Gibraltar Homeowner Terms & Conditions Agreement
The provisions located under the heading “Agreement” below are the legal agreement between The Gibraltar Company, LLC (“Gibraltar
” or “we/us
”) and you, the homeowner and/or renter who desires water damage Restoration Services, DIY Information Services, Extraction/Equipment Rental Services, or other such similar services (as defined herein) and who checks “I Agree” in the sign-in to the website at www.TheGibraltarcompany.com
, & www.TheGibco.com
or the Gibraltar mobile app. If you check “I Agree”, these provisions are enforceable against you, whether or not you have read them.
This Agreement contains terms binding on you about:
Please read this Agreement carefully and do not check “I Agree” unless you agree to the terms contained herein
- limitations on the warranties for the services that we provide
- limitations on our liability
- your agreement not to pursue claims against us for contractors referred by us with whom you enter into direct agreements
- an agreement by you to reimburse us for damages that you cause to us and others due to your violations of this Agreement
- an agreement by you to resolve all claims by binding arbitration in Georgia under Georgia law instead of having a jury trial or other trial in your local court.
By using the website at www.TheGibraltarcompany.com or any other Web site on which a link to this Gibraltar Homeowner Agreement (this “Agreement
”) appears (collectively, the “Site
”), the Gibraltar mobile app (the “App
”), and/or our Restoration Services, you agree to the following terms with us regarding use of the Site/App and/or the Restoration Services offered there.
As used in this Agreement, the word “you
” means either (i) the individual now registering as a user of the Site/App or an existing user of the Site/App now agreeing to this Agreement, as the case may be, and (ii) if your property requiring emergency restoration is owned by a company (including any entity or trust), then such company, trust or other entity specified by you (any such entity, “your Company
”). You and your Company, if any, are jointly and severally liable for your obligations under this Agreement.
I. Defined Terms
As used in this Agreement, the following terms have the following meanings:
” means materials, including images, text, illustrations, designs, icons, photographs, programs, music clips or downloads, video clips and written and other materials (in whatever form or medium) that are made available to you as part of the Site/App. The Content belongs to us.
” means a company other than Gibraltar that provides Restoration Services to you as a result of your activities on the Site/App.
” means any claims, losses, damages, liabilities, judgments and fees and expenses related thereto (including, without limitation, court costs and reasonable attorneys’ fees) suffered by a party.
” means the computer, tablet, phone or other mobile device from which you access the Site/App.
” means the written agreement between you and a Direct Contractor, whether in paper or electronic form, and whether on the Site/Apps or otherwise provided.
” means a Contractor with which you sign a direct agreement for Restoration Services as a result of your activities on the Site/App.
“DYI Information Services
” is defined below in Section III.4.
” means a Contractor providing Extraction/Equipment Rental Services.
“Elite Full Service
” is defined below in Section III.4.
“Extraction/Equipment Rental Services
” is defined below in Section III.4.
” means an individual that you have allowed or invited to your Property, other than us or a EE Contractor.
” means data provided by your Device about the location of you and/or your Property.
” means materials, including images, text, photos or videos (in whatever form or medium) that you provide to us as part of the Restoration Services (but this does not include User Information). Postings belong to you, but you give us rights to use them for purposes of the Restoration Services and as set forth in Section IV.4 (Postings) below.
” means your home or other property requiring Restoration Services.
” means all services provided by Gibraltar or a Contractor for restoration of water damage including but not limited to removal and/or replacement of items within the Property or walls, floors or other components of the Property. Restoration Services are provided at three levels, as described in Section III.4 (Service Levels, Warranties and Remedies) below, and the warranties for each level are different.
” means the date on which Gibraltar or an applicable Contractor provides the applicable Restoration Services and/or installs new materials on the Property, as applicable.
” means all information about you that you enter into the Site or App, including your name, address, email, mobile phone number, Location Data and other information associated with your account.
” means a period of thirty (30) days from the Service Date of the applicable Restoration Services.
II. Accounts and User Information
1. Eligibility for Account. By registering for an account or using the Site/App, you agree that you are at least 18 years of age, or of the age of legal majority in your state of residence. If you registered your Company, you agree that you have written or other sufficient corporate authority to form binding contracts under applicable law on behalf of your Company each time that you use the Site/App. You agree that you will not allow others to use your account, nor will you use your account or the Site/App on behalf of third parties.
