Terms of Service
Last updated: March 31, 2024
These Terms of Service ("Terms") apply to your access to and use of our website, mobile applications and other online services (collectively, the "TREK Services" or "Services") provided by TREK Construction App, LLC. ("TREK", "we" or "us"). PLEASE READ THESE TERMS CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISIONS IN SECTION 21, WHICH REQUIRE THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 21.
YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH USING AN INTERNET-BASED DATABASE TO ORGANIZE CUSTOMER PROJECTS AND PROPOSALS AS OUTLINED IN SECTION 17.
BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, DO NOT USE OUR SERVICES.
We may supply different or additional terms (including, but not limited to, the terms of social media services, third-party payment processors, and third-party fulfillment providers) in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
From time to time, TREK introduces new features that may only be available to certain users. Provisions of these Terms of Service relating to new features may not apply to all users.
To contact TREK regarding the Services or your account, please visit the Contact Us Page at www.trekconstructionapp.com, where we'll ask for certain information that will allow us to effectively respond to your message. Alternately, you can submit general inquiries regarding these Terms or our Services to info@trekconstructionapp.com.
For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.
You must be at least 18 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services.
If you are registering to use the Services on behalf of a legal entity, you represent and warrant that: (a) such legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization, and (b) you are authorized by such legal entity to act on its behalf.
If you use our Services on behalf of another person or entity: (a) all references to "you" throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person's or entity's behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
Additionally, in order to use the Services, you must not: (a) have previously been suspended or removed from using the TREK Construction App Service and (b) be violating any other agreement to which you are a party by agreeing to these Terms.
You must register for a TREK account with TREK or a payment account with a third- party billing system (see section 4(C) for more information) to access some or all of our Services. If you register for any account in connection with the Services, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security and confidentiality of your login credentials, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. Additionally, you may only register for a TREK account if you
are legally permitted to, and do, live in the United States or one of its territories. We reserve the right to reclaim TREK account usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, to those usernames.
You are responsible for all activity on your account. You must provide accurate and complete information in response to our questions, and you must keep that information current. You are responsible for data charges incurred through the use of the Services.
The TREK Services allow you to customize proposals for customers including customer information and job information. The TREK Services allow you to duplicate proposals, revise proposals and change orders. You may create and print out proposals from the application. TREK charges a fee for some functionality features with the Services.
The TREK Services facilitate creating job information sheets for crew members. The TREK Services can generate “Job In Progress” documents for your customers. Your projects are digitally organized and accessible on the application. You may transmit project documents with jobsite photos to your customers.
The TREK Services allow you to take pictures of a jobsite and to organize them with captions. Each area of repair can be illustrated by a pin on an overhead image of the jobsite. The jobsite photos are automatically saved and accessible on the app, not on the mobile device. Photos and documents can be saved and uploaded to mobile or desktop devices.
By posting using the TREK Services, you are responsible to ensure the content of your posting complies with any and all applicable laws, including any local requirements regarding non-discrimination, disclosure of wages and benefits, age requirements for jobs, and other employment related disclosures for job postings. TREK may at any time, at its sole discretion, remove any user content for any reason without providing prior notice.
(ii) the ability to purchase certain enhanced account features, as illustrated in the linked Plan Comparison Chart, or (iii) other services or features TREK may develop. Unless otherwise noted, Paid Services are charged, billed, and managed through your applicable Apple App Store or Google Play Store platform (each a "Platform"). Some Paid Services are one-time payments and some Paid Services are subscriptions that will renew according to the terms identified at the time of purchase.
You consent to us sending messages to your email or mobile devices about your account or our services, which may include marketing. You can opt out of communications in ways that are specific to that communication method, such as by unsubscribing from emails, or replying to text messages with ‘STOP’.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you sign-up for a TREK account or update the contact information associated with your account. Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your account or account support, and marketing or promotional communications. You may opt-out of receiving promotional email communications we send to you by following the unsubscribe options on such emails.
Our Services allow you and other users to create, post, store and share content, including but not limited to messages, text, photos, graphics, videos, company logo or marks, job descriptions, and other materials (collectively, "User Content"). Except for the license you grant below, you retain all rights in and to your User Content, as between you and TREK.
You grant TREK a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you; provided, however, that any customer content meaning the names, addresses or personal information of your customers
(“Customer Content”) will not be shared with any third party and will remain confidential. The use of your or any other user's name, likeness, or identity in connection with the TREK Services does not imply any endorsement thereof unless explicitly stated otherwise.
You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. You will not (and will not allow or authorize any third-party to) post, upload to, transmit, distribute, store, create, solicit, disclose, or otherwise publish through the TREK Services any User Content that:
TREK assumes no responsibility to actively monitor User Content and does not endorse any User Content. Although TREK has no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.
You will not violate any applicable law, contract, intellectual property right or other
third-party right or commit a tort while using our Services, and you are solely responsible for your conduct while using our Services. Without limiting the forgoing, you will not:
You will establish and use your TREK account only in accordance with any guidelines issued by TREK. Without limiting the forgoing, you will not:
If you engage in any of the conduct described above or similar conduct, TREK may suspend or terminate your right to access the Services. Enforcement of this Section 7 is solely at TREK’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 7 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by TREK or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license ("License") to access and use our Services.
TREK may revoke or terminate your License to access or use the TREK Services for any reason without notice at TREK’s sole discretion. Without limiting the generality of the foregoing, we may revoke or terminate the License if you: (i) breach any obligation in these Terms or in any other agreement between you and us, (ii) violate any policy or guideline applicable to the TREK Services, or (iii) use the TREK Services other than as specifically authorized in these Terms, without our prior written permission. You will stop accessing or using the TREK Services immediately if TREK suspends or terminates your License to access or use the TREK Services. TREK reserves the right, but does not
undertake any duty, to take appropriate legal action including the pursuit of civil, criminal, or injunctive redress against you for continuing to use the TREK Services during suspension or after termination. TREK may recover its reasonable attorneys' fees and court costs from you for such action. These Terms will remain enforceable against you while your License to access or use the TREK Services is suspended and after it is terminated.
