ezMTO Terms of Service

Last Updated June 8, 2023

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW DISPUTES BETWEEN YOU AND EZMTO ARE RESOLVED.

The ezMTO web application and any related applications (collectively the “Site”) is part of an overall service (collectively the “Service” or “Services”), which is operated by ezMTO, Inc. (collectively “ezMTO”, “we”, “us” or “our”). The Service provides users (“User” or “You”) access to features, tools and services that allow users to upload piping isometrics and generate automatic material takeoffs. Before you use the Services, you must agree to these Terms of Service (“Terms””) and our Privacy Policy at https://ezmto.com/privacyPolicy. You agree that we may change the operation of the Site in our sole discretion, at any time and without giving notice. We may also modify these Terms or the Privacy Policy at any time. We will post any amendments at the Site; your continued use of the Service after the “Last Updated” date will constitute your acceptance of and agreement to the changes. If you are not willing and able to comply with these Terms as amended, you agree to cease accessing the Site and using the Service. You may not use the Site if you do not agree to be bound by the terms of these Terms, or your use of the Site would violate any laws or regulations that apply to you.

1. Eligibility

The Service is intended solely for persons who are 18 or older. By accessing or using the Service, you represent and warrant that you are not legally prohibited from doing so under the laws of the country in which you access or use them.

2. About the Service, Registration

The Service provides users the ability to: upload piping isometrics; save project information; and generate automatic material takeoffs. To access and use the Service, you must register an account (“User Account”). To create a User Account, follow the prompts on the Site. You agree to provide accurate, current and complete information during registration and to update such information to keep it accurate, current and complete. You agree that you will safeguard your password and that you are solely responsible for any activities or actions under your User Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your User Account. You are solely responsible for your Content (defined below) and User Account. You can cancel your User Account at any time by logging into your account or contacting us using the contact information provided below. We may refuse to provide you with an account, or suspend or terminate your account, at any time in our sole discretion, with or without a reason, and without prior notice. We will not be liable to you or to any other party for such refusal, suspension, or termination. Following suspension or termination of your account, we retain all legal rights under this Terms (in law and equity). Registration via Third Party Service: We may also allow you to create a User Account via certain third party social networking sites (“SNS”) (such as Google, Apple or Meta/Facebook) (each a “Third Party Service” or “TPS”) by following the prompts on the Site. If so, you represent that you are entitled to disclose your TPS account login information to us and to grant us access to your TPS account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable TPS account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such TPS providers.

3. Fees, Taxes

In exchange for the Services, we may impose fees to be paid by Users (the “Service Fee”). Service Fees are non-refundable. We may collect sales or use tax on transactions performed on the Site if we determine that we are required to collect any sales, use, value-added, or other taxes, assessments, and duties based on your use of the Services (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. You acknowledge that we, or our designated service providers, may make certain reports to tax authorities regarding transactions processed using the Services. If any Taxes are due based on your use of the Services, you will pay those taxes or reimburse us if we are required to pay them.

4. User Content

We are not obligated to pre-screen material, information, data or images posted or submitted by Users (“Content”) on, by or through the Service. We may, but have no obligation to, remove Content that violates our policies or this Terms. Any Content you submit remains yours. By posting, uploading, displaying, performing, transmitting, or otherwise distributing Content by, to or through the Service, you are granting ezMTO, its affiliates, officers, directors, employees, consultants, agents, and representatives a perpetual, royalty-free, paid-up, sublicensable, transferable, irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of, perform, translate, and reformat, in any form, medium or manner, any text, information, data, materials, images, or other such content worldwide. You will not be compensated for any of your Content. By posting Content on, to or through the Service(s), you warrant and represent that you own the rights to the Content or are otherwise authorized to post the Content and grant the licenses herein. You will not upload, download, display, perform, transmit, or otherwise distribute any Content in violation of any party's copyrights, trademarks, patents, or trade secrets. You are solely responsible for any violations of any laws and for any infringements of rights caused by any content you provide, post, or transmit, or that is provided or posted or transmitted using your account. If you submit comments, ideas, or suggestions about the Service, including without limitation suggestions for improvements, you agree that we are free to use and disclose such comments, ideas, and suggestions without additional compensation to you. You hereby grant us a perpetual, irrevocable, paid up, royalty free, nonexclusive, sublicensable, transferable, worldwide license to implement your submitted comments, ideas, and suggestions and/or use them for any other purpose.