2. Accuracy of Information. You agree that all User Information and Postings provided to us or to a Contractor, are true, accurate, up-to-date and not misleading, both with respect to you and with respect to the Property.
3. Termination and Suspension by Gibraltar.
- Acceptance of Registration. We agree to provide you access to the Site/App, the Content and the Restoration Services only as set forth in this Agreement. We reserve the right to reject your user registration, for any reason, with or without notice of the reason therefore.
- We May Terminate or Suspend Your Account. Even after acceptance of your registration, we may terminate or suspend your account (and therefore this Agreement) and/or your access to the Site/App and/or the Restoration Services in our sole discretion, with or without cause, but by providing reasonable notice to you (but notice shall not be required in the event we have reasonable grounds to believe that you are violating this Agreement or a Direct Contract).
- We May Notify Others of Your Violations. If we believe your actions may cause us or other persons legal liability, harm, or loss, we reserve the right to notify such persons of your actions.
- Effect of Our Termination/Suspension. If we terminate your account (and therefore this Agreement) for cause, we or our EE Contractors may keep any deposits or payments already made by you, and we may also pursue collection of other amounts due from you, including any Damages you have caused as well as any and all attorneys’ fees and costs (including court costs) incurred in such collection efforts. If we terminate your account without cause or suspend your account without notice to you for more than ten (10) business days, we or an applicable EE Contractor will provide to you the Restoration Services that you have already paid for as of the time of termination or suspension, but this is our (and our EE Contractors’) only obligation to you in such case. Termination of this Agreement shall have no effect on any Direct Contract you have entered into.
4. Termination by You.
- Termination by You. Should you object to any of the terms of this Agreement after you agree to it (or any subsequent modifications to it) or become dissatisfied with the Site/App and/or the Restoration Services in any way, to the fullest extent permitted by applicable law, your only recourse is to immediately: (i) discontinue use of the Site/App and Restoration Services; and (ii) terminate your account by written notice to us as set forth in Section VI.4 (Notices) below.
- Effect of Termination by You. If you terminate your account (and therefore this Agreement), we or an applicable EE Contractor will provide to you the Restoration Services that you have already paid for as of the time of termination or suspension, but to the fullest extent permitted by applicable law, this is our (and our EE Contractors’) only obligation to you in such case. Termination of your account or this Agreement by you shall have no effect on any Direct Contract that you have entered into with a Direct Contractor.
6. Privacy and Communications With You.
. We use your information only as described in the Gibraltar https://thegibco.com/privacy-policy/
(b) Sale of User Information
. We do not sell or rent your User Information to third parties for these third parties’ marketing purposes without your consent.
(c) Sharing of User Information with Contractors
. You should be aware that we share your User Information with Contractors (both Direct Contractors and EE Contractors) to facilitate their providing Restoration Services to you. We have entered into agreements with EE Contractors prohibiting their use of your User Information other than to carry out the Restoration Services to you, but EE Contractors may use your email address and/or cell phone to communicate with you about their services, unless you opt-out of such use directly with the EE Contractor. We are not responsible for any use of your User Information provided to a Direct Contractor once you have contracted for Elite Full Service.
(d) Consent to Use Your Phone Number
. You hereby agree that the following provisions apply between us with respect to our use of your telephone number:
- Consent to Certain Calls/Texts. You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive calls or text messages (which may include prerecorded voice messages, and/or autodialed calls) from us or from Contractors related to promotions, your account, registration, orientation, upcoming or scheduled Restoration Services, product alterations, changes and updates, service outages, reminders about incomplete or upcoming Restoration Services, follow ups to any push notifications delivered through our mobile application, any transaction with us and/or your relationship with us or a Contractor. You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that we may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means. You agree to receive automated calls and text messages from us and our Contractors even if you cancel your account or terminate your relationship with us, unless you opt-out (see below). You understand that you do not have to agree to receive automated promotional calls/texts as a condition of purchasing any goods or services. To opt-out, please see the Opt-Out Instructions below.
