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Whirlwind Steel Buildings, Inc. (“Whirlwind”, “we” or “us”) provides technology-enabled services, including the offering branded as “Whirlwind Estimator,” the websites at https://www.whirlwindsteel.com/ and https://apps.mywhirlwindsteel.com/quoting/, any other websites provided by Whirlwind which contain or link to this TOS, any Mobile Apps (as defined below), and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services”). Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (this “TOS”). Your use of the Whirlwind Estimator as a reseller is also subject to and governed by the Reseller Terms of Service located below. Whirlwind may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Whirlwind.
PLEASE REVIEW THIS TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES.
THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 14 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
If you are entering into the TOS as an individual, you represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER.
IF YOU ARE ENTERING INTO THE TOS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT ACCESS OR USE THE SERVICES.
(a) Grant. Subject to and conditioned on your compliance with this TOS, Whirlwind hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services only for your use. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Whirlwind.
(b) Mobile Apps. Whirlwind may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by this TOS. If any Mobile App is downloaded by you from the iTunes App Store, Amazon Appstore, Google Play or any similar service (each, an “App Store”), your use of such Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in such App Store. This TOS is between you and Whirlwind only, and not with the proprietor of any App Store (a “Third Party Proprietor”), and no Third Party Proprietor is responsible for Mobile Apps and the contents thereof; however, any Third Party Proprietor and its subsidiaries are third-party beneficiaries of this TOS with respect to the Mobile Apps.
(c) Trademarks. You may not use the Whirlwind or Whirlwind Estimator names, brands, trademarks, service marks or logos that Whirlwind makes available on the Services (“Marks”). Whirlwind claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Whirlwind. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Whirlwind’s benefit.
In addition to this TOS, the Whirlwind Privacy Policy at https://www.whirlwindsteel.com/privacy-policy/ (“Privacy Policy”) applies to how Whirlwind may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Whirlwind may receive certain information about you, including personal data, as set forth in the Privacy Policy, and Whirlwind may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.
(a) You grant Whirlwind and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
(b) TThe Services provided to you hereunder or available to you through the Services are licensed, not sold, and Whirlwind retains and reserves all rights not expressly granted in this TOS. You acknowledge and agree that, as between you and Whirlwind, Whirlwind and its licensors owns all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Whirlwind reserves all rights not expressly granted to you in this TOS.
(c) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Whirlwind immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Whirlwind reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.
(d) You are solely responsible for the information, data and other materials you provide to Whirlwind (“Your Data”), including with respect to the accuracy, quality and legality thereof. You agree that you are solely responsible for giving all required notices and obtaining all necessary consents before submitting any of Your Data (including any Customer (as defined below) information) through or to the Services or otherwise to Whirlwind.
(a) In your use of the Services, you will not:
(i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOS;
(ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;
(iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;
(iv) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device;
(v) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;
(vi) violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
(vii) remove or obscure any proprietary notice that appears within the Services;
(viii) impersonate any person or entity, including Whirlwind personnel, or falsely state or otherwise misrepresent your affiliation with Whirlwind, or any other entity or person;
(ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
(x) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or
(xi) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.
(b) You will not: upload, post, email, store, transmit, or otherwise make available any content that:
(i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or otherwise objectionable;
(ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
(iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
(iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;
(v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;
(vi) contains infringing, libelous, or otherwise unlawful or tortious material; or
(vii) consists of information that you know or have reason to know is false or inaccurate.
(c) Whirlwind’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Whirlwind, and does not create a private right of action for any other party.
(a) Estimates. Certain aspects of the Services are intended to generate estimates (each, an “Estimate”) with respect to Whirlwind’s products and services (“Products”). You understand and agree that any definitive agreement (each, a “Whirlwind Agreement”) governing your use and purchase of any such Whirlwind products and services will be entered into separately from any Estimate. You understand and agree that Whirlwind reserves the rights to change any quantities, pricing, specifications, schedules or other aspects of the products and services described in an Estimate, and each such Estimate shall be non-binding unless accepted by Whirlwind in writing. Any requested changes by you to an Estimate may lead to additional charges. You further understand and agree that each Estimate is not guaranteed and the price named in the Estimate is an approximation of the requirements of the services and products contained in such Estimate.
(b) Payment. You shall pay all agreed upon fees for all products ordered through the Services as set forth in the order confirmation page or in any Whirlwind Agreement (“Fees”) in accordance with terms set forth herein or therein, as applicable, and any additional terms set forth on the Services. You hereby (i) acknowledge and agree that Fees may be payable by cash, check, or other payment method as authorized by Whirlwind from time to time, or Whirlwind may use a third party payment provider in connection with its collection of Fees, (ii) acknowledge and agree that Whirlwind will not be responsible for any payments or charges as a result of your failure to provide up-to-date and accurate information to any such third party payment provider, and (iii) acknowledge and authorize Whirlwind and its third-party payment processors to charge all Fees to your chosen payment method.
