Last Updated: August 10, 2023
BY CLICKING “I ACCEPT” OR BY ACCESSING OR USING OUR SERVICES OR CREATING AN ACCOUNT, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER SET FORTH HEREIN, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. Eligibility to Use the Services.
To be eligible to use the Services you must meet the following criteria and, by agreeing to these Terms, represent and warrant that you: (a) are 18 years of age or older/of legal age to enter into a binding agreement; (b) you are not located in, under the control of, or a national or resident of any of any country or entity that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and are not listed on any U.S. Government list of prohibited or restricted parties; (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services; (d) will only maintain one Account at any given time; (e) have full power and legal authority to enter into these Terms and in doing so will not violate any other agreement to which you are a party, and will comply with these Terms and applicable law at all times; and (f) agree to use your name and your email address when registering.
If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms. If you are a dealer of Valmont products and services (“Dealer”) and are accessing or using our Services on behalf of a grower, you (i) represent that you are authorized to provide the User Data on behalf of the grower, (ii) represent that the grower also has accepted, or will accept, these Terms prior to accessing or using our Services, and (iii) acknowledge and agree that you are responsible to us for your use of the Services on behalf of the grower and for any violation of these Terms.
2. Additional Terms.
Certain features of the Services may be subject to additional terms and conditions (“Additional Terms”). We may present Additional Terms to you when you activate or use a feature to which Additional Terms apply (either in the form of disclaimers or notices, or a separate document), and your use of any feature constitutes your acceptance of these Additional Terms before using such feature. Unless otherwise stated in the Additional Terms, all Additional Terms are incorporated into these Terms. If you do not agree with the Additional Terms, you will not have access to the feature to which they relate. These Terms and Additional Terms apply equally. If any Additional Term is inconsistent with any provision of these Terms, the Additional Term will prevail only for the feature(s) to which that Additional Term applies.
4. Accounts, Communication Preferences, and Text Messaging Programs.
You may need to register for a user account (“Account”) to access some or all of our Services. It is your responsibility to prevent disclosure of your username and password, and to change your password if you feel that its security has been compromised. You may change your password at any time. We shall not be liable or responsible for any damages that result from your failure to keep your username and/or password secure. You are responsible for all activity in your Account. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account.
As part of activating your Account, you are required to provide us with a valid email address and to update this address if you change your email account. By creating an Account, you also consent to receive electronic communications from Valmont (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., password changes and other transactional information) and marketing communications (e.g., promotional information about our products and services). These communications are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.
When you enroll in a Valmont text messaging program, you will receive confirmation of your enrollment and you give your consent to Valmont (including its affiliates) and its service providers to use any automated (including an automatic dialing system) and non-automated technologies to deliver text messages to the mobile number to which you have directed Valmont to transmit these text messages. You acknowledge this consent is not a condition of purchasing any Services. You represent that you are the owner of the wireless device for which you have authorized enrollment in the Valmont text messaging programs and are responsible for messages sent from the device. You acknowledge that text communications are not secure or encrypted and third parties can sometimes intercept messages or disguise messages as though they were sent by us. You agree that you will not text Valmont or its affiliates any confidential or sensitive information. By continuing to use a Valmont text messaging program, you agree that we will not be liable for any unauthorized access or interception of text communications with us.
Message and data rates may apply from your mobile carrier, as provided in your mobile telephone service rate plan (please contact your mobile carrier for pricing plans), in addition to any applicable roaming charges. By enrolling in a Valmont text messaging program, you agree to pay any such charges. Valmont does not charge for the use of text messaging programs. Message frequency will vary based on the text messaging program and user activity.
You may opt out of, or re-enroll in, a Valmont text messaging program through the applicable App or Service. If you opt out of one Valmont text messaging program, you will remain opted into other Valmont text messaging programs (if applicable) unless you opt out of those programs separately. If you have any questions or need help, please contact Customer Support. Unsolicited text messages sent to Valmont will not be monitored. You agree that you will promptly notify Valmont if your mobile phone number changes. You agree to indemnify Valmont in full for all claims, expenses, and damages related to or caused in whole or in part by your failure to notify Valmont if you change your mobile phone number including, but not limited to, all claims, expenses, and damages related to or arising under the Telephone Consumer Protection Act.