5. User Affirmations, Conduct, and Use

By using the Service or Site, you represent, warrant and agree to the following:

You are at least 18 years of age.
You are solely responsible for compliance with any and all laws, rules, regulations, or obligations that may apply to your use of the Service.
Nothing that you upload, publish, represent, warrant or transmit using the Site or Service, will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You will not use manual or automated software, devices, scripts, redirects, robots, other means or processes to access, “frame,” “mirror,” “scrape,” “crawl” or “spider” any web pages or other services contained in the Services. You will not use the Service for any commercial or other purposes that are not expressly permitted by these Terms. You will not copy, store or otherwise access any information contained on the Service for purposes not expressly permitted by these Terms.
You will not interfere with or damage the Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology; You will not impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity.
You will not systematically retrieve data or Content from the Service to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.
You will not access, tamper with, or use non-public areas of the Site or Service, our computer systems, or any third-party provider system.
You will not attempt to probe, scan, or test the vulnerability of our computer system or network or breach any security or authentication measures.
You will not avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by us or any of our providers or any other third party (including another Users) to protect the Site or Service. You will not advocate, encourage, or assist any third party in doing any of the foregoing.
We have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms.
You acknowledge that we have no obligation to monitor your access to or use of the Service or Site, but has the right to do so to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

6. Ownership, Licenses

The Service is protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Service, including the Site and all associated intellectual property rights, is the exclusive property of ezMTO and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, revocable, non-transferable license, to (i) access and utilize the Services made available to you, and (ii) access and view any Content of other Users which you are permitted access. You have no right to sublicense the license rights granted in this section. You represent, warrant and agree that you will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Services, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us or our licensors, except for the licenses and rights expressly granted in these Terms.

7. Digital Millennium Copyright Act

If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website location are covered by a single notification, a representative list of such works at that website;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our designated Copyright Agent to receive notifications of claimed infringement is ezMTO, Inc., email: copyright@ezmto.com, address: ezMTO, 231 S Bemiston Ave Ste 850 PMB 41672 Saint Louis, Missouri 63105-1920 US. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.

Counter-Notice. If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:

Your physical or electronic signature;
Identification of your Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
A statement that you have a good faith belief that the User Submission was removed or disabled as a result of mistake or a misidentification of the User Submission; and
Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal courts of Delaware, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

8. Links

The Site may contain links to third-party websites or resources (of other third parties). You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by us. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.

9. Disclaimers

IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, EZMTO EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. EZMTO MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. EZMTO MAKES NO WARRANTY REGARDING THE QUALITY OF THE SITE. YOU ACKNOWLEDGE AND AGREE TO INDEMNIFY AND HOLD EZMTO HARMLESS IN CONNECTION WITH ANY CLAIM AND ANY DAMAGES OR EXPENSES ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES. Some jurisdictions restrict the disclaimer of warranties and/or exclusion of damages, so such disclaimers and exclusions may not apply to you.

10. Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE OR SERVICE REMAINS WITH YOU. NEITHER EZMTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EZMTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

11. Indemnification

You agree to release, defend, indemnify, and hold ezMTO and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with (a) your access to or use of the Site, or your violation of these Terms; (b) your use of the Services; (c) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (e) any claim that your use of the Services caused damage to a third party. ezMTO shall have the right to control all defense and settlement activities. You acknowledge and agree that we have relied on the representations, warranties, disclaimers, and limitations of liability in these Terms (which reflect a reasonable and fair allocation of risk between the parties and form an essential part of the bargain) in entering this Terms and allowing you to access the Site. We would be unable to provide the Site without these provisions. If despite the provisions herein, ezMTO is found to be liable for damages to you or another party, our aggregate liability is limited to the greater of (i) the amount you actually paid us for the Services within the three months preceding the event causing the claimed liability, and (ii) $100.

12. Force Majeure

ezMTO will have no responsibility or liability for any failure or delay in performance of any Services, or any loss or damage that you may incur, due to any circumstance or event beyond the control of ezMTO, including without limitation any pandemic, flood, extraordinary weather conditions, earthquake, or other act of God, fire, act of war, terrorist act, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.

