This Terms of Service Agreement was last
modified on August 25, 2019.
Oropala, LLC operates www.oropala.com
terms on which Oropala, LLC offers you access to our Site and Online Service.
As used herein, “Online Service” means the online website application provided
via www.oropala.com (or at such other URL as Oropala, LLC may designate from
time to time, including subdomains). The terms “you” and “your” in this
Agreement refer to you, as someone who is accessing the Site, in any manner,
whether automated or otherwise, and any company you represent or associate with
your user information. The terms “we”, “us”, “our” and “Oropala” refer to
Oropala, LLC, a California limited liability company.
BEFORE USING THE ONLINE SERVICE, PLEASE
READ THESE TERMS OF SERVICE, WHICH FORM A BINDING AGREEMENT BETWEEN YOU AND
OROPALA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, DO NOT USE
OR ACCESS THE ONLINE SERVICE.
You must read, agree with and accept all
of the terms and conditions contained in these Terms of Service , which
include the terms and conditions expressly set out below as well as our
reference, before you use or continue to use the Site. We may amend these Terms
of Service at any time by posting notifications of the amended terms on the Site.
Except as stated below, all amended terms shall automatically be effective the
earlier of the date that you explicitly accept the new terms or 30 days after
they are initially posted on our site.
Your continued use of the
Site following the posting of any changes to these Terms of Service will mean
that you accept and agree to such changes. These
of Service may not be otherwise amended except in a writing signed by you and
Our services are available only to
individuals and organizations that can form legally binding contracts under
applicable law. As a user of the Site, you represent that you have the
authority to bind any company associated with your user information to these
Terms of Service. Without limiting the foregoing, our services are not
available to minors or to temporarily or indefinitely suspended Site users.
1. Subject to your compliance with these
Terms of Service, Oropala agrees that it will make the Online Service available
to you; and you shall be granted, and hereby are granted, a revocable,
non-exclusive, non-transferable, worldwide, limited license to use the Site in
you will not (i) sell, lease, or modify, delete, or augment the content
available to you through the Online Service (the “Content”); (ii) decompile,
reverse engineer, disassemble, copy, imitate, reproduce, republish, or make
derivative works of the Content; (iii) remove any confidentiality, privacy,
patent, copyright, trademark, or other proprietary notices in the Content; or
(iv) upload, post, publicly display, encode, translate, transmit, distribute,
or transfer any of the Content to another person, entity, computer, server, or
website or other medium for publication or distribution or for any commercial
enterprise without Oropala’s express prior written consent or in a manner
inconsistent with these Terms of Service and current Site policies. We may in
our sole discretion change some or all of the Online Services. Oropala retains
all rights, title and ownership of the Site. Nothing shall be construed as
granting you any license under any patent, trademark or copyright of Oropala or
any third party. You agree only to use or access the Site in accordance with these
2. Oropala claims no ownership in, or
any affiliation with, third-party trademarks or brand names that may appear on
the Site. Such third-party trademarks are used only to identify the products
and services of their respective owners, and no sponsorship or endorsement on
the part of Oropala should be inferred from their use. You are not permitted to
use the trademarks displayed on the Site without the prior written consent of Oropala
or the third party that may own the trademarks.
3. Your subscription term for the Online
Service will be specified during the order/payment process on the Site. At the
expiration of any subscription term, your subscription will automatically
extend for additional 1-year periods at Oropala’s then-current rates, unless
either party gives the other party written notice of termination at least 30
days prior to the end of the subscription term. The Subscription is not
dependent on any future functionality, upgrades or features (or any public
comments or other disclosure made by or on behalf of Oropala with respect
thereto). Cancellation notices must be delivered via e-mail to
may change our fees for our services from time to time, but such changes will
not apply to you until the next annual renewal of your subscription.
4. No refunds or credits will be extended
for partial or unused subscription periods following termination of a
5. We require a username and password
system to secure access to our site. However, the Site cannot and does not
confirm each user's purported identity. You agree that you are solely
responsible for (1) maintaining the strict confidentiality of your usernames
and passwords; (2) not allowing others to use your username to access the site;
(3) any losses that may be incurred or suffered as a result of your failure to
maintain the confidentiality of your usernames and passwords; and (4) promptly
informing Oropala in writing of the need to deactivate a username resulting
from actual or potential security concerns. Because we cannot confirm each
user's identity, you release Oropala (and our officers, directors, employees, agents,
subsidiaries and business partners) from claims, demands and damages (actual
and consequential) (each a “Claim”) of every kind and nature, known and
unknown, suspected and unsuspected, disclosed and undisclosed, arising out of
or in any way connected with a Claim that arises from our inability to confirm
user identity other than such Claims that result solely and directly from
Oropala’s breach of these Terms of Service, gross negligence or willful
6. We do not control all information provided
by other users and data providers that is made available through our system.