It is your responsibility to determine if your mobile carrier supports text messaging and if your mobile device is capable of receiving text messages. Your receipt of our text messages is subject to the terms and conditions of your agreement(s) with your mobile carrier.
Content is not available on all carriers and carrier participation could change. Participating carriers include the following: AT&T, Verizon Wireless, Sprint, T-Mobile USA, Aio Wireless, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Boost Mobile, Carolina West Wireless, CellCom, Cellular One of East Central IL (ECIT), Cellular One of Northeast Arizona, Cellular One of Northeast Pennsylvania, Chariton Valley Cellular, Cricket, Coral Wireless (Mobi PCS), Cross, C-Spire (CellSouth), Duet IP (Maximum Communications New Core Wireless), Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Google Voice, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Metro PCS, Mosaic (Consolidated or CTC Telecom), MTA Communications, MTPCS (Cellular One Nation), Nex-Tech Wireless, Panhandle Communications, Peoples Wireless, Pine Cellular, Pioneer, RINA, Sagebrush Cellular (Nemont), SI Wireless/Mobile Nation, Simmetry (TMP Corporation), SouthernLinc, SRT Wireless, Thumb Cellular, Union Wireless, United Wireless, U.S. Cellular, Viaero Wireless, Virgin Mobile, and West Central (WCC or 5 Star Wireless). The list of participating carriers may be changed at Valmont’s sole discretion without prior notice. The content is not compatible with all mobile phone models. We will not be liable for any delays in the receipt of any text messages or changes to the participating carriers as delivery is subject to effective transmission from your carrier with active participation at that time. T-Mobile is not liable for delayed or undelivered messages.
Valmont reserves the right to terminate any of the text messaging programs, in whole or in part, at any time without notice. Text messaging programs are provided on an AS IS, AS AVAILABLE basis.
5. Prices, Taxes, and Payment.
You agree to pay the fees specified when you made your purchase through the Services. Prices offered on the Services are quoted in U.S. Dollars. Such prices do not include sales, use, and other taxes (collectively, the “Taxes”) where applicable. We will collect applicable Taxes on services for which we determine we have a duty to collect Taxes. You are responsible for any Taxes that may apply to your order, which will be added to your total price during the checkout process and/or in the invoice you receive from Valmont. All payments are final and non-refundable. If the amount you pay is incorrect, regardless of whether it is an error in a price posted on the Services or otherwise communicated to you, then we reserve the right, at our sole discretion, to cancel your order, notify you through the contact information you provided during the order process, and refund to you the amount that you paid, regardless of how the error occurred.
Valmont allows you to make your purchases using any of the payment methods described below. Please read carefully our policies with respect to payment methods before you place your order. You may pay by credit, debit, or check card. When you provide Valmont with your card information, and authorize the transaction, Valmont’s third-party payment processor will bill your credit card or process the transaction under your debit or check card you provided.
Valmont accepts American Express, MasterCard, and Visa (subject to change without notice). Debit cards and check cards have daily spending limits that may substantially delay the processing of your order. We require the security code of your card for any purchase to protect against the unauthorized use of your card by other persons. You represent and warrant that you have the right and are authorized to use the credit, debit or check card you present to make your purchases and that the billing and related information you provide is accurate and truthful. You authorize the issuer of your selected payment method to pay any amounts described herein without requiring a signed receipt, and you agree that these Terms shall be accepted as authorization to the issuer of the payment method to pay any amounts described herein, without requiring a signed receipt from you. You authorize us to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your payment method until such amounts are paid in full. You agree to provide updated payment information upon request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither Valmont, nor any Valmont agent, will have any liability whatsoever for any insufficient funds or other charges incurred by you as a result of attempts to charge, and/or place holds on, your specified payment method as contemplated by these Terms. If you provide a debit card number instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number. Your authorizations in this section also apply to our payment processors and any other companies who act as billing agents for us. If for any reason you have not authorized charges to be made to your credit, debit or check card, or your credit, debit or check card issuer does not pay Valmont for charges, Valmont reserves the right to immediately suspend or terminate your access to and use of the Services. Any agreement you have with your payment provider governs your use of your specified payment method.
If you dispute any charge for purchases, you must notify Valmont in writing within sixty (60) days of any such charge; failure to so notify Valmont shall result in the waiver by you of any claim relating to such disputed charge; and charges shall be calculated solely based on records maintained by Valmont.