TREK Construction App, trekconstructionapp.com, and the "TREK Construction App" logo, are trademarks of TREK and may not be copied, imitated or used, in whole or in part, without our express prior written permission. In addition, our products or service names, slogans, the look and feel of our websites and app, including all page headers, custom graphics, button icons and scripts, are our service marks, trademarks, and/or trade dress and may not be copied, imitated or used, in whole or in part, without our express prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the TREK Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about TREK or our Services (collectively, "Feedback"). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the TREK Services by using the Feedback in TREK’s sole discretion. You do not acquire any ownership rights in the TREK Services by your voluntary provision of Feedback. You understand that TREK may treat Feedback as nonconfidential.
We reserve all rights not expressly granted to you in these Terms. The Services are protected by copyright, trademark, patent and other laws of the United States and other countries. We own all rights, title, and interest, in and to the Services and all copies of the Services. These Terms do not grant you any rights to our patents, trademarks or service marks.
You may report alleged intellectual property rights violations or counterfeit items to TREK.
Furthermore, in accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify TREK’s designated agent as follows:
TREK Construction App, LLC. Address: 18731 Loraine Ln.
Yorba Linda, CA 92886
E-Mail Address: info@trekconstructionapp.com
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to TREK for certain costs and damages.
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, "Third-Party Content"). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. TREK does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless TREK and our subsidiaries and affiliates and our officers, directors, agents, partners and employees (individually and collectively, the "TREK Parties") from and against any losses, liabilities, claims, demands, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly notify the TREK Parties of any third-party Claims, cooperate with the TREK Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the TREK Parties will have control of the defense or settlement, at TREK’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and TREK or the other TREK Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided "as is" and "as available" without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non- infringement. In addition, TREK does not represent or warrant that our Services are accurate, complete, reliable, current or error-free or that our Services are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
To the fullest extent permitted by applicable law, TREK and the other TREK Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if TREK or the other TREK Parties have been advised of the possibility of such damages.
The total liability of TREK and the other TREK Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $500 or the amount paid by you to TREK in the 12 months preceding the event that gave rise to the claim.
The limitations set forth in this Section 16 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of TREK or the other TREK Parties or for any other matters in which liability cannot be excluded or limited under applicable law.
YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED DATABASE TO MANAGE JOBSITE PROJECTS AND PROPOSALS. YOU ARE SOLELY RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS TO SAFEGUARD THE INFORMATION YOU INPUT INTO THE DATABASE CONCERNING YOUR CUSTOMER’S PRIVATE PERSONAL INFORMATION. YOU ARE RESPONSBILE FOR YOUR OWN SAFETY AND WELLBEING ON ANY JOBSITE OR WHEN PERFORMING ANY WORK.
To the fullest extent permitted by applicable law, you release TREK and the other TREK Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited
to, claims of negligence), arising out of or related to disputes between users, customers, and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: "A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor or releasing party."
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
If you are a law enforcement agency, we may work with you to assist in on-going matters related to alleged violations of the law. Should you use the Service, you acknowledge that TREK may be mandated to disclose your information to law enforcement as needed.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with TREK and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and TREK agree that any dispute arising out of or related to these Terms or our Services is personal to you and TREK, and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or TREK seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or TREK seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and TREK waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against TREK or relating in any way to the Services, you agree to first contact TREK and attempt to resolve the claim informally by sending a written notice of your claim ("Notice") to TREK
by email at info@trekconstructionapp.com, or by certified mail addressed to TREK Construction App, Attn: Designated Agent, 18731 Loraine Ln., Yorba Linda, CA 92886.
The Notice must (a) include your name, your residence address, your email address, your telephone number, and, if you have registered for a TREK account, the email address your account is registered under if it is different from your current email address; (b) your TREK account username; (c) a description of the nature and basis of the claim; (d) details on the specific TREK transaction in question; and (e) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and TREK cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Orange County, California unless you are a consumer, in which case you may elect to hold the arbitration at the JAMS office closest to your residence. For purposes of this Section 21, a "consumer" means a person using the Services for personal, family or household purposes.
Additionally, arbitrations may be conducted telephonically or via video conference for disputes alleging damages less than $10,000. You and TREK agree that arbitrations will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures ("JAMS Rules"). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and TREK agree that these Terms affect interstate commerce and that the enforceability of this Section 21 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine whether a dispute may be arbitrated. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual's claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitration will allow for the discovery or exchange of non-privileged information relevant to the dispute. The arbitrator, TREK, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or
conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and TREK agree that for any arbitration you initiate, you will pay the filing fee. For any arbitration initiated by TREK, TREK will pay the filing fee. The arbitrator may award the prevailing party the recovery from the non-prevailing party reasonable attorney’s fees and all other JAMS fees and costs. You and TREK agree that the state or federal courts of the State of California and the United States sitting in Orange County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and TREK will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 21 by emailing TREK
at info@trekconstructionapp.com.
In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 23.
If any portion of this Section 21 is found to be unenforceable or unlawful for any reason,
(a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 21 or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 21; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 21 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 21 will be enforceable. If you are a consumer, the provisions of this Section 21 will be modified to the extent necessary to conform to the JAMS Consumer Arbitration Minimum Standards.
In no event shall TREK be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Orange County, California.
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of TREK to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. TREK is an independent contractor for all purposes and is not your agent or trustee. You are not an agent of TREK.