You may find other users’ or data providers’ information to be offensive,
harmful, inaccurate, or deceptive. Oropala does not warrant or make any
representations regarding the accuracy, adequacy or completeness of any
information on the Site, and expressly disclaims any liability arising from, or
as a result of, the use of any information. Accordingly, any person acting upon
or in reliance on any information does so entirely at his or her own risk. BY
USING THIS SITE, YOU ARE EXPLICITLY AGREEING THAT INFORMATION AVAILABLE ON THE
SITE IS NOT TO BE RELIED UPON AND MAY CONTAIN SUBSTANTIAL INACCURACIES.
7. We will use best efforts to ensure
that the Online Service will be available 24 hours per day, 7 days per week,
excluding any scheduled maintenance. Notwithstanding anything contained in this
Agreement to the contrary, we make no warranty regarding the availability of
the Site. Should the Online Service remain unavailable for an extended and
continuous period exceeding 7 days, we will extend your subscription duration
by an amount equal to the period the Online Service was unavailable. No
extension of your subscription will be made for periods of unavailability
shorter than 7 continuous days. This paragraph represents the complete remedy
available to you for unavailability of the Online Service.
8. "Your Information" is
defined as any information you provide to us or other users through the Site or
any email feature. You are solely responsible for Your Information, and we
generally act as a conduit for your online distribution and publication of Your
Information. You certify that Your Information is correct and complete to the
best of your knowledge. You confirm that you have all rights, power, and
authority necessary to post Your Information to the Site. Your Information and
your activities on the site shall not (a) be false, inaccurate or misleading;
(b) be fraudulent; (c) infringe any third party's copyright, patent, trademark,
trade secret or other proprietary rights or rights of publicity or privacy; (d)
violate any law, statute, ordinance or regulation (including, but not limited
to, those governing consumer protection, unfair competition, antidiscrimination
or false advertising); (e) be defamatory, trade libelous, unlawfully
threatening or unlawfully harassing; (f) be obscene; (g) contain any viruses,
Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer
programming routines that may damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or information; or (h)
create liability for us or cause us to lose (in whole or in part) the services
of our ISPs or other suppliers.
You may not use any
“deep-link,” “page-scrape,” “robot,” “spider” or other automatic device,
program, algorithm or methodology, or any similar or equivalent manual process,
to access, acquire, copy or monitor any portion of the Site, or in any way
reproduce or circumvent the navigational structure or presentation of the Site
or any Content, to obtain or attempt to obtain any materials, documents or
information through any means not purposely made available through the Site.
Oropala reserves the right to terminate or suspend your access to and use of the
Site without notice if we believe, in our sole discretion, that it is in
violation of these Terms of Service or any applicable law or it is harmful to
our interests or the interests, including intellectual property or other
rights, of another user or other third party.
9. In order to enable Oropala to use the
information you supply us in offering our services and so that we are not
violating any rights you might have in Your Information, Your transmission of
Your Information shall constitute the granting by you to Oropala of a
non-exclusive, worldwide, perpetual, sub-licensable, irrevocable, royalty-free
right to exercise the rights you have in Your Information. We will not
materially change Your Information so as to make it inaccurate. Other than the
license granted under this paragraph, Oropala will have no rights, title and ownership
in Your Information, and you will retain all rights, title and ownership or
license you may have in Your Information.
10. You acknowledge and agree that
Oropala owns all rights to the Site and its modules (including all
modifications, revisions and derivative works, and all programs, enhancements,
design concepts and other documentation, developed for or relating to the Site),
all tables (including the structure and fields) and forms developed for such
modules, and all Online Services, but excluding rights you may have in Your
11. You agree that you will not use any
device, software or routine to interfere or attempt to interfere with the
proper working of the Site or any activities conducted on our site. You agree
that you will not take any action that imposes an unreasonable or
disproportionately large load on our infrastructure. Much of the information on
our site is updated on a real-time basis and is proprietary or is licensed to
Oropala by our users or third parties. You agree that you will not copy,
reproduce, alter, modify, create derivative works, or publicly display any Content
(except for Your Information) from our website without the prior express
written permission of Oropala or the appropriate third party.
12. We only use your information as
Service Agreement by reference and provides additional terms and conditions
related to specific services offered on the Site.
If you object to Your Information being used in this way, please
do not use our services. In the event of any inconsistency between
13. WE, OUR SUBSIDIARIES, EMPLOYEES AND
OUR SUPPLIERS PROVIDE OUR WEBSITE AND SERVICES "AS IS" AND WITHOUT
ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES,
EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF
TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Some jurisdictions do not allow the disclaimer of implied warranties, so the
foregoing disclaimer may not apply to you. This warranty gives you specific
legal rights and you may also have other legal rights that vary from
jurisdiction to jurisdiction.