- Opt-Out Instructions. Your consent to receive automated calls and texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, text STOP to any text message you receive or email [email protected] and specify that you want to opt out of text messages. You may also text HELP for help. You acknowledge and agree to accept a final text message confirming your opt-out. To opt-out of automated voice calls (not text messages), you must (i) provide us with written notice revoking your consent to receiving automated calls; (ii) in that written notice, you must include your full name, mailing address, account number, and the specific phone number(s) for which you wish to stop automated calls; and (iii) send this written notice to [email protected]. It is your sole responsibility to notify us if you no longer want to receive automated calls or text messages. You waive any rights to bring claims for unauthorized or undesired calls or text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request. Please note that if you opt out of automated calls or text messages, we reserve the right to make non-automated calls to you.
- Carrier Charges Are Your Responsibility. There is no fee to receive automated telephone calls or text messages from us or our Contractors. However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Check your telephone plan and contact your carrier for details.
7. Third Party Websites. The Site/App may contain links to third party websites as well as third party advertisements, including those of Contractors. Gibraltar is not responsible for and has no liability for the privacy or other practices of any such third party, including but not limited to Direct Contractors performing Elite Full Service. We recommend that you review the privacy policies of each website you visit.
III. Transactions for Services
1. Fees. You agree to pay the applicable fees for the Restoration Services that you contract for using the Site/App. A list of the applicable fees appears on our Fee page, which is made part of this Agreement. You hereby agree that:
- Minimum Charges. All Restoration Services are subject to a minimum charge of $75 or more, depending on the Service Level.
- Cancellations. Cancelled Restoration Services shall be charged at a rate of $75 if not cancelled a minimum of 10 Minutes . Rescheduled Restoration Services following a cancellation with less than twenty-four (24) hours’ notice shall be charged at the then, full, current rate.
- No Shows. Restoration Services shall be charged at their full rate if no one is home to open the house to the Contractor within thirty (30) minutes of the scheduled start time. Rescheduled Restoration Services following a no-show shall be charged at the then, full, current rate.
- Insurance. In the event a portion of the Fees are to be paid by an insurance company, you (or the policy holder, if different) will be responsible for the payment of any deductible from which you can deduct any fees paid to you by us. You should verify the forgoing statement is correct for your particular policy upon consultation with the carrier prior to relying upon it.
- Returned Checks. Any returned check is subject to a $25.00 returned check fee.
- Payment Terms. Payment terms are net 30, and a late fee of 1.5% per month or the highest rate permitted by applicable law, whichever is less, will be assessed on all past due balances.
- Deposits. We reserve the right to require a deposit, or other form of payment guarantee, for accounts that are habitually past due, are past due more than 90 days, or for any other reason we deem necessary. Unless otherwise agreed in writing, all deposits are non-refundable but will be applied to the Restoration Services you choose.
- Taxes. You are responsible for all taxes and regulatory fees of any kind imposed by any federal, state or local taxing authority on the Restoration Services provided to you, but we are responsible for all taxes based upon our own income.
2. Credit Cards. By placing a credit card on file with us, you authorize us to charge your card for any fees you accrue as a result of using the Site/App. You authorize us to consolidate balances from any duplicate accounts you may have created on our Site/App and bill them to your credit card. You may revoke your authorization by sending us a written request to us as set forth in Section VI.4 (Notices) below. We may continue to bill your credit card for any fees for any Restoration Services rendered by us or an applicable EE Contractor taken prior to the receipt of your written revocation. If you have any question about a charge on your credit card, contact us as described in Section VI.4 (Notices) below.
3. Past Due Accounts. If for any reason your account becomes more than 60 days overdue (other than in the case of a good faith dispute that you have given us notice about under Section VI.4 (Notices) below), we reserve the right to suspend your access to the Site/App and Restoration Services provided by us or our EE Contractors, and/or terminate your account (and therefore this Agreement). If your account is overdue as stated above, we reserve the right to report this transaction history to credit agencies, as well as to void promotional offers, including discounted services. If you fail to pay the past due amounts after reasonable notice to you: (i) we may turn your account over to a collection agency and we reserve the right to pursue civil and criminal legal actions to the fullest extent allowed under the law, and (ii) you agree that you are responsible for any and all collection costs (including collection agency fees, court costs and legal fees) we might incur in connection with your past due account. You agree to provide us prompt notice under Section VI.4 (Notices) below of any charges you wish to dispute, but we may in our discretion disregard any such notice received more than 15 days after the Service Date.