If you purchase a subscription to a service, such subscription recurs on an annual basis until it is canceled in accordance with this section. Billing occurs at the beginning of the subscription period and provides access for one year thereafter. By purchasing a subscription, you acknowledge that your subscription has recurring payment features, and you accept responsibility for all recurring payment obligations prior to cancellation of your subscription by you or Valmont. If you terminate your subscription, you may use your subscription until the end of the then-current period and your subscription will not be renewed after that period expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. Valmont may immediately terminate or suspend your Account, and all or a portion of your subscription, without notice if your payment is overdue. Your failure to terminate and/or continued use of your subscription reaffirms that we are authorized to charge you for that subscription. We may submit those charges for payment, and you will be responsible for such charges. This does not waive our right to seek payment directly from you. You hereby authorize us to charge your specified payment method on an annual basis in line with your subscription period, in advance, for your subscription(s) and/or to place a hold on your payment method with respect to any unpaid charges for your subscription(s).
You agree to pay us, through our payment processors, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms presented to you at the time of purchase or in an invoice. We reserve the right to correct, or to instruct our payment processors to correct, any errors or mistakes, even if payment has already been requested or received.
6. User Data.
Our Services may obtain content or data directly or indirectly from or through you or your employee, Dealer, representative, or agent (“Agent”) or your or your Agent’s use of the Services (collectively, “User Data”). Except for the license you grant below, as between you and Valmont, you retain all rights in and to your User Data. You hereby grant Valmont a perpetual, nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Data in all media formats and channels now known or later developed without compensation to you; (b) use and analyze User Data to improve, and provide maintenance and support for, the Services, and for research and development purposes (both internal and with Valmont third-party partners bound by a duty of confidentiality); (c) analyze User Data with similar data from other sources for identifying trends, patterns, relationships, and statistics (“Trend Data”); (d) summarize, aggregate, or otherwise consolidate User Data with similar data from other sources to develop data aggregates, indices, benchmarking, abstracts, reports, or other descriptions (“Summary Data”); (e) use and distribute to others User Data as it appears in Trend Data and Summary Data; and (f) train and develop machine learning algorithms.
If you or your Agent supply or transmit any User Data via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any law or the rights of any person or entity (including, without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). Any User Data posted publicly or sent privately is the sole responsibility of the person that submitted it. Although Valmont reserves the right to review or remove all User Data on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Data provided through the Services. Valmont shall be entitled, under its sole discretion, to remove or edit any of the User Data at Valmont’s sole discretion and without notice or explanation. Nothing in these Terms obligates Valmont to display your User Data or to use it at all or in a certain manner.
7. Data Transfers to Third Parties
We agree to transfer User Data to a third party that has been pre-approved by us (“Valmont Approved Third Party”) upon our receipt of a written or electronic request from you authorizing such a transfer (each, a “Data Transfer Authorization”). Upon our receipt of a Data Transfer Authorization, we shall be instructed and authorized by you to begin and continue transferring User Data to such Valmont Approved Third Party until we receive a written or electronic request stating that transfers to such Valmont Approved Third Party should cease (each, a “Data Transfer Authorization Revocation”). We will cease transfer of User Data to such Valmont Approved Third Party within a reasonable period of time from the receipt of a Data Transfer Authorization Revocation. All transfers of User Data shall be performed at our sole discretion, including but not limited to, with respect to duration, frequency, file size, timing, and transfer speed. WE SHALL NOT BE LIABLE AND YOU AGREE TO HOLD US HARMLESS FOR ANY VALMONT APPROVED THIRD PARTY’S USE OF USER DATA AND FOR YOUR USE OF A VALMONT APPROVED THIRD PARTY.
8. Appropriate Use of the Services.
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:
You may also only upload or otherwise share User Data that you have all necessary rights to disclose. You may not upload, store or share any User Data that:
If you access and use the Services on your smartphone, tablet or other mobile device, you must have wireless service through Wi-Fi or a participating wireless service provider and a compatible mobile device. You are responsible for all charges (including data and messaging charges) related to your use of the Services through your device. We do not guarantee that the Services are compatible with any particular operating system, browser, mobile device or other software or equipment.
