A.

This is Bartlett & West Agreement and Terms of Use and Privacy Policy that applies to the Bartlett & West Rail Permitting system and services (“Website”) provided by Bartlett & West, whether we provide it directly or use another party to provide. The Terms of Use and Privacy Policy are designed to conform with applicable laws and regulations that apply to them. By using the Website, you are agreeing to the Terms of Use and Privacy Policy.

B.

If you are using the Website, the Agreement and Terms of Use and Privacy Policy apply to you. Every user of the Website agrees to abide by the Agreement and Terms of Use and Privacy Policy and are responsible for any violations. You are not allowed to assist or engage others in any way that would violate the Agreement and Terms of Use and Privacy Policy. We will enforce and ensure compliance with the Agreement and Terms of Use and Privacy Policy by using all methods we consider to be appropriate including suspension or termination of your use of the Website for violations of the Agreement and Terms of Use and Privacy Policy.

C.

We may periodically update the Agreement and Terms of Use and Privacy Policy which will appear on the Website. You agree to review the Agreement and Terms of Use and Privacy Policy on a regular basis and always remain in compliance.

D.

Personally identifiable information collected about you by the Website is treated in accordance with the Privacy Policy. If you do not agree to these Terms of Use or the Privacy Policy, you must immediately exit the Website.

A. Rights

Subject to the terms and conditions of this Agreement, Bartlett & West grants you a non-exclusive, non-assignable, limited right to access and use, but not to download or copy, the Software Services solely for purposes of creating and submitting a Utility Permitting Application via the Website. You do not acquire under the Agreement any license to the Software in excess of the scope and/or duration of the Software Services.

B. Restrictions

You shall not (i) use the Software Services to provide services under any name other than your name or your company’s name; (ii) use the Software Services to process the data of third parties; (iii) use the Software Services in the operation of a service bureau; (iv) attempt to download, copy, modify, or change the Software; or (v) attempt to decompile, disassemble or otherwise reverse engineer the Software. You further agree not to use or permit use of the Software Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involve the publication of any material that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (v) constitute an infringement of intellectual property or other proprietary rights, or (vi) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Bartlett & West under the Agreement, Bartlett & West reserves the right to remove or disable access to any data or material that violates the foregoing restrictions. Bartlett & West shall have no liability to you or your company in the event that Bartlett & West takes such action. You agree to defend and indemnify Bartlett & West against any claim arising out of a violation of your obligations under this section.

C. Unauthorized Users

The rights granted to under the Agreement are also conditioned on the following: your rights to access and use the Software Services cannot be shared or used by others. Your further agree to make every reasonable effort to prevent unauthorized users and third parties from accessing the Software Services.

A.

This Privacy Policy only covers our privacy practices with respect to the collection, use, and disclosure of information obtained through the Website. Information is collected when filling out the required information requested on the Website, including payment information. We use this information to process your Utility Permit Application and Permit, but also to operate and improve the Website. You hereby authorize Bartlett & West, and/or our contractors to collect, store, and use all data you enter or otherwise provide for reviewing, approving, denying, or oversight of your Utility Permit Application, Permit, and all related activities.

B.

Bartlett & West maintains appropriate technical and organizational measures to protect the personal information obtained through the Website from accidental or unlawful destruction, loss, alteration, unauthorized disclosure and access. Bartlett & West personnel with access to personal information collected through the Website are required to keep such information confidential and secure.

C.

Bartlett & West may retain your personal information for as long as is needed to fulfill the Website purposes or as required by law.

D.

You understand and agree that certain third parties may have access to information submitted to the Website. Bartlett & West will require such third parties to abide by the Agreement and Terms of Use and Privacy Policy for this Website, but Bartlett & West is not responsible for any third-party misuse of your information. In addition, you agree to look solely to the third party for any and all relief relating to any misuse.

E.

When we have no ongoing legitimate business need to process or retain your personal information, we will take commercially reasonable attempts to either delete or anonymize it.

We reserve the right to terminate or modify the Website including any of its content, in whole or in part, in any manner in our sole discretion, without notice. We will not be liable if, for any reason, all or any part of the Website is unavailable at any time or for any period. You are solely responsible for making all arrangements necessary for you to access the Website.

A. Accounts

To access portions of the Website or certain resources, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website, and you hereby represent and warrant, that you are of the legal age of majority in the jurisdiction in which you reside and that all information you provide is correct, current and complete. If you choose, or you are provided with, a username, password or other information as part of our security procedures, you must treat such information as confidential and you must not disclose it to any third party. You agree that you are solely responsible to us for all activities identified with your account. You agree to immediately notify Bartlett & West of any unauthorized use of your username or password or any other breach of security. You must logout from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that your credentials are not saved to the shared device and others are not able to view or record your password or other personal information. Bartlett & West has the absolute right to disable any user name or password, at any time, for any reason, including, if in our sole discretion we believe that you have failed to comply with any provision of this Agreement and Terms of Use and Privacy Policy.