4. Service Levels, Warranties and Remedies. The Restoration Services are provided in three different service levels, as described below.
- DIY Information Services.
- Process/Description. The Site and App feature video, text and image Content that is designed to assist you in completing simple Restoration Services without the assistance of us or any Contractor (“DYI Information Services”).
- Fees. The DYI Information Services and the Content is provided free to you.
- Warranty/Service Level. DYI Information Services are is provided to you without any additional warranty, and subject to the exclusions set forth in Section III.5 (Disclaimer of Warranties) below.
- Extraction/Equipment Rental Services.
- Process/Description. If you desire basic Restoration Services, such as water extraction, carpet/pad removal, or equipment rental, the Site and App can facilitate matching you with a Contractor in your area (“Extraction/Equipment Rental Services”), using Location Data. To receive Extraction/Equipment Rental Services, select Extraction/Equipment Rental Services on the Site or App, when you book your selection, and the nearest available contractor will be assigned to you.
- Fees. Fees for Extraction/Equipment Rental Services are based on the size, level of damage and other circumstances of the damaged area of your Property, as well as the equipment needed, and will be quoted to you by us in writing.
- Warranty/Service Level. Subject to the exclusions set forth in Section III.5 (Disclaimer of Warranties) below, Extraction/Equipment Rental Services will be provided by us or by an EE Contractor in a professional and workmanlike manner, by qualified and bonded personnel, using materials that are free of known defects during the Warranty Period, and within a reasonable time from the date that you request Restoration Services on the Site/App.
- Remedies for Warranty Violations. Our sole obligation (and that of any EE Contractor) for Extraction/Equipment Rental Services in the event of a violation of the warranties provided in Section III.4.b.iii above is reperformance of the applicable Restoration Services without charge to you, and your sole remedy for such a violation shall be either termination of this Agreement and/or exercise of the remedy stated in this paragraph.
- Elite Full Service.
- Process/Description. If you desire Restoration Services that are greater or more full service than Extraction/Equipment Rental Services, the Site and App can facilitate matching you with a Contractor in your area for elite full service Restoration Services (“Elite Full Service”), or you can enter into a Direct Contract with the Contractor who provided you with Extraction/Equipment Rental Services.
- Fees. All fees for Direct Contracts are determined between you and the Direct Contractor, and you will make payment directly to the Direct Contractor for all Elite Full Service projects. Notwithstanding the previous sentence, you agree to make payment to us for all Extraction/Equipment Rental Services provided by such a Contractor until such date as you enter into a Direct Contract.
- Warranty/Service Level/Remedies. Subject to the exclusions set forth in Section III.5 (Disclaimer of Warranties) below, Gibraltar warrants only that each Direct Contractor made available to you via the Site/App for Elite Full Service projects have been verified as licensed and bonded at their time of intake as a Contractor to us. You agree that except in the case of a violation by us of the previous sentence, Gibraltar is not responsible for Elite Full Service projects, and you agree not to initiate or assert any claim against Gibraltar with respect to Elite Full Service projects, without regard to the cause of action or the nature of your Damages, and instead you agree to pursue all such claims against the Direct Contractor.
5. DISCLAIMER OF WARRANTIES. YOU AGREE THAT, EXCEPT AS EXPRESSLY STATED IN SECTION III.4 (Service Levels, Warranties and Remedies) ABOVE, USE OF THE SITE, APP AND THE RESTORATION SERVICES ARE ENTIRELY AT YOUR OWN RISK. THE SITE, APP AND RESTORATION SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE/APP OR VIA THE RESTORATION SERVICES, ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE/COURSE OF DEALING. WE DO NOT WARRANT THAT THE SITE/APP OR THEIR FUNCTIONS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. EXCEPT AS EXPRESSLY PROVIDED IN SECTION III.4 (Service Levels, Warranties and Remedies) AND SECTION V.2 (Reimbursement of Damages Caused by You or Us), WE ARE NOT RESPONSIBLE FOR THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, DEFECT IN OR FAILURE OF EQUIPMENT OR ANY OTHER ASPECT OF THE RESTORATION SERVICES, NOR OF THE COMPETENCE, QUALIFICATIONS, ACTS OR OMISSIONS OF (INCLUDING USE OF YOUR PERSONAL DATA) BY ANY OF CONTRACTOR THAT YOU RECEIVE RESTORATION SERVICES FROM AS A RESULT OF YOUR USE OF THE SITE/APP.