(c) Taxes. Unless otherwise noted, products and services sold by Whirlwind are subject to state and local sales tax in accordance with applicable laws. Whirlwind may not collect sales or use taxes in all states. For states imposing sales or use taxes, your purchase is subject to use tax unless it is specifically exempt from taxation. Your purchase is not exempt merely because it is made over the Internet or by other remote means. Many states require purchasers to file a sales/use tax return at the end of the year reporting all of the taxable purchases that were not taxed and to pay tax on those purchases. Details of how to file these returns may be found at the websites of your respective taxing authorities. The sales tax indicated on an Estimate, invoice or checkout page is an estimate.
(d) Account Information. In order to access certain features or resources of the Services, including without limitation, Estimates, you will be asked to provide certain information to Whirlwind in order for Whirlwind to create an account on your behalf. You represent and warrant to us that any and all information you provide during such registration or at any other time through the Services is (i) true, accurate, current, and complete, and (ii) accurate and up-to-date at all times. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account information or password), you should immediately notify Whirlwind. You may be liable for the losses incurred by Whirlwind or others due to any unauthorized use of your account. We reserve the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of this TOS.
If you use the Whirlwind Estimator to create estimates for your customers (“Customers”), you agree to be bound by the Reseller Terms of Service for the Whirlwind Estimator located at https://www.whirlwindsteel.com/reseller-terms-of-service/.
If you elect to provide or make available to Whirlwind any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Whirlwind shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
The Services may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that such terms and policies are solely between you and the advertiser or other third party. You agree that Whirlwind does not endorse and is not responsible or liable for any issues related to Third Party Services.
You shallall indemnify and hold Whirlwind and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Whirlwind Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to Whirlwind; (b) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; (c) your use of the Services, except as expressly permitted in this TOS; (d) your dealings with Customers; or (e) Your Data.
(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Whirlwind PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
(b) WHIRLWIND PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (III) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
(c) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
(d) THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
(a) WHIRLWIND PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF WHIRLWIND PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL WHIRLWIND PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO WHIRLWIND FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.
(b) THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(a) Either party may terminate this TOS at any time.
(b) If you violate this TOS, Whirlwind may, with or without notice to you, immediately suspend or terminate your access and use of the Services.
(c) Whirlwind reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Whirlwind shall not be liable to you or any third party for any such modification or discontinuance;
(d) Upon termination of this TOS for any reason: (i) Whirlwind, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that that Whirlwind shall not be liable to you or any third party for any termination of your account or access to the Service.
This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.
(a) ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Houston, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN HOUSTON, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Whirlwind may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 14.
(e) If Whirlwind implements any material change to this Section 14, such change shall not apply to any Claim for which you provided written notice to Whirlwind before the implementation of the change.
You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-52100.
This TOS constitutes the entire agreement between you and Whirlwind concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Whirlwind with respect to such subject matter. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern. This TOS may not be amended by you except in a writing executed by you and an authorized representative of Whirlwind. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOS without the prior written consent of Whirlwind. The failure of Whirlwind to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Whirlwind hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delayconstitutes the entire agreement between you and Whirlwind concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Whirlwind with respect to such subject matter. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern. This TOS may not be amended by you except in a writing executed by you and an authorized representative of Whirlwind. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOS without the prior written consent of Whirlwind. The failure of Whirlwind to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Whirlwind hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.
Whirlwind Steel Buildings, Inc. (“Whirlwind”, “we” or “us”) provides a technology-enabled project cost estimator branded as the “Whirlwind Estimator” located at https://apps.mywhirlwindsteel.com/quoting/. This Reseller Terms of Service (this “RTOS”) is a part of the Whirlwind Terms of Service, available at https://www.whirlwindsteel.com/terms-of-service/, and is hereby incorporated into the Whirlwind Terms of Service by reference. All capitalized terms used but not defined in herein shall have the meanings set forth in the Whirlwind Terms of Service. This RTOS sets forth the additional terms and conditions under which you may generate estimates for your Customers using the Whirlwind Estimator. Whirlwind may, at its discretion, update this RTOS at any time. You can access and review the most current version of this RTOS at the URL for this page or by clicking on the “Reseller Terms of Service” link within the Estimator, or as otherwise made available by Whirlwind.
PLEASE REVIEW THIS RTOS CAREFULLY. BY ACCESSING OR USING THE WHIRLWIND ESTIMATOR, YOU AGREE TO BE BOUND BY THIS RTOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS RTOS, YOU MAY NOT ACCESS OR USE THE WHIRLWIND ESTIMATOR.
THIS RTOS REQUIRES FINAL AND BINDING ARBITRATION UNDER THE WHIRLWIND TERMS OF SERVICE TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS RTOS, OR YOUR ACCESS TO OR USE OF THE WHIRLWIND ESTIMATOR, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS RTOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 14 OF THE WHIRLWIND TERMS OF SERVICE CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
If you are entering into the RTOS as an individual, you represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this RTOS; and (c) are not a person barred from using the Whirlwind Estimator under the laws of any applicable jurisdiction. THE WHIRLWIND ESTIMATOR IS NOT INTENDED FOR USERS UNDER THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE WHIRLWIND ESTIMATOR, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER.