14. IN NO EVENT SHALL WE, OUR
SUBSIDIARIES, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH OUR SITE, OUR SERVICES OR THESE TERMS OF SERVICE (HOWEVER ARISING, INCLUDING
NEGLIGENCE). OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, EMPLOYEES,
AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO
THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING
RISE TO LIABILITY. Some jurisdictions do not allow the exclusion or limitation
of incidental or consequential damages, so the above limitation or exclusion
may not apply to you.
15. You agree to indemnify and hold us
and (as applicable) our parent, subsidiaries, affiliates, officers, directors, employees
and agents, harmless from any claim or demand, including reasonable attorneys'
fees, made by any third party due to or arising out of your breach of these Terms
of Service or the documents incorporated herein by reference, or your violation
of any law or the rights of a third party.
16. Any legal controversy or legal claim
arising out of or relating to these Terms of Service or our services, excluding
legal action taken by Oropala to collect our fees and/or recover damages for,
or obtain an injunction relating to, the Site operations, intellectual
property, and our services, shall be settled by binding arbitration in
accordance with the commercial arbitration rules of the American Arbitration
Association. The arbitration shall be conducted in Orange County, California,
and judgment on the arbitration award may be entered into any court having
jurisdiction thereof. Either you or Oropala may seek any interim or preliminary
relief from a court of competent jurisdiction in Orange County, California
necessary to protect the rights or property of you or Oropala pending the
completion of arbitration. Should either party file an action contrary to this
provision, the other party may recover its reasonable attorneys’ fees and
17. OROPALA HEREBY WAIVES,
AND BY ACCEPTING THESE TERMS OF SERVICE, YOU ALSO AGREE TO WAIVE YOUR RIGHT TO
LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A
PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR
IN A REPRESENTATIVE CAPACITY. ANY ARBITRATION WILL BE CONDUCTED ON AN
INDIVIDUAL BASIS AND NOT ON A CONSOLIDATED, CLASSWIDE OR REPRESENTATIVE BASIS,
AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A
CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY
IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT
NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. IF FOR
ANY REASON THE ARBITRATION CLAUSE SET FORTH IN THESE TERMS OF SERVICE IS DEEMED
INAPPLICABLE OR INVALID, OR TO THE EXTENT SUCH ARBITRATION CLAUSE ALLOWS FOR
LITIGATION OF DISPUTES IN COURT, YOU WAIVE, TO THE FULLEST EXTENT ALLOWED BY
LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER
IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
18. All parties to these Terms of Service
shall comply with applicable domestic and international laws, statutes,
ordinances and regulations regarding your use and our provision of the Site.
19. Except as explicitly stated
otherwise, any notices shall be given to Oropala by email to
to you by email to the email address you provide to Oropala during the registration
process. Notice shall be deemed given 24 hours after email is sent, unless the
sending party is notified that the email address is invalid. Alternatively, we
may give you notice by certified mail, postage prepaid and return receipt
requested, to the address provided to Oropala during the registration process.
In such case, notice shall be deemed given three days after the date of
20. The Site may contain links to other
independent third-party websites. Oropala provides these links as a convenience,
and for your reference only. The inclusion of any link does not imply Oropala’s
endorsement of the site or any association with its operators. Sites linked in the
Site are not necessarily under the control of Oropala and Oropala is not
responsible for, nor does it certify the content of any linked site or any link
contained in a non-affiliated linked site. If you decide to access any links to
third party sites you do so at your own risk.
disclaimers posted in connection with these third-party sites relating to
information contained in or available through a third-party site are expressly
21. Unless otherwise set
forth in a written agreement between you and Oropala, you must adhere to Oropala’s
linking policy as follows: (i) any link to the Oropala website must be a
text-only link clearly marked “Oropala website”; (ii) the appearance, position
and other aspects of the link may not be such as to damage or dilute the
goodwill associated with Oropala’s name and trademarks; (iii) the link must
point to the URL https://www.oropala.com
and not to other pages within the Oropala website; (iv) the appearance,
position and other attributes of the link may not create the false appearance
that your organization or entity is sponsored by, affiliated with, or
associated with Oropala; and (v) Oropala reserves the right to revoke its
consent to the link at any time and in its sole discretion.
22. Oropala reserves the right, in its
sole discretion, to terminate your access to all or part of the Site, with or
without notice. Examples of activity that may lead to a termination of your use
of the Site include your breach of any of these Terms of Service.