IV. Intellectual Property
1. Use of Content. All Content is intended solely for personal, non-commercial use in connection with the Restoration Services provided on the Site/App. No right, title or interest in any Content is transferred to you as a result of this Agreement or of any use by you. You may not download, reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Content, the Site/App or any related software, nor may you employ any bots or other means to “screen scrape” (or otherwise extract/ obtain the benefit of) data regarding transactions other than your own from the Site/App. All software used on the Site/App is the property of Gibraltar or its licensors and suppliers and protected by U.S. and international copyright laws. The Content and software on the Site/App may be used only as a resource for your obtaining personal Restoration Services, and any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the Content is strictly prohibited.
2. Copyrights and Trademarks. Unless otherwise noted, all Content constitutes copyright, trademark, service mark, trade dress and/or other intellectual property owned, controlled or licensed by us or by third parties who have licensed their materials to us and are protected by U.S. and international intellectual property laws. The compilation (meaning the collection, arrangement, and assembly) of all Content on the Site/App is protected by U.S. and international copyright laws.
3. Abuse of Site/App. You are prohibited from violating or attempting to violate the security of the Site/App, or otherwise abusing the Site/App, including, without limitation, (i) accessing data not intended for you or logging onto a server or an account which you are not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (iii) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site/App, overloading, “flooding,” “spamming,” “mailbombing” or “crashing”; (iv) sending unsolicited email, including promotions and/or advertising of products or services via the Site/App, or using any information about other users obtained from the Site/App in order to do so; (v) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting; (vi) using any device, software or routine to interfere or attempt to interfere with the proper working of the Site/App or any activity being conducted on the Site/App or bypass any measures used to restrict access to the Site/App; (vii) using or attempting to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site/App other than the search engine and search agents available from us on the Site/App and other than generally available third party web browsers; or (viii) collecting information about other users without their consent. Violations of system or network security may result in civil or criminal liability.
4. Postings. You retain all intellectual property rights to the Postings you provide us, but you hereby grant us a license to use, copy, distribute (to Contractors and/or your insurer) and display your Postings for purposes of providing the Restoration Services.
5. Submissions. All reviews, comments, feedback, postcards, suggestions, ideas, and other submissions disclosed, submitted or offered to us on or by the Site/App or otherwise disclosed, submitted or offered in connection with your use of the Site/App (collectively, the “Comments
“) shall be and remain our.com property. Such disclosure, submission or offer of any Comments shall constitute an assignment to us of all worldwide right, title and interest in and to all copyrights and other intellectual property in the Comments. As a result, we will own exclusively all such right, title and interest and will not be limited in any way in our use, commercial or otherwise, of any Comments.
6. Apple App Store. The following applies to the App if accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”
V. Our Limits of Liability
- Apple Not a Party. You acknowledge and agree that (i) this Agreement is entered into between you and us only, and Apple, Inc. (“Apple”) is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) we, not Apple, are solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service posted at the Apple App Store.
- Apple Has No Maintenance Obligation. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- Refunds for the App Itself. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between us and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility, subject at all times to warranty limitations and exclusions set forth in this Agreement.
- Apple Not Responsible for Third Party Claims. You and we acknowledge that, as between TaskRabbit and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and we also acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Gibraltar and Apple, Gibraltar (and not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, though only to the extent required by this Agreement.