B. Code of Conduct

You agree to comply with the following code of conduct in your use of the Website:

1. Be polite and courteous. Respect and treat others as you would expect to be treated yourself.
2. Information may not include material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
3. From time to time, emails may be sent or received and you agree to such transmissions and agree not to include any "junk mail", "chain letter" or "spam" or any other similar email transmission.
4. Do not use text formats such as all caps or bold that may be read as annoying, rude or send a strong message.
5. Avoid using abbreviations or terminology that others may not understand.
6. Be accountable for your actions by correcting your mistakes and indicating where you have changed a previous post of yours.

C. Prohibited Uses

1. You agree not to access or use the Website in any prohibited manner:
2. You agree not to use the Website in a way that impacts the normal operation, privacy, integrity or security of another's property. These restrictions apply regardless of your intent and whether or not you act intentionally or unintentionally.
3. That violates any applicable federal, state, local or international law or regulation, including civil or criminal liability under applicable laws or regulations applicable to you, another user, and/or Bartlett & West, including violation of privacy or publicity rights, infringement of any copyright, patent, trademark, trade secret or other intellectual property right, or conflicts with this Agreement and Terms of Use or the Privacy Policy.
4. To monitor or attempt to gain unauthorized access to: (a) an account or computer not belonging to you; (b) any data, information or communications on any network or system not owned by you, without authorization; (c) any system or network user accounts or passwords of other users, without authorization; or (d) e‑mail addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, password robbery, spidering and harvesting).
5. That is false, deceptive, misleading or fraudulent, including but not limited to: (a) any attempt to impersonate any person or entity, including any other user, Bartlett & West or a Bartlett & West employee; (b) to misrepresent your identity or affiliation with any person or organization; and (c) any attempt to give the impression that you are posting materials from any person or entity other than yourself if that is not the case, including but not limited to altering your IP source address.
6. To use, transmit or introduce: (a) information protected under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or subject to the Health Information Technology for Economic and Clinical Health (HITECH) Act; or (b) non‑public sensitive or personally identifiable information including but not limited to driver’s license numbers, passport numbers, social security numbers, tax identification numbers, voter registration numbers or similar identifying numbers, health information, or financial information including bank, checking, credit card, debit card, or other account numbers.
7. For the purposes of recruiting, advertising, solicitation or commercial activities of any kind without the express written consent of Bartlett & West, including, but not limited to: (a) promotions, contests, sweepstakes, barter, advertising or pyramid schemes; and (b) the transmission of, or procurement of sending, any advertising or promotional material, including any "junk mail", "chain letter" or "spam" or any other similar solicitation.
8. To monitor or copy materials on the Website for any unauthorized purpose or access the Website via any automatic device, process or means of access such as a robot or spider.
9. That may have a detrimental effect on the Website’s function, user interaction or security, including but not limited to: (a) gaining unauthorized access to, or attempting to compromise the security of, any network, system, computing facility, equipment, data or information; (b) attempting to intercept, redirect or otherwise interfere with communications intended for others; (c) disabling, damaging, overburdening or impairing the Website or any server, computer or database connected to or accessed by the Website ; (d) modifying, blocking or otherwise interfering with the display of the Website ; (e) interfering with another user’s ability to access, use and enjoy the Website ; (f) accessing another user’s registration information or user account without that user’s express written permission; (g) transmitting or introducing any malicious or technologically harmful element to the Website such as a spyware program, virus, Trojan horse, worm or logic bomb; (h) performing, without Bartlett & West’s express prior written authorization, scalability testing, load testing, probing, scanning, penetration or vulnerability testing of the Website ; and (i) engaging in any activities that results in any server being the target of a denial of service attack.
10. You will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Website, (b) modify or create derivative works based on the services provided in the Website, (c) sell, resell, license, copy, rent, lease, distribute, time-share or otherwise use the Website for the benefit of a third party, (d) remove or alter proprietary information from the Website, (e) use the Website to create any competitive or other product or service or (f) use, sell, copy, modify, create derivative works based on, publicly display, or distribute the Website content or information outside of the Website, except for regulatory compliance purposes or otherwise with Bartlett & West’s express consent.

D. Notification of Violation.

If you become aware of any violation of this Agreement and Terms of Use and Privacy Policy by any person, including other users or third parties, you must immediately notify Bartlett & West via e‑mail at utilitypermitting@bartwest.com.

A. Linking to the Website

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You are prohibited from linking to any other page of the Website without our express written permission. We reserve the right to withdraw linking permission without notice. The Website must not be framed on any other site, nor may you create a link to any part of the Website other than the homepage. You must not establish a link from any website that is not owned by you. You agree to cooperate with us in stopping any unauthorized framing or linking.

B. Links from the Website

If the Website contains links to other sites and resources provided by Bartlett & West or third parties, these links are provided for your convenience only. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third‑party websites linked provided, you do so entirely at your own risk and subject to the applicable terms and conditions of use for such websites.

A. Payments

On the Website, you may place a non-cancelable and non-refundable (except as expressly set forth herein) order to use the Website to obtain a permit. To place an order and start the Rail Permitting Application process, access by clicking the “purchase” button. Prices are stated on Website. Payments do not include any taxes that may or may not be applicable and owed. You as a user of the Website, are responsible for any and all taxes.