9. Reservation of Rights.
We may modify, suspend, or discontinue any aspect of the Services at any time without prior notice. You agree that we shall not be liable to you or any third party for any modification, suspension, or discontinuance of any feature or component of the Services. In addition, we reserve the right, at any time and for any reason, with or without notice, and without liability to you or any other user, to: (a) restrict, limit, suspend or terminate your and/or any other user’s access to the Services; (b) monitor any user’s use of the Services to verify compliance with these Terms and/or any applicable law; (c) investigate any suspected or alleged misuse of the Services and cooperate with law enforcement and/or third-parties in such investigation; and (d) disclose information about any user’s use of the Services in connection with law enforcement investigation of alleged illegal activity, or in response to a lawful court order or subpoena.
10. Proprietary Rights.
Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the Valmont and Prospera logos and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Valmont or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
No exclusive rights are granted by these Terms. You acknowledge and agree that the Services and Content are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services or Content under these Terms, or any other rights thereto other than to use the Services and Content in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms. Valmont reserves and shall retain its entire right, title, and interest in and to the Services and Content, including all patents, copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in these Terms. In the event that by operation of law any of the Services or Content is not owned in its entirety by Valmont automatically upon its creation, then you hereby assign and agree to assign to Valmont the exclusive ownership of such Services or Content free of any charge or encumbrance. You agree to assist Valmont, at Valmont’s expense, to obtain for Valmont and enforce any intellectual property rights for the Services and Content worldwide. You will execute any documents that Valmont may reasonably request for use in obtaining or enforcing such rights and other legal protections. You hereby grant Valmont the right to use your trademarks, trade names and logos in order to refer to yourself as a customer of Valmont, for the purpose of promoting and marketing the Services and approaching prospective customers.
11. License to Access and Use Our Services and Content.
Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Services and Content solely for your personal, non-commercial use. Except for this limited license granted to you, we reserve all other rights. Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. This license is revocable at any time for any or no reason.
Notwithstanding anything to the contrary in these Terms, the Services and Content may include software components provided by Valmont or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
All trademarks, trade names, service marks and logos appearing on or through the Services (including, without limitation, the “Valmont” and “Prospera” names, Valmont and Prospera logo, and any other Valmont product or service names, logos, marks, slogans, or other identifiers) (collectively, the “Trademarks”) are owned or licensed by us, and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Valmont,” “Prospera,” or any other Trademark of Valmont without our prior written permission. In addition, the look and feel of the Services (including, without limitation, all page headers, custom graphics, button icons and scripts) constitute the Trademark of Valmont. All other trademarks, registered trademarks, product or service names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Valmont.
13. Third-Party Content and Links to Third Parties.
We may display content from third parties through the Services (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, regarding their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. You acknowledge and agree that your interactions with third parties providing Third-Party Content are solely between you and such third parties.
Separate and apart from User Data, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Valmont or the Services (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of Valmont. Valmont shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
15. Compliance with Law.
You warrant that you will use the Services for lawful purposes and will comply with any government law, regulation, or rule applicable hereto, including the laws of the U.S. and foreign trade control laws and regulations; and that you understand that the Services may be subject to export and other foreign trade controls restricting re-sales and/or transfers to other countries and parties, including U.S. Export Administration Regulations and/or the foreign trade control regulations of the U.S. Treasury Department. Specifically, you agree not to download or otherwise export or re-export the Services, Content, or underlying information or technology (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Lebanon, Iran, Syria or any other country to which the U.S. and/or Israel has embargoed goods and services; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Any other provision of these Terms to the contrary notwithstanding, you agree that the Services shall not be resold, re-exported, or otherwise transferred. The Services remains subject to applicable U.S. laws.
To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors, administrators, legal and personal representatives, hereby release, waive, acquit and forever discharge Valmont its affiliates, Dealers, and third-party suppliers, and their officers, directors, personnel, agents, and representatives (collectively, the “Valmont Parties”) from and against, and covenant not to sue any such Valmont Party for, all claims you have or may have arising out of or in any way related to these Terms. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
To the maximum extent permitted by applicable law, you agree to indemnify, defend and hold harmless Valmont Parties from and against all actual or alleged Valmont Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs 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, crop loss or damages to property or personal injury) that are caused by, arise out of or are related to (a) any use or misuse of the Services or Content by you or any third party you authorize to access or use such Services or Content, (b) any User Data or Feedback you provide, (c) your violation of these Terms, (d) your violation of the rights of another, and (e) if you are a Dealer, your use of the Services on behalf of a grower (if the grower is bringing the Claim against a Valmont Party). You agree to promptly notify Valmont of any third party Claims, cooperate with the Valmont Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Valmont Parties shall have sole 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 Valmont.
18. Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. VALMONT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, AND ACCURACY OF DATA. VALMONT MAKES NO WARRANTY THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES VALMONT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR CONTENT, OR THAT DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED, OR THAT ANY INFORMATION OBTAINED THROUGH OR IN CONNECTION WITH THE SERVICES OR CONTENT WILL BE ACCURATE OR COMPLETE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VALMONT OR THROUGH THE SERVICES OR CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE SERVICES AND CONTENT ARE NOT INTENDED TO PROVIDE A SUBSTITUTE FOR YOUR OWN SOUND AND REASONABLY PRUDENT JUDGMENT. PERSONS USING THE SERVICES AND CONTENT ASSUME FULL RESPONSIBILITY FOR THE USE OF THE SERVICES, CONTENT, MATERIALS AND OTHER INFORMATION PROVIDED, AND AGREE THAT VALMONT IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THEIR USE. YOUR RELIANCE ON THE SERVICES AND CONTENT OBTAINED OR USED BY YOU IS SOLELY AT YOUR OWN RISK EXCEPT AS PROVIDED BY LAW.
SOME STATES MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. BUT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ALL WARRANTIES.
19. Limitations of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE VALMONT PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS, PERSONAL INJURY, PROPERTY DAMAGE, CROP LOSS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR COMPUTER FAILURE OR MALFUNCTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER DATA, THIRD-PARTY CONTENT AND LINKED THIRD-PARTY SERVICES), OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE SERVICES OR CONTENT OR ANY VALMONT PARTY OR THIRD PARTY, OR FROM EVENTS BEYOND THE VALMONT PARTIES’ REASONABLE CONTROL, SUCH AS SERVICE INTERRUPTIONS, DELETIONS OF FILES, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE VALMONT PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE VALMONT PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE SERVICES OR CONTENT, EXCEED THE LESSER OF (A) THE AMOUNT YOU PAID TO US FOR THE SPECIFIC SERVICE FROM WHICH SUCH LIABILITY ARISES DURING THE 12 MONTH PERIOD BEFORE THE EVENT GIVING RISE TO LIABILITY, AND (B) $10,000. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE VALMONT PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
THE LIMITATIONS SET FORTH IN THIS SECTION 19 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
20. Dispute Resolution; Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH VALMONT AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, INCLUDING A CLASS ACTION WAIVER. This Section 20 applies to all Disputes (unless excluded under Section 20.1) between you and the Valmont Parties.
20.1. Binding Arbitration.
EXCEPT FOR ANY DISPUTES, CLAIMS, SUITS, ACTIONS, CAUSES OF ACTION, DEMANDS OR PROCEEDINGS (COLLECTIVELY, “DISPUTES”) IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND VALMONT AGREE (A) TO WAIVE YOUR AND VALMONT’S RESPECTIVE RIGHTS TO HAVE ANY AND ALL DISPUTES ARISING FROM OR RELATED TO THESE TERMS, OR THE SERVICES OR CONTENT, RESOLVED IN A COURT, AND (B) TO WAIVE YOUR AND VALMONT’S RESPECTIVE RIGHTS TO A JURY TRIAL. INSTEAD, YOU AND VALMONT AGREE TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION (WHICH IS THE REFERRAL OF A DISPUTE TO ONE OR MORE PERSONS CHARGED WITH REVIEWING THE DISPUTE AND MAKING A FINAL AND BINDING DETERMINATION TO RESOLVE IT INSTEAD OF HAVING THE DISPUTE DECIDED BY A JUDGE OR JURY IN COURT).