- Apple Can Enforce this Section Against You. You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
- Other Third Party Terms. Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
1. LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF GIBRALTAR, ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, AS WELL AS ANY OF OUR THIRD PARTY LICENSORS AND EE CONTRACTORS (COLLECTIVELY, “GIBRALTAR PARTIES
”) SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE THE SITE/APP OR RESTORATION SERVICES PROVIDED BY US OR OUR EE CONTRACTORS, OR RELATED TO THE INFORMATION, CONTENT AND FUNCTIONS THEREOF, WHETHER GENERATED BY THE SITE/APP, BY ANOTHER USER OR BY UNAUTHORIZED ACCESS TO THE SITE/APP, DELAYS OR DISRUPTIONS IN THE SITE/APP, ACTIONS TAKEN BY EE CONTRACTORS AND OTHER THIRD PARTIES THROUGH THE SITE/APP, ACTIONS TAKEN RELATED TO YOUR ACCOUT, OR VIRUSES OR MALWARE OBTAINED BY USING THE SITE/APP OR LINKS ON THE SITE. FOR CLARITY, WE ARE NOT RESPONSIBLE FOR ANY LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, LOSS OF GOODWILL OR REPUTATION, BUSINESS INTERRUPTION OR LOSS OF INFORMATION, EVEN IF WE OR OUR AUTHORIZED REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE GIBRALTAR PARTIES HAVE NO LIABILITY WITH RESPECT TO ELITE FULL SERVICE PROVIDED BY DIRECT CONTRACTORS.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF THE GIBRALTAR PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SITE/APP OR THE DYI INFORMATION SERVICES OR THE EXTRACTION/EQUIPMENT RENTAL SERVICES SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL FEES FOR SUCH RESTORATION SERVICES CONTRACTED FOR BY YOU OR (B) US$100.00. THIS LIMITATION SHALL NOT APPLY IN THE CASE OF FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF US OR OUR EE CONTRACTORS.
2. Reimbursement for Damages Caused by You or Us.
- Your Duty to Reimburse Us for Damages You Cause. You agree to reimburse, indemnify, defend and hold the Gibraltar Parties harmless from and against any and all Damages incurred by a Gibraltar Party in connection with any claims arising out of, based upon or resulting from any of the following, whether by you or by a third party using your log-in to the Site/App: (i) any breach or violation of this Agreement, (ii) any use of the Site/App, (iii) negligent or more culpable acts or omissions by you or your Invitees, including but not limited to property damage to or loss of our or any Contractor’s equipment, (iv) any violation of any applicable law or regulation governing your activities on or off of the Site/App or on or off the Property, or (v) the infringement of any intellectual property or other right of any person or entity by your Postings. We agree to provide you reasonable notice of any claim subject to your obligations under this Section V.2. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such event, you agree to reasonably cooperate with such action at your expense.
- Our Duty to Reimburse You for Damages We Cause. We agree to reimburse, indemnify, defend and hold you harmless from and against any and all Damages incurred by you to the extent directly and solely arising from either of the following types of acts/omissions by us or of our EE Contractors: (i) grossly negligent, willful or intentional acts or omissions; and (ii) negligent or more culpable acts or omissions resulting in personal injury or death to you or another resident of the Property. Our obligations under this Section V.2 are conditioned on your promptly notifying us of any claim under this Section V.2 and cooperating with us in our defense of the applicable claim.
- Exceptions to Duties. Neither you nor we shall have any duty under this Section V.2 to the extent the applicable Damages claimed by the other party were caused by a violation of this Agreement by the other party, or by the negligent or more culpable acts or omissions of the other party (including in the case of us, our employees or those of our EE Contractors, and in your case, any of your Invitees).
3. Relationship with Contractors. You agree that we are not the employers of the employees of any Contractor (whether an EE Contractor or a Direct Contractor). Therefore, these employees are not our agents for any purpose, and you agree that we are not responsible for and will not be liable for the acts or omissions of such employees except as expressly stated in this Agreement. We have no control over the quality, safety, morality, or legality of any aspect of any a Direct Contract the truth or accuracy of the offer or the ability of a Direct Contractor to provide Restoration Services sold, the identity of any Seller or Buyer, or the ability of Buyers to pay for items purchased. We do not and cannot ensure that a Direct Contractor will actually complete Restoration Services. If you rely on any of the information provided by or on the Web site or the App, you do so solely at your own risk.
VI. Governing Law, Dispute Resolution in Georgia and Other Terms
1. Choice of Law. To the maximum extent permitted under applicable law, this Agreement, all matters arising from or relating to the your use of the Site/App or the Restoration Services, and any and all claims arising out of your relationship with the Gibraltar Parties shall be governed by and in accordance with the laws of the State of Georgia, excluding (i) its conflicts of laws provisions, (ii) the United Nations Convention on Contracts for the International Sale of Goods, and (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods, as amended.