23. Without limiting other remedies, we
may immediately revoke your user access, warn our community of your actions,
issue a warning, temporarily suspend, indefinitely suspend or terminate your
membership and refuse to provide our services to you if (a) you violate any of
these Terms of Service or any document incorporated herein by reference; (b) we
are unable to verify or authenticate any information you provide to us; or (c)
we believe that your actions may cause financial loss or legal liability for
you, our other users or us.
24. Without limiting any other remedies,
Oropala may suspend or terminate your account if we suspect that you have
engaged in fraudulent activity in connection with the Site.
25. Oropala welcomes your feedback.
you provide through the Site will be deemed to be non-confidential. Oropala
will be free to use such information on an unrestricted basis for any purpose
whatsoever, including, but not limited to, developing, manufacturing and
26. These Terms of Service shall be
governed in all respects by the laws of the State of California as such laws
are applied to agreements entered into and to be performed entirely within
California between California residents. We do not guarantee continuous, uninterrupted
or secure access to our services, and operation of the Site may be interfered
with by numerous factors outside of our control. If any provision of these Terms
of Service is held to be invalid or unenforceable, such provision shall be
struck and the remaining provisions, together with a valid, enforceable
replacement provision, shall be enforced. You agree that these Terms of Service
and all incorporated terms and conditions may be assigned by Oropala, in our
sole discretion, to a third party in the event of a merger or acquisition. Our
failure to act with respect to a breach by you or others does not waive our
right to act with respect to subsequent or similar breaches. These Terms of
conditions set forth the entire understanding and agreement between you and us
with respect to the subject matter hereof.
This Terms of Participation Agreement was last modified on June 10, 2018.
THIS TERMS OF PARTICIPATION AGREEMENT (“Agreement”) is made on the date of acceptance (“Acceptance Date”), as defined below in this Agreement, by and between the excavator participant in the Gold Shovel Standard certification program (“Participant”) and the Gold Shovel Association, an Arizona non-profit corporation (“GSA”). Together, GSA and Participant may be referred to in the Agreement as the “Parties” and, separately, as a “Party.”
WHEREAS, upon completion of the Gold Shovel Standard excavation certification program requirements by Participant to the reasonable satisfaction of GSA, Participant desires certification of Participant’s completion of such program requirements by GSA, to provide certain information to GSA as requested by GSA for use by GSA and its sublicensees, and to license certain GSA trademarks in connection with certification, as further described in the Agreement (the “GSA Trademarks”), in order to promote certification of Participant by GSA and to promote public awareness of worker and public safety in connection with excavations near underground infrastructure and facilities (the “Purpose”), under and subject to this Agreement; and
WHEREAS, upon completion of the Gold Shovel Standard excavation certification requirements by Participant to the reasonable satisfaction of GSA, GSA desires certification by GSA of Participant’s completion of such program requirements, receipt and use by GSA of Participant’s information, and license by GSA to Participant of the GSA Trademarks for the Purpose, under and subject to this Agreement,
NOW, THEREFORE, in consideration of the mutual promises set forth in the Agreement, and the preamble and recitals, which are incorporated herein, the Parties agree as follows:
1. Certification. Upon completion of Gold Shovel Standard excavation certification requirements by Participant to the reasonable satisfaction of GSA, GSA will certify completion of such requirements by Participant. Participant must demonstrate to GSA’s reasonable satisfaction the following in order to earn GSA certification of Participant’s completion of excavation certification requirements:
a. At a minimum, Participant must conduct annual basic excavation damage prevention awareness training for all Participant workers, whether employees or contractors, that will perform excavation work, or be present at excavation work sites, including new hires, and Participant must preserve records of such training;
b. Participant must have whistleblower and stop work practices for such workers, and Participant must notify such workers of these practices;
c. Participant must have a policy to adhere to all applicable Common Ground Alliance (“CGA”) Best Practices, especially Chapter 5 of CGA Best Practices;
d. Participant must have a policy to hire excavator subcontractors (if any subcontractors are used for excavation services by Participant) certified by GSA or to hire non-certified excavation subcontractors only after evaluation and approval of such subcontractors by Participant in lieu of such certification (the Parties each understand and acknowledge however that Participant unilaterally shall determine the hiring of excavation subcontractors by Participant);
e. Participant must have thorough investigation procedures that are used by Participant in the event of an excavation incident;
f. Participant must have corrective action procedures for excavation incidents including root cause analysis;
g. Participant must pay GSA fees charged by GSA for excavator program participation when due, as such fees may be determined by GSA from time-to-time without prior notice to, or consent by, Participant; and
h. Participant must comply with practices and policies determined by GSA that pertain to the GSA program for excavator certification, including, without restriction, program enrollment, as such practices and policies may be determined by GSA from time-to-time without prior notice to, or consent by, Participant.