20.2. No Class Arbitrations, Class Actions or Representative Actions.
YOU AND VALMONT AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, OR CONTENT IS PERSONAL TO YOU AND VALMONT AND THAT SUCH DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. You and Valmont agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Valmont agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
20.3. Federal Arbitration Act.
You and Valmont agree that these Terms affect interstate commerce and that the enforceability of this Section 20 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
20.4. Notice; Informal Dispute Resolution.
You and Valmont agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Valmont shall be sent by certified mail or courier to 15000 Valmont Plaza, attn: Legal Department, Omaha, NE 68152. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 4 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Valmont cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Valmont may, as appropriate and in accordance with this Section 20, commence an arbitration proceeding or, to the extent specifically provided for in Section 20.1, file a claim in court.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND VALMONT AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR VALMONT WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND VALMONT WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Valmont agree that (a) arbitration will be conducted confidentially by a single arbitrator in accordance with the commercial rules of the American Arbitration Association (“AAA”) that are in effect at the time the arbitration is initiated, as modified by the terms set forth herein (“AAA Rules”), which are hereby incorporated by reference, and (b) that the seat of the arbitration shall be Douglas County, Nebraska and that state or federal courts of the State of Nebraska and the United States, respectively, sitting in Douglas County, Nebraska, have exclusive jurisdiction over any litigation in aid of arbitration and the enforcement of any arbitration awards. The parties shall attempt to agree on the single arbitrator to be appointed to resolve the dispute. If the parties are unable to reach agreement within 30 days after commencement of the arbitration with the AAA, the arbitrator selection process identified in the AAA Rules shall apply. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court. Each party shall be responsible for its costs incurred in such arbitration, but the arbitrator shall not have the authority to re-allocate those costs in an award or otherwise. If you cannot afford to pay for the arbitration, you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. As part of the arbitration, both you and Valmont will have the opportunity to reasonable discovery of non-privileged information that is relevant and material to the Dispute, including the ability to request from each other, and third parties, documents, information and testimony that is relevant and material to the Dispute.
20.6. Authority of Arbitrator.
As limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
20.7. AAA Rules.
By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
If any term, clause or provision of this Section 20 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 20 will remain valid and enforceable. Further, the waivers set forth in Section 20.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
20.9. Opt-Out Right.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 20 by writing to Customer Support. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 21.
21. Governing Law.
These Terms, and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of Nebraska, without regard to conflict of law rules or principles (whether of the State of Nebraska or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of Nebraska and the United States, respectively, sitting in Douglas County, Nebraska.
22. Digital Millennium Copyright Act Compliance.
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Valmont’s Designated Agent as follows:
Designated Agent: DMCA Agent Address: 1601 Dodge St., Suite 3700 First National Tower Omaha, NE 68102 Email: [email protected] Telephone: 402-341-3070
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
23. International Data Transfers
The Services are based in the United States and are subject to U.S. law. If you are accessing the Services from outside the United States, please be advised that U.S. law may not offer the same privacy protections as the laws of your jurisdiction. Further, regardless of where you are accessing the Services, data may be transferred to countries outside of the United States, for storage, review, analytics, or other processing, after which point it may be transferred back to the United States or other third countries. By accessing and using the Services, you consent to the transfer to and processing of your information, including personal data, in the United States or other third countries.
Either you or we may terminate our relationship at any time, with or without cause. In addition, we may deactivate, terminate or suspend your Account at any time: (a) if we, in our sole discretion, determine that you are or have been in violation of these Terms; (b) if we, in our sole discretion, determine that you have created risk or possible legal exposure for Valmont; (c) in response to requests by law enforcement or other government agencies; (d) upon discontinuance or material modification of the Services, or (e) due to unexpected technical issues or problems. We may also stop providing the Services or create limits on use of the Services (in each case, whether specifically to you or generally).
These Terms automatically terminate when you fail to comply or if we reasonably believe that you have not complied with any term or condition of them.
If these Terms are terminated, your license to access and use the Services and Content is also terminated, and Valmont has the right to immediately delete all data, files, and other information stored in or for your Account without further notice to you. You must pay all charges up to and including the date of termination.
Termination will not limit any of our other rights or remedies. Any provision that must survive in order to give proper effect to the intent and purpose of these Terms shall survive termination.
25. App Updates.
Valmont may from time to time, in its sole discretion (without obligation), develop and provide updates for our App, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Valmont has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Portions of the App may not properly operate if you do not install all Updates, so we encourage you to promptly install all updates. To that end, based on your mobile device settings, when your mobile device is connected to the Internet, either (a) the Updates will automatically download and install or (b) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the App and subject to these Terms.
26. Apple Device Additional Terms.
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of these Terms:
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.
These Terms, and any other terms and policies incorporated herein, constitute the entire agreement between you and Valmont relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Valmont. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Valmont’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. 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.