such breach by the other party.

Upon the expiration or earlier termination of your Monthly Stockpile Package, you will return, within thirty (30) days after such expiration or earlier termination, the Equipment to us at your expense. Failure to return the Equipment will subject you to a fee as set forth in Section 8. You will ship the Equipment using a reliable courier service with full insurance for the replacement value of the Equipment. The Equipment will be returned in as good a condition as when provided to you, ordinary wear and tear excepted.

Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Site and to order, receive and use the  Services, Equipment and Data, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.

24. Audit Rights

You agree that we may audit your use of the Services, Equipment, Data and this Site for compliance with these Terms at any time. In the event that such audit reveals any use by you other than in full compliance with these Terms, we shall have the right to immediately cancel your account, and you shall reimburse us for all reasonable expenses related to such audit in addition to any other liabilities to which you may be subject as a result of such non-compliance.  You acknowledge that we shall have the right to enforce the provisions of these Terms directly against you and our remedies for any breaches may include, without limitation, damages or injunctive or other equitable remedies.

25. E-mail and Text Communications

 

E-mail communications and text messages sent from us to you are designed to make your experience more efficient and enjoyable. You specifically agree to accept and consent to receiving e-mail communications and text messages initiated from us, which include, without limitation: message notification e-mails, e-mails or text messages informing you about potential available sales and e-mails informing you of promotions we run and emails informing you of new and existing features we provide. Standard text messaging charges applied by your mobile device carrier will apply to text messages we send. If you change your mobile phone service provider, the notification service may be deactivated for your phone number and you may need to re-enroll in the notification service. We reserve the right to cancel the notification service at any time. If you do not wish to receive any of our e-mail communications or text messages, you shall have the opportunity to opt out of receiving communications from us (excluding messages targeted directly at you about matters regarding the state of your account, billing, or your continued use of the Site).

26. Surveys and Feedback

 

We may periodically present you with surveys or solicit your opinion about the Services, Equipment, Data or the Site. You acknowledge that your participation in these types of programs is completely voluntary.  By submitting opinions, suggestions, feedback, images, documents, and/or proposals to us through these surveys, any suggestion or feedback webpages, or through any other communication with you, you acknowledge and agree that: (a) the suggestions or feedback you provide will not contain confidential or proprietary information; (b) we are not under any obligation of confidentiality, express or implied, with respect to the suggestions and feedback you provide; (c) we shall be entitled to use or disclose (or choose not to use or disclose) the suggestions and feedback you provide for any purpose, in any way, in any media worldwide (without disclosing your identity); (d) we may have similar ideas to the suggestions and feedback you provide already under consideration or in development; (e) the suggestions and feedback you provide will automatically become our property without any obligation to you; and (f) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances.

27. Promotions

 

We may periodically feature promotions (“Promotions”) on our Site and you will have the opportunity to participate in such Promotions. By participating, you acknowledge that third parties are responsible for such Promotions and for ensuring that such Promotions comply with all applicable laws, rules, and regulations. We recommend that you carefully review the Official Rules, including any applicable privacy policy, these Terms, and any additional information or links provided in the Official Rules regarding such Promotions. You acknowledge and agree that we are not responsible or liable for the failure of any third party to comply with the rules, terms, conditions, policies, and applicable laws, rules, or regulations governing any Promotion.

WE DO NOT SPONSOR, ADMINISTER OR ENDORSE THE CONTENT OF ANY PROMOTION DISTRIBUTED THROUGH THE SERVICE UNLESS OTHERWISE STATED AND ARE THEREFORE NOT LIABLE OR RESPONSIBLE FOR SUCH PROMOTIONS.

Promotions may require you to provide personal information in order to participate. In the event that you choose to provide personal information, you acknowledge and agree that we may use any such information you provide consistent with these Terms of Use and our Privacy Policy.

You acknowledge and agree that we are not responsible or liable for use or distribution of information you provide in a Promotion. Please see the rules and privacy policy for each Promotion on how it will use your personal information

 

28. Severability

If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

29. Waiver; Remedies

The failure of Firmatek to partially or fully exercise any rights, or the waiver of Firmatek of any breach of these Terms by you shall not prevent a subsequent exercise of such right by Firmatek or be deemed a waiver by Firmatek of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of Firmatek under these Terms and any other applicable agreement between you and Firmatek shall be cumulative, and the exercise of any such right or remedy shall not limit Firmatek’s right to exercise any other right or remedy.

30. Governing Law

By using the Site, Services or Equipment, you agree that these Terms shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, without regards to its conflict of law rules. Each of the parties irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Bexar County, Texas for the purpose of any suit, action, proceeding or judgment relating to or arising out of these Terms of Use and the transactions contemplated hereby.  Each of the parties waives all defenses of lack of personal jurisdiction and forum non conveniens.  In any action or suit to enforce any right or remedy under this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees. You agree that you may only bring claims in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

 

31. Survival

 

Those provisions in these Terms that by their nature are intended to survive termination or expiration of this Agreement shall so survive,

32. Miscellaneous

 

These Terms constitute the entire agreement between you and Firmatek relating to your access to and use of the Site and your order, receipt and use of Services, Equipment or Data. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Firmatek. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. No agency, partnership, joint venture, or employment relationship is created between us as a result of these Terms and you do not have any authority of any kind to bind us in any respect whatsoever.

Questions: Should you have any questions regarding these Terms you may contact us at info@firmatek.com.