2. Maintenance of Certification. To maintain such certification, Participant must demonstrate to the reasonable satisfaction of GSA the following:
a. Participant’s compliance in full with the terms, conditions, and requirements applicable to Participant in section 1 of this Agreement;
b. That Participant investigates and reports to its management and GSA all damages to any buried infrastructure (including, without limitation, gas, electric, water, sewer, and telecommunications) promptly following any and all excavation incidents;
c. Participant either hires excavator subcontractors (if any subcontractors are used for excavation services by Participant) certified by GSA or hires non-certified excavation subcontractors after evaluation by Participant under its subcontractor evaluation policy in lieu of such certification (the Parties each understand and acknowledge however that Participant unilaterally shall determine the hiring of excavation subcontractors by Participant); and
d. Participant reports certain work volume information reasonably requested by GSA that is used by GSA for normalizing metrics data.
3. Modification of Certification Requirements. GSA reserves the right to reasonably modify excavator certification requirements from time-to-time without prior notice to, or consent by, Participant, including, without limitation, certification requirements set forth in sections 1 and 2 of this Agreement. GSA will give Participant electronic notice of such modified certification requirements. Electronic notice shall include, without limitation, electronic mail notice of such modifications to Participant and/or GSA posting of such modifications on GSA’s website. Such electronic notice, including, without limitation, by GSA posting of such modifications on GSA’s website alone, shall be deemed actual notice to Participant of such modifications notwithstanding any contrary terms of this Agreement. To maintain excavator certification of Participant by GSA, Participant shall promptly come into compliance with such modified excavator certification requirements after GSA provides Participant electronic notice of such modified requirements.
4. Certification Representations. While Participant is certified by GSA under this Agreement, Participant shall represent publicly and prominently, (a) on its website where certification of Participant by GSA is mentioned, and (b) in all materials prepared by or for Participant that refer to such Participant’s GSA excavator certification that are made available to the public, its customers, or its potential customers, the following: that certification of Participant by GSA under GSA’s excavator certification program means only that Participant has satisfied certification requirements set forth in sections 1 and 2 of this Agreement to the reasonable satisfaction of GSA. Participant shall also enumerate such certification requirements on such website and in such materials. Participant shall make no additional representations or statements about such certification, or its meaning, including, without restriction, representations or statements that that are inconsistent with this section 4 of this Agreement.
5. Participant Information and License. At Participant’s sole cost and expense, Participant will provide to GSA the information set forth in sections 2(b) and 2(d) of this Agreement and such other information as GSA may reasonably request from time-to-time (“Participant Information”). With respect to Participant Information, Participant represents, warrants, covenants, and agrees as follows:
a. The Participant Information is accurate and complete at the time it is reported to GSA, and Participant will update Participant Information reported to GSA, at Participant’s sole cost and expense, in order to maintain the accuracy and completeness of Participant Information;
b. Participant Information is solely owned by Participant, or, if it is not solely owned by Participant, Participant has all permissions, consents, agreements, and/or licenses from all third parties, including, without limitation, owners of interests in Participant Information, that are or may be necessary or required in order to report Participant Information to GSA and to grant GSA the rights set forth in this Agreement pertaining to Participant Information;
c. Participant Information is neither confidential information nor trade secrets of Participant or any third party, and Participant will not assert, and will cause such third parties not to assert, against GSA or its sublicensees any confidential information interest or obligation, any trade secret right or interest, any ownership right or interest, or any other right, obligation, or interest that would have the effect of restricting or barring reporting of Participant Information to GSA or use of Participant Information by GSA or its sublicensees as set forth in this Agreement; and
d. Participant hereby grants GSA a royalty-free, perpetual, non-exclusive license, with the right to sublicense others, to receive and use Participant Information for internal business purposes of GSA, including, without limitation, the rights to disclose Participant Information within GSA, including, without limitation, to GSA directors, officers, employees, contractors, and/or agents, to make copies of Participant Information, to prepare derivative works from Participant Information, including, without limitation summaries or compilations of Participant Information alone or together with other GSA information and/or information of third parties, and to publish, perform, and/or display Participant Information internally within GSA, including, without limitation, to its directors, officers, employees, contractors, and/or agents, with full rights to authorize others to do one or more of the foregoing, provided that, GSA will not disclose Participant Information to GSA members or other third parties, who are not GSA or its directors, officers, employees, contractors, or agents, without the prior consent of Participant.
