TERMS OF SERVICE AGREEMENT
This Terms of Service Agreement (“Agreement”) is made between DBE Goodfaith, Inc., a California corporation (“Company”) and any person (collectively “you”) who completes the registration process with the Company for the provision of its business entity identification, notification and other services (collectively the “Service”).
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND YOU MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.
1. The Service and Registration
a. Terms of Service, Disclaimers. The Service is proprietary to Company and is protected by intellectual property laws and international intellectual property treaties. Your access to the Service is licensed and not sold. Company agrees to provide you with non-exclusive access to or use of the Service, consisting of the describe service, subject to the terms and limitations set forth in this Agreement. In the event that you require additional services which not covered under this Agreement, it will be your responsibility to notify the Company to request such additional services, and pay any additional fees. The Company makes no representations or warranties whatsoever that the Service will meet the particular requirements for your particular project or the applicable contracting agency. Compliance with such requirements remains your sole responsibility. The Company makes no representations or warranties that the applicable contracting agency allows third party solicitation on your behalf, which is your sole responsibility to determine. If the Company’s database indicates that certain information on a BE (defined below) is missing such as phone numbers, fax numbers or email addresses, the selected BE cannot not be contacted by the missing means. The Company makes no representation or warranty that the information provided in its database (which is provided by the State of California ) is correct, complete or current. In the event that you request fax notifications, as part of the provided Services, we will make a single attempt to fax a notification to the selected party. If the fax number is disconnected, or will not accept the transmission, our responsibility ends, and no further attempt will be made. In the event that you request two phone calls as part of the provided Services, we will make an aggregate of two attempts to contact the appropriate parties who either do not answer the first phone call, are not sure if they are bidding, or have stated that they will bid. A second phone call will not be made to parties who state that they are not interested in the project during the first phone conversation. If the parties don’t answer, we will leave a message where possible. If the number is no longer in service, or if there is no way to leave a message, we will take no further action, and our responsibility ends after making the two attempts. In the event that you request email notification as part of the provided Services, we will make and attempt to send one email to the selected party. If the email address is no longer in service, or if the email is rejected, we will take no further action, and our responsibility ends after making single attempt. There are some agencies, which may or may not view internet advertisement or advertisement on this site as an accepted method of performing minority solicitation. We strongly encourage you to also advertise on other media outlets. It is your sole responsibility to check with the awarding body if advertising on the Company website will meet their good faith requirements. You are solely responsible for contacting any selected BE’s to confirm that they have received your fax, email and/or phone call notifications from the Company. This is part of your due diligence in taking steps to meet your good faith effort requirements. We make no representation or guarantee as to the accuracy of our database of Business Enterprises (each, a “BE”), which may be updated from time to time using information disclosed by state agencies. You will be solely responsible for performing your own due diligence of any BE with respect to their current certification status. You are solely responsible to investigate that the selected BE is actually certified as DVBE, DBE, WBE, MBE, and SBE and that their certifications are acceptable with the awarding body. You are solely responsible to investigate the type(s) of trades the selected BE performs. Additionally, it is your sole duty to investigate and decide if the selected BE is capable, bondable, insurable and experienced in performing the task that they are categorized in. In the event that in performance of the Service, advertisements were not placed correctly or did not provide a commercially reasonable service, You must notify the Company within three days of the placement of the applicable advertisement in order to receive a refund. No refunds will be made if You fail to comply with the above notice requirements. If you submit a Fax Order Form instead of choosing your own subcontractors, the company makes no representation that it will choose the right subcontractors for you. It is impossible for us to accurately and consistently choose the correct subcontractors for the project you are bidding since we have not seen the details of your project and are not familiar with your organization and the type of work that it normally does. If the wrong subcontractor was chosen for your project, we strongly suggest that you contact DBE Goodfaith within 2 working days to request a full refund or have DBE Goodfaith choose other subcontractors for your outreach. If DBE Goodfaith is not contacted in writing within 2 days of your transaction, we will provide no refund of any form nor will any other compensation