B. Payments by Credit Card

For purchases by credit card, payment and invoice shall be due upon the start of the Website’s Rail Permitting Application process. The credit card information you provide for billing purposes will be used and stored by the financial institution processing the transaction in the event of future permit purchases. The Website will not use, retain or store any credit card or payment information.

C. Purchases by Invoice

For purchases by invoice, all payments shall be due net thirty (30) days from the date of Bartlett & West’s invoice, and payments shall be made in the currency provided in the invoice. If payment is past due more than 30 days, access to the Website will be terminated.

D. Late Payments

Late payments shall accrue interest at a rate of one and one‑half percent (1.5%) per month or the legal maximum interest rate, whichever is lower. If you are delinquent in payment of amounts owed hereunder, Bartlett & West or a third-party may give notice to you of such delinquency, following which you shall cure the delinquency within ten (10) days from the date of Bartlett & West’s or a third-party written notice. If you fail to cure the delinquency or regain compliance in accordance with the paragraph below, Bartlett & West may suspend your access to the Website in addition to other rights and remedies available.

While using the Website you may be given access to information that is considered confidential or proprietary. You agree to use such confidential or proprietary information only for the purposes associated with seeking the desired permit. Upon receipt of permit, or termination of your use of the Website, all such confidential or proprietary information shall be destroyed or if needed, held in confidence and not disclosed to any person at any time unless expressly authorized by Bartlett & West.

A.

The Website in its entirety including the Software Services and any Website content is owned exclusively by Bartlett & West and is protected by law regarding copyrights, patents, trademarks, trade secrets and other intellectual property or proprietary rights. You are permitted to use the Website only for legitimate business purposes related to your role as a current user. You shall not copy, modify, create derivative works of, publicly display or perform, republish, download or store, or transmit any Website content without Bartlett & West’s express prior written consent.

B.

Unless you have express prior written permission from Bartlett & West, you may not use any name, logo, tagline or other mark of Bartlett & West, or any identifier or tag generated by the Bartlett & West Service, including without limitation: (a) as a hypertext link to any Website or other location (except as provided for or enabled expressly by us); or (b) to imply identification with us as an employee, contractor, agent or other similar representative capacity. You also agree not to remove or alter any of these items as we may have provided or enabled.

C.

Any documentation available on the Website is the copyrighted work of Bartlett & West. Subject to these Terms of Use and Privacy Policy, Bartlett & West grants you a limited, revocable, non‑transferable, non‑exclusive and non‑sublicensable license to use the Website. No right to sublicense or distribute the documentation is granted herein.

EXCEPT TO THE EXTENT THAT A DISCLAIMER OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT WILL BARTLETT & WEST, ITS AFFILIATES AND ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE BARTLETT & WEST UTILITY PERMITTING SYSTEM, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

To the maximum extent permitted by applicable laws, you agree to defend, indemnify and hold us, Bartlett & West and our respective officers, directors, and employees, harmless from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees and other costs of defense) resulting from your violation of these Terms of Use and Privacy Policy or your use of the Website, including, without limitation, any use of the Website's content, unpaid tax liability, services or your use of any information obtained from the Website. We will be entitled, at our sole expense, to participate in the defense and settlement of the claim or action with counsel of our choosing. You may not settle any claims without Bartlett & West’s prior written consent (which will not be unreasonably withheld).

A. Waiver and Severability

No waiver of this Agreement and Terms of Use and Privacy Policy by Bartlett & West shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Bartlett & West to assert a right or provision under this Agreement and Terms of Use and Privacy Policy shall not constitute a waiver of such right or provision. If any provision of this Agreement and Terms of Use and Privacy Policy is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Agreement and Terms of Use and Privacy Policy will continue in full force and effect.

B. Third Party Beneficiaries

There are no third‑party beneficiaries to this Agreement and Terms of Use and Privacy Policy.

C. Termination

Bartlett & West may terminate this Agreement and Terms of Use and Privacy Policy at any time for any reason by giving you written notice, and all licenses, permissions and other rights granted to you hereunder shall immediately terminate. Notwithstanding the termination of this Agreement and Terms of Use and Privacy Policy for any reason, all Bartlett & West’s rights and remedies contained herein shall survive.

D. Governing Law and Jurisdiction

This Agreement and Terms of Use and Privacy Policy and any dispute or claim arising out of, or related to, them, their subject matter or their formation (in each case, including non‑contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Kansas without giving effect to any choice or conflict of laws provision or rule (whether of the State of Kansas or any other jurisdiction).

Any legal suit, action or proceeding arising out of, or related to, this Agreement and Terms of Use and Privacy Policy or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of Kansas, except Bartlett & West retains the right to bring any suit, action or proceeding against you for breach of this Agreement and Terms of Use and Privacy Policy in your country of residence. You hereby irrevocably waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

E. Entire Agreement

The Agreement and Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and Bartlett & West with respect to the Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Website.

13. Use of Data

By submitting data to the Website you are giving Bartlett & West, the Railway Company, and other third-parties the right to use the data to process one or more permit applications you have requested through the Website.

By submitting data to the Website you are giving the Railway Company a non-revocable, perpetual right to retain the data for their records.