6. Ownership of GSA Trademarks. The Parties agree that GSA is and shall remain the sole and exclusive owner of all rights, title, and interests in the GSA Trademarks, including, without limitation statutory, common law, and all other rights, title, and interests, as such GSA Trademarks are further described in Exhibit A to this Agreement. Exhibit A is attached to, hereby made a part of, and is incorporated into this Agreement. The Parties further agree that Exhibit A may be modified from time-to-time by GSA without prior consent by, or notice to, Participant. Except as expressly granted in this Agreement, Participant shall have no other rights or interests of any kind in the GSA Trademarks. Under no circumstances will anything in this Agreement be construed as granting a license to any of GSA’s other intellectual property or a license to the GSA Trademarks for any purpose other than the Purpose. GSA shall have the sole right and ability to enforce and defend the GSA Trademarks and to file trademark applications before the US Patent and Trademark Office, trademark offices of one or more States of the United States, or any other foreign or domestic trademark office in the name of GSA for the GSA Trademarks. Participant shall not object to or contest in any manner GSA’s applications or subsequent registrations or renewals of the GSA Trademarks. Participant agrees not to directly or indirectly impair, contest, challenge or dispute GSA’s ownership of the GSA Trademarks.
7. GSA Trademark License. Subject to the terms and conditions of this Agreement and provided that Participant has been and is certified by GSA under this Agreement, GSA hereby grants to Participant a revocable, individual, non-exclusive, non-transferable, royalty-free license, without right of sublicense, to use the GSA Trademarks solely for the Purpose during the period of time that Participant is certified by GSA under this Agreement (the “License”). Participant shall not license, sublicense, sell, transfer, pledge, hypothecate, or otherwise dispose of or encumber the GSA Trademarks or any right, interest, or title therein. In every use of the GSA Trademarks, Participant shall, at Participant’s sole cost and expense: (i) acknowledge in writing, including, without limitation, in electronic communications, that the GSA Trademarks are registered trademarks of GSA and are used with permission of GSA; (ii) cooperate with GSA to maintain the goodwill associated with GSA Trademarks; and (iii) only use the GSA Trademarks in compliance with this Agreement and for the Purpose and in compliance with GSA’s Gold Shovel Standard Emblem Usage Guidelines, as such Guidelines may be amended by GSA from time-to-time (the “Guidelines”), without prior consent by, or notice to, Participant, which Guidelines are hereby incorporated into, and made a part of, this Agreement, and at a quality equal to or higher than the current use of the GSA Trademarks by GSA. In order to protect and preserve GSA’s rights in the GSA Trademarks, Participant understands, acknowledges, and agrees that the GSA shall have the right, at all reasonable times and with reasonable notice, to inspect the manner in which Participant is using the GSA Trademarks to ensure that such use is of proper quality and is otherwise consistent with this Agreement. Participant hereby acknowledges receipt of the Guidelines.
8. Term and Termination. This Agreement shall be effective on the Acceptance Date, as defined below in this Agreement and shall continue in effect until termination in accordance with its terms. The Parties may terminate this Agreement at any time upon mutual written agreement of the Parties. Either Party may terminate this Agreement at any time by giving the other Party at least thirty (30) days prior written notice of termination. GSA shall have the right to revoke certification of Participant immediately upon notice to Participant in the event that Participant fails to perform any term or condition related to certification of Participant by GSA set forth in this Agreement, including, without limitation, any of the requirements for certification set forth in sections 1-4 of this Agreement. GSA shall have the right to terminate, or suspend its performance of, this Agreement and/or to revoke the certification and/or licenses granted herein, immediately upon notice to Participant if Participant: (i) fails to perform any term or condition of this Agreement pertaining to certification of Participant by GSA, including, without limitation, any certification requirement set forth in sections 1-4 of this Agreement; (ii) fails to perform any term or condition of this Agreement pertaining to the License; (iii) fails to comply with applicable laws; (iv) fails to perform or breaches any warranty, covenant, or representation in this Agreement applicable to Participant; and/or (v) fails to perform or breaches any other material provision of this Agreement. Upon revocation of certification or the License under this Agreement by GSA, Participant shall immediately cease making any and all representations that it is certified by GSA and shall immediately cease all use of the GSA Trademarks. Upon termination of this Agreement for any reason or no reason by any Party, certification of Participant by GSA and the License shall automatically terminate, Participant shall immediately cease all use of the GSA Trademarks, and Participant shall immediately cease making any and all representations that it is certified by GSA.
9. No GSA Warranty and Liability Limitation; Participant Warranties. GSA MAKES NO WARRANTIES UNDER THIS AGREEMENT TO PARTICIPANT, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. GSA SHALL HAVE NO LIABILITY TO PARTICIPANT IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER SUCH LIABILITY ARISES IN TORT, INCLUDING, WIHTOUT LIMITATION, GSA’S NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE. GSA’S AGGREGATE LIABILITY TO PARTICIPANT UNDER THIS AGREEMENT SHALL NOT EXCEED THE DIRECT COSTS BORNE BY GSA IN CERTIFYING PARTICIPANT.