IF YOU ARE ENTERING INTO THE RTOS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE RTOS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT ACCESS OR USE THE WHIRLWIND ESTIMATOR.
Subject to your compliance with the terms and conditions set forth herein, in connection with your use of the Whirlwind Estimator for creating estimates for your Customers, Whirlwind grants you a (i) non-exclusive, non-transferable, non-sublicensable, revocable license to use the Whirlwind Estimator to generate, download, and make available to your Customers, an estimate which is intended for use in connection with your sale of the Whirlwind products and services (“Products”) to your Customers (each, a “Customer Estimate”), and (ii) a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free right to use the Customer Estimates solely for the purpose of providing such Customer Estimate to Customers in connection with your sale of the Products to such Customers and for your internal business purposes as necessary to comply with applicable law and regulations and in compliance with your document retention policies. Whirlwind reserves the right terminate and/or suspend your access to the Whirlwind Estimator at any time and for any reason with no advanced notice to you.
You agree that as between you and Whirlwind, Whirlwind is and shall remain the sole and exclusive owner of the Customer Estimates (except for Your Data, as defined in the TOS), including without limitation all applicable templates, pricing information, models and other materials displayed therein. You agree not to modify any Customer Estimate generated by the Whirlwind Estimator other than as expressly permitted in writing by Whirlwind. You agree not to change any of the legal terms included in the Customer Estimate. You agree that Customer Estimates are non-binding quotes that the Whirlwind Estimator generates and Whirlwind shall not be bound by any terms therein. You agree to be bound by the terms of any definitive agreement governing your Customer’s use and purchase of any related Products. You acknowledge and agree that all other terms contained in this RTOS will apply to the Customer Estimates you provide to your Customers.
In connection with your marketing and sale of the Products, you shall, at your own expense: (i) advertise, market, promote, distribute and sell the Products in a manner that is consistent with good business practice and in a manner that reflects favorable at all times on the Products and the good name, goodwill and reputation of Whirlwind; (ii) establish and maintain a qualified sales and marketing organization sufficient to comply with our obligations hereunder and to service your Customers; (iii) have and maintain sufficient knowledge of the industry and the Products, including the Products’ standard protocols and features and differences between the Products and competing products; and (iv) observe Whirlwind’s directions and instructions and Whirlwind’s policies concerning the marketing, advertisement, and promotion of the Products issued by Whirlwind from time to time. You understand and agree that Whirlwind may accept, modify or reject any quantity, delivery location, type or other component or terms of sale of any Products included in any Customer Estimate in its sole discretion and nothing in a Customer Estimate shall be binding upon Whirlwind unless and until a definitive agreement for the purchase and sale of Products is executed by Whirlwind. You understand and agree that delivery dates are not generated by the Whirlwind Estimator and applicable delivery dates shall be determined by Whirlwind after a definitive agreement for the purchase and sale of Products is executed.
You shall not: (i) engage in any unfair, anti-competitive, misleading or deceptive practices regarding Whirlwind or the Products; (ii) sell Products to any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority, or quasi-governmental authority (to the extent that the rules, regulations, or orders of this organization or authority have the force of law), or any arbitrator, court, or tribunal of competent jurisdiction, without express written approval from Whirlwind; or (iii) promise to Customer any warranties or guarantees in excess of what Whirlwind provides in each applicable Customer Estimate or purchase order.
You shall, at your own expense promptly notify Whirlwind of any complaint or adverse claim about the Products or their use or any potential product safety issue related to the Products of which you become aware.
You shall comply with all payment and credit terms as agreed to between you and Whirlwind regarding your resales of the Products.
You understand and agree that if fabrication of any Products is delayed for any reason, including but not limited to, the request of a Customer or as described in a Customer Estimate, for a continuous period of fifteen (15) calendar days or more, the Products shall be subject to repricing by Whirlwind to reflect any increases in labor and/or material cost along with reasonable and normal profit margins on such increases, all of which you agree to pay to Whirlwind. If fuel surcharges imposed by freight lines increase by the time of shipment of any Products, the freight charges shown in the Customer Estimate shall increase by the amount of that increase, which you agree to pay to Whirlwind.
All Products will be drop-shipped by Whirlwind ex works to each applicable designated Customer location(s). Title to all Products and all associated risk of loss and damage will pass to you upon Whirlwind’s delivery of such Products to the carrier and you shall protect, defend, indemnify and hold Whirlwind harmless from and against any loss or damage to the Products REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE IS CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT, CONCURRENT OR GROSS NEGLIGENCE) OF WHIRLWIND OR ANY OTHER FAULT ATTRIBUTABLE TO WHIRLWIND, INCLUDING STRICT LIABILITY.
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Due to the weather conditions, our Houston Plant will be closed on Tuesday, January 21st, and Wednesday, January 22nd. We will resume normal operations on Thursday, January 23, 2025.