13. Disputes and Arbitration Procedures

Any claim or dispute arising between you and ezMTO that relates in any way to these Terms, your use of or access to the Service(s), actions by ezMTO or its agents, or any transaction through the Service(s), will be resolved exclusively through final and binding arbitration, rather than in court. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that they will not appeal any arbitration decision to any court. As an alternative, you may file a claim in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. Equitable Remedies: Notwithstanding the foregoing, ezMTO may seek and obtain injunctive relief in any court of competent jurisdiction.

Prohibition of Class and Representative Actions and Jury Trials: YOU AND EZMTO MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS ACTION OR OTHER REPRESENTATIVE STATUS. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS OR PRESIDE OVER ANY CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF ONLY TO THE INDIVIDUAL PARTY SEEKING RELIEF FOR THAT PARTY'S INDIVIDUAL CLAIMS. YOU EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL.

Arbitration Procedures: The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules as modified by this Terms. The AAA's rules are available at www.adr.org. A party who intends to seek arbitration must first send to the other a Notice of Dispute (“Notice”) describing the nature and basis of the claims the party is asserting and the relief sought. A Notice to ezMTO must be sent by certified mail to ezMTO, Attn: Notice of Dispute, ezMTO, 231 S Bemiston Ave Ste 850 PMB 41672 Saint Louis, Missouri 63105-1920 US. ezMTO will send any Notice to the email address on file for your ezMTO account; it is your responsibility to keep your email address up to date. If you and ezMTO are unable to resolve the claims in the Notice within 30 days after the Notice is sent, either party may initiate arbitration proceedings. A form for initiating arbitration proceedings is available at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to ezMTO at the following address: ezMTO, 231 S Bemiston Ave Ste 850 PMB 41672 Saint Louis, Missouri 63105-1920 US. If ezMTO initiates an arbitration, it will send a copy of the completed form to the email address on file for your ezMTO account. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Settlement offers shall not be disclosed to the arbitrator. Any arbitration hearings shall be held in Wilmington, Delaware unless all parties mutually agree to an alternative location or video conference arbitration. If the value of the relief sought is $1,000 or less, either you or ezMTO may elect to have the arbitration conducted by telephone, video conference, or based on written submissions. The arbitrator will decide all claims consistent with applicable law and will honor privileges recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving other users. The arbitrator's award shall be final and binding; judgment on the award may be entered in any court having jurisdiction thereof.

Opt-Out Procedure: YOU CAN REJECT THE ARBITRATION REQUIREMENT HEREIN BY MAILING EZMTO A WRITTEN NOTICE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU OPEN YOUR ACCOUNT FOR THE FIRST TIME.

The Notice must include your name, street address, city, state and zip code, and the user ID(s) and email address(es) associated with the ezMTO account(s) to which the opt-out applies and must be signed by you. You must mail the Opt-Out notice to ezMTO, 231 S Bemiston Ave Ste 850 PMB 41672 Saint Louis, Missouri 63105-1920 US. This is the only way to opt out of arbitration; the rest of these Terms will continue to apply. Opting out of arbitration as provided in this version of these Terms has no effect on any other or future arbitration agreements you may have with ezMTO.

14. General Terms

If the arbitration provisions above are found not to apply to your claim, the state courts located in Delaware and the Federal courts located in Delaware will have exclusive jurisdiction, and you agree to submit to the personal jurisdiction of these courts. The laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Terms and any claim or dispute between you and ezMTO. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site, these Terms, or the Privacy Policy must be filed within one (1) year after such claim or cause of action arose or be forever barred. These Terms, the Privacy Policy, and all policies posted through the Service(s) constitute the entire agreement between you and ezMTO and supersede any prior agreements between you and ezMTO (including, but not limited to, any prior versions of these Terms). We may assign our rights under these Terms in our sole discretion; you may not assign or transfer any of your rights under these Terms other than as provided herein, and any other attempted assignment or transfer of rights by you shall be void and have no effect. The failure of ezMTO to exercise or enforce any of its rights shall not constitute a waiver of those rights. Headings are for reference purposes only and do not limit the scope or extent of any section. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions will remain in force. The provisions of these Terms which by their nature are intended to survive termination of these Term will survive its termination. There are no intended third-party beneficiaries of these Terms.

15. Notice to California Residents.

If you are a California resident, under California Civil Code § 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.