Participant represents, warrants, covenants and agrees as follows: (a) Participant, if an entity, was duly formed, is validly existing, is in good standing in the State of its formation; (b) Participant, if a natural person, is at least eighteen years of age, is a citizen or lawful resident of the United States, and is competent to enter into this Agreement; (c) Participant, if an entity, has taken all actions, corporate and otherwise, to authorize Participant, and its representatives, to enter into this Agreement; (d) entry into, and performance of, this Agreement by Participant, if an entity, is consistent with Participant’s governing instruments, and does not conflict with such instruments nor with any law, order, decree, obligation, by contract or otherwise, or any right of any third party, to which Participant is subject, and (e) this is the binding agreement of Participant.
10. Indemnity. Participant, at its sole cost and expense, will defend, indemnify, and hold harmless GSA and its members, officers, directors, employees, contractors and agents (“Indemnified Parties”) from and against all third party claims, suits, actions, demands, damages, liabilities, judgments, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs of litigation) brought against, alleged, or incurred by one or more Indemnified Parties arising from or in connection with (a) Participant’s negligent or otherwise wrongful acts, omissions, or willful misconduct; (b) Participant’s breach of any of representation, warranty, covenant, or other term of this Agreement; (c) Participant’s violation of any applicable law, statute, or regulation; (d) Participant’s violation or misappropriation of any property right, interest, or title of any third party, including, without limitation, third party trade secrets, copyrights, trademarks, patents, proprietary information, common law, or other intellectual property rights, including, without limitation, in connection with Participant Information; and/or (e) any death, bodily injury, or property damage caused or incurred by Participant (together, the “Claims”). GSA will give Participant prompt written notice of written Claims received by GSA. Upon such notice, Participant shall promptly assume the defense of such Claims. GSA and other Indemnified Parties may, at its or their cost and expense, participate in the defense of such Claims. In the event that Participant does not promptly assume the defense of such Claims, GSA and/or one or more of the Indemnified Parties may assume such defense at the expense of Participant. Participant shall not settle or compromise any Claims without the prior written consent of GSA and all affected Indemnified Parties.
11. General Provisions. This Agreement, the exhibit(s) made a part of this Agreement, and the Guidelines contain the entire agreement between the Parties concerning the subject matter of this Agreement and they supersede all prior and contemporaneous agreements, understandings, and representations of the Parties concerning the subject matter of this Agreement. The waiver by either Party of any provision of this Agreement (including but not limited to a waiver of a breach or violation) shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision of this Agreement. No such waiver of this Agreement shall be effective unless in writing that is signed by the Party against whom the waiver is charged. If any term of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement shall remain in full force and effect, and the Parties shall negotiate in good faith substitute terms that are consistent with the Parties’ intentions under the invalid, unenforceable, or void terms. The rights and obligations of the Parties under this Agreement are subject to, and shall be construed under the internal laws of, the State of Arizona without regard to its choice of law principles. The parties consent to the jurisdiction and venue of the state and federal courts located in the State of Arizona with respect to disputes between the Parties arising under this Agreement. Participant will not assign this Agreement in whole or in part without the prior written consent of GSA, which GSA may refuse in its sole discretion. GSA may assign this Agreement in whole or in part by giving notice of assignment to Participant. Any assignment in violation of this section shall be void and of no effect. Subject to the foregoing, the Agreement shall inure to the benefit of the successors and permitted assigns of the Parties. This Agreement may be executed or otherwise accepted in accordance with its terms in two or more counterparts and by electronic signature and may be delivered by electronic mail, facsimile, or other electronic means. All such executed or accepted documents (including facsimiles) when taken together shall be deemed original and shall have the same force and effect as a single document. All notices under this Agreement will be in writing and will be deemed to have been duly given when delivered personally, charges prepaid, sent by first class or certified U.S. mail, postage prepaid, or sent by email with confirmation of receipt, addressed to Participant at the address set forth in the records of GSA and to GSA at the following address: Executive Director, Gold Shovel Association, 2307 S Rural Road, Tempe, AZ 85282, firstname.lastname@example.org. Such notices shall be deemed effective upon receipt if delivered personally, three (3) days after mailing by U.S. mail, or upon confirmation of receipt if sent by email. Either Party may change its notice address information by sending notice in accordance with this section. The rights, remedies, and obligations of the parties set forth in section 5(d) and sections 8 through 11 of this Agreement shall survive termination or expiration of this Agreement. Except as otherwise set forth in the Agreement, all other rights, remedies, and obligations incurred during the term of this Agreement shall survive termination or expiration of this Agreement.