be provided. By submitting a Fax Order Form you have acknowledged that you have read and understand these terms and are in full agreement. Sending a completed Fax Order Form to DBE Goodfaith acknowledges that you are in full agreement with these terms of service and serves as a contract between your firm and DBE Goodfaith, regardless if you have signed the form or not. DBE Goodfaith strongly suggests that you choose your own subcontractors by utilizing our website to place your own advertisements and search our online database. An annual membership fee may be charged to all members, with automatic renewals. If You wish to cancel your membership, You must notify us prior to the end of the current membership period, or your membership will be automatically renewed. The Company’s assistance is the least minimal steps toward solicitation for minority business participation. Under no circumstances does the Company imply or represent that you will fulfill your good faith effort requirements. We strongly suggest that you advertise in local minority and trade journals and that you take additional steps in notifying selected business in writing and phone calls. The awarding agencies would like to see that you are also making efforts to meet their requirements. You must contact us in writing or by telephone to let us know of any bid date changes or if any other information has changed in relation to the project/RFP you are bidding. We do not have the bid documents and we are not on the plan holders list. If the project goes to a REBID, you must place a new advertisement and conduct a new outreach as if this were a new project. Agencies will not accept a good faith outreach effort from a previous project or RFP. We cannot have any reasonable expectation of knowing that a bid date has been changed or a project has gone to REBID without communication from our customer.
b. Accessibility. You agree that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company.
2. Representations and Warranties
You represent and warrant to Company that: (a) You are over the age of eighteen (18) and have the power and authority to enter into and perform your obligations under this Agreement; (b) You shall comply with all terms and conditions of this Agreement, including, without limitation, the Acceptable Use Policy set forth at Section 3; (c) You have provided accurate and complete registration information, including, without limitation, your legal name, address and telephone number and (d) You are solely responsible for meeting all applicable state, federal or other government deadlines and/or requirements in connection with the project(s) You are using the Services with.
3. Acceptable Use Policy
You are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (b) disseminate or transmit viruses, trojan horses or any other malicious code or program; or (c) engage in any other activity deemed by the Company to be in conflict with the spirit or intent of this Agreement.
a. Security. You are solely responsible for the security, confidentiality and integrity of all messages and the content that you receive, transmit through or store on the Service. You are solely responsible for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your password and all use or charges incurred from use of the Service with your password.
b. Privacy. It is the policy of the Company to respect your privacy. Company will not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless Company has a good faith belief that such action is necessary to: (i) comply with legal process or other legal requirements of any governmental authority; (ii) protect and defend the rights or property of Company; (iii) enforce this Agreement; or (iv) protect the interests of users of the Service other than you or any other person.
This Agreement is effective upon your acceptance as set forth herein and shall continue in full force until terminated. You may terminate this Agreement at any time and for any reason. Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend your access to or use of all or any portion of the Service; and (c) terminate this Agreement.
6. Disclaimer of Warranties
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE.
7. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE THE RETURN OF ANY FEES YOU PAID FOR THE SERVICE UNDER THIS AGREEMENT.
You agree to indemnify, hold harmless and defend Company, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) this Agreement; and (b) your use of the Service, including any data or work transmitted or received by you.
a. Law; Binding Arbitration. This Agreement shall be governed by the laws of the State of California and the United States without reference to conflicts of laws. All unresolved disputes arising under this Agreement shall be submitted to binding arbitration in Alameda County, California, under the rules of the American Arbitration Association. The award of the arbitrator shall be binding and may be entered as a judgment in any Court of competent jurisdiction.
b. Amendment. Company shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by posting such amended terms herein. Your access, link to or use of the Service after the date such amended terms are delivered to your account with the Service shall be deemed to constitute acceptance of such amended terms.
c. Waiver and Severability. No failure, delay in exercising or enforcing any right or remedy hereunder by Company shall constitute a waiver of any other right or remedy, or future exercise thereof. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
d. Survival. The respective rights and obligations of the parties under Sections 2, 3, 4(b), 6, 7, 8 and 9 shall survive any termination or expiration of this Agreement.