2. Mandatory Arbitration as Dispute Resolution; Attorneys’ Fees.
ALL PARTIES AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO RESOLVE ANY DISPUTES ARISING OUT OF THIS AGREEMENT, THE RESTORATION SERVICES PROVIDED BY US OR OUR EE CONTRACTORS, OR THE ANY USE OF THE SITE OR APP BY YOU VIA BINDING ARBITRATION CONDUCTED BY A SINGLE ARBITRATOR UNDER COMMERCIAL RULES FOR ARBITRATION BY THE AMERICAN ARBITRATION ASSOCIATION. THE ATLANTA METROPOLITAN AREA SHALL BE THE AGREED LOCATION FOR ANY SUCH ARBITRATION PROCESS. THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATOR SHALL HAVE SUBSTANTIAL EXPERIENCE IN ARBITRATING COMMERCIAL AGREEMENTS CONDUCTED VIA WEBSITES AND APPS.
IF FOR ANY REASON THESE ARBITRATION REQUIREMENTS ARE HELD INAPPLICABLE OR VOID OR HELD NOT TO APPLY, OR A CLAIM PROCEEDS IN SMALL CLAIMS COURT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, GIBRALTAR AND YOU EACH AGREE THAT ALL CLAIMS UNDER THIS AGREEMENT SHALL BE SUBMITTED TO THE EXCLUSIVE JURISDICTION OF THE COURTS SITTING IN FULTON COUNTY, GEORGIA, AND YOU AGREE THAT SUCH COURT SHALL HAVE “IN PERSONAM” JURISDICTION OVER YOU, NOT WITHSTANDING ANY OBJECTION SUCH AS INCONVENIENT FORUM.
YOU HEREBY AGREE THAT YOUR CONSENT TO SUBMIT ALL DISPUTES TO ARBITRATION SHALL BE INDICATED BY YOUR CHECKING “I AGREE” AT THE TIME OF REGISTRATION OR LATER USE OF THE SITE/APP. YOU ALSO UNDERSTAND THAT YOU ARE ALSO AGREEING TO THIS ARBITRATION AGREEMENT, WHICH ENTAILS GIVING UP THE RIGHT TO A TRIAL BY A STATE TRIBUNAL AND TRIAL BY JURY.
3. Exclusion of Class Actions.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND THE GIBRALTAR PARTIES AGREE THAT (A) EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS, (B) WE BOTH HEREBY WAIVE ANY RIGHT TO BRING CLAIMS AS PART OF ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (C) UNLESS BOTH YOU AND GIBRALTAR AGREE TO THE CONTRARY, MORE THAN ONE PARTY’S CLAIMS MAY NOT BE CONSOLIDATED OR JOINED BY THE APPLICABLE COURT, AND (D) ANY RELIEF AWARDED TO YOU CANNOT AFFECT OTHER USERS, AND VICE VERSA.
4. Notices By You. Any notices you send to us shall be provided by you to us at the following address, unless we later notify you in writing of an updated address:
The Gibraltar Company, LLC.
2451 Cumberland Pkwy, Suite 3433
Atlanta, GA 30339
Notices given by us to you may be made by email or by mail to the address you have provided in your User Information, in accordance with Section VI.5 (Electronic Notices and Contracting). Notice shall be deemed given 24 hours after an electronic message is sent, unless the sending party is notified that the message did not reach the recipient or, in the case of mailing by you, three (3) days after the date of mailing.
5. Electronic Notices and Execution.
- Electronic Notices to You by Us. You consent to receive any agreements, notices, disclosures and other communications to which this Agreement refers electronically, including without limitation by email or, to the extent permitted by applicable law, by posting notices on the Site/App. You agree that all notices that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Electronic Contracting Equivalent to Paper. By using the Site/App, you agree to transact electronically through the Site/App. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a keypad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third-party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature. You agree to the admissibility of computer records and electronic evidence in any dispute under this Agreement.
6. Independent Contractors. You and we are independent contractors to one another, and any Direct Contractor is acting as your independent contractor (and you agree Direct Contractors are not our agents or subcontractors for any purpose). No agency relationship, partnership, joint venture, employer-employee relationship or franchisor-franchisee relationship between you and us is intended or created by this Agreement.