12. Modification of Agreement Terms and Conditions; Posting. GSA may reasonably modify the terms and conditions of this Agreement from time-to-time by giving Participant electronic notice of such modifications. Electronic notice shall include, without limitation, notice of such modifications by electronic mail from GSA to Participant and/or posting of such modifications by GSA on GSA’s website. Electronic notice by GSA to Participant of such modifications, including, without limitation, by GSA posting of such modifications alone on GSA’s website, shall be deemed actual notice to Participant of such modifications, notwithstanding any contrary terms or conditions in this Agreement. Participant may not modify the terms or conditions of this Agreement without the prior written assent of GSA, which GSA may withhold in its sole discretion.
13. Acceptance and Acceptance Date. This Agreement, and all of its terms and conditions, shall be deemed accepted by Participant upon the first to occur of the following: submission of an application by Participant to enroll in the excavator certification program of GSA, whether electronically or otherwise; provision of any Participant Information to GSA by Participant; any use of the GSA Trademarks by Participant; performance of any other term or condition of this Agreement by Participant; or signature of this Agreement on behalf of Participant in writing or electronically, including, without limitation, by click-through acceptance of this Agreement online by or on behalf of Participant. This Agreement, and all of its terms and conditions, shall be deemed accepted by GSA upon the first to occur of the following: GSA notifies Participant that GSA has accepted Participant’s application to enroll in the excavator certification program of GSA, whether electronically or otherwise; GSA’s certification of Participant under this Agreement; receipt and use of Participant Information by GSA; performance of any other term or condition of this Agreement by GSA; or signature of this Agreement on behalf of GSA in writing or electronically, including, without limitation, by click-through acceptance of this Agreement online by or on behalf of GSA. GSA shall accept this Agreement, if at all, after Participant. Upon acceptance of this Agreement by GSA, the Agreement shall become effective (“Acceptance Date”).
The Best Practices are a publication of CGA, a District of Columbia, non-profit corporation. CGA and GSA are independent organizations and are not affiliated. References by GSA to CGA Best Practices do not express or imply an endorsement by either organization of the other or its programs. While GSA’s certification requirements for excavators currently require compliance with CGA Best Practices, CGA, itself, does not maintain such a requirement.
This Authorization was added on June 10, 2018 and has not been modified since.
AUTHORIZATION TO PROVIDE ONE CALL CENTER DATA AND LIABILITY RELEASE
On behalf of my company, I represent and agree to the following: (a) my company participates in the excavator certification program of the Gold Shovel Association (“GSA”), provides certain data to GSA and its directors, officers, employees, contractors, and agents in connection with such program, and enters into this agreement in connection with such program; (b) my company participates in one call center programs related to excavations near underground utility lines; (c) my company provides data to one call centers related to excavations near underground utility lines (“One Call Center Data”); (d) my company hereby authorizes all one call centers having One Call Center Data related to my company to release and provide such One Call Center Data to GSA and its directors, officers, employees, agents, and contractors, including, without limitation, Oropala, LLC (“Oropala”), in such form and substance as GSA and such one call centers may agree; (e) my company hereby grants GSA and its directors, officers, employees, agents, and contractors, including, without limitation, Oropala, a royalty-free, perpetual, non-exclusive license, with the right to sublicense others, to receive and use such One Call Center Data, including, without limitation, the rights to disclose such One Call Center Data, including, without limitation, to GSA directors, officers, employees, agents, and/or contractors, including, without limitation, Oropala, to make copies of such One Call Center Data, to prepare derivative works from such One Call Center Data, including, without limitation, summaries or compilations of such One Call Center Data alone or together with other GSA information and/or information of third parties, and to publish, perform, and/or display such One Call Center Data, including, without limitation, to its directors, officers, employees, agents, and/or contractors, including, without limitation, Oropala, with full rights to authorize others to do one or more of the foregoing; (f) my company will not hold such one call centers, GSA, or their respective directors, officers, employees, agents, and contractors, including, without limitation, Oropala (“Released Parties”), responsible or liable for, and hereby release such Released Parties from, any and all claims, suits, damages, liabilities, judgments, decrees, costs, and fees, arising from such release and use of such One Call Center Data by the Released Parties; (g) my company accepts this agreement upon the earliest occurrence of any of the following: (i) electronic click-through acceptance of this agreement by or on behalf of my company; (ii) provision of such One Call Center Data to any of the Released Parties; (iii) use of such One Call Center Data by any of the Released Parties; and (h) my company is duly organized and in good standing in the State or Province of its formation, my company has all authority and has taken all actions necessary and required to enter into this agreement, including, without limitation, authorizing me to enter into this agreement on behalf of my company, this agreement does not violate any governing instrument of my company or any contract, rule, regulation, order, judgment, or decree to which my company is subject, this agreement does not require any consent by, and does not violate the rights of, any third party, and this agreement is the binding agreement of my company.