· Your agreement that the Platform is provided “as is” and without warranty (Section).
· Your agreement that we have no liability regarding the Platform (Section).
· Your acknowledgment and agreement that we do not supervise, direct or control a Provider’s work or the Jobs in any manner (Section 1) and we have no liability regarding the performance of Jobs.
· Your agreement to indemnify us from claims due to your use or inability to use the Platform or content submitted from your Account to the Platform (Section).
· Your consent that you and we have the right to compel arbitration (Section).
· Your consent that no claims can be adjudicated on a class basis (Section 4(e)).
a. Platform Connects Providers and Clients. The Platform is a web-based communications platform which enables the connection between Clients and Providers. “Clients” are individuals and/or businesses seeking to obtain certain services (each distinct set of services a “Job”) from Providers and are therefore clients of Providers, and “Providers” are individuals and/or businesses seeking to perform Jobs for Clients. Clients and Providers together are hereinafter referred to as “Users.” If you agree on the terms of a Job with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Sectionbelow.
WE DO NOT PERFORM JOBS AND DO NOT EMPLOY INDIVIDUALS TO PERFORM JOBS. WE DO NOT SUPERVISE, DIRECT OR CONTROL A PROVIDER’S WORK OR THE JOBS IN ANY MANNER, WHICH YOU HEREBY ACKNOWLEDGE.
The Platform only enables connections between Users for the fulfillment of Jobs. We are not responsible for the performance of Users, nor do we have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Jobs, Providers, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. We make no representations about the suitability, reliability, timeliness, or accuracy of the Jobs requested and services provided by Users identified through the Platform whether in public, private, or offline interactions.
The Platform may host User Generated Content (as defined hereinafter) relating to reviews and ratings of specific Providers (“Feedback”). Such Feedback is such User’s opinion, not our opinion, and has not been verified or approved by us. As such, each Client should undertake their own research to be satisfied that a specific Provider is the right person for a Job. You agree that we are not liable for any Feedback or other User Generated Content. We encourage each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. We do not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that we do so.
b. User Vetting. Users may be subject to a vetting process before they can register for and during their use of the Platform, including, but not limited to, a verification of identity, using third party services as appropriate. You hereby give consent to us to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although we may perform background checks of Users as outlined above, we cannot confirm that each User is who they claim to be and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Platform. You are solely responsible for conducting due diligence on the Users with which you interact, online or in person.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER WE NOR OUR AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM AND YOU HEREBY RELEASE US AND OUR EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, REPRESENTATIVES, AGENTS, AND OUR AND THEIR AFFILIATES AND LICENSORS (“RELEASED PARTIES”) FROM ANY LIABILITY RELATED THERETO. THE RELEASED PARTIES WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM OR YOUR INTERACTIONS WITH ANY OTHER USER.
c. Disintermediation. You acknowledge and agree that payments for all Jobs shall be processed through the Platform, and you agree not to process Job or Service Agreement (as hereinafter defined) payments in any other manner. Furthermore, if another User suggests moving payment for a Job or Service Agreement outside of the Platform, you agree to immediately notify us. Your violation of this provision will result in the automatic termination of your Account and eliminate your rights to collect any amounts due to you hereunder. If you are a Client, you agree to hire and process payment with any Provider you first connect with on the Platform exclusively through the Platform for the duration of your relationship with the Provider.
2. Service Agreement Terms
a. Contract between Clients and Providers. You acknowledge and agree that a contract is formed when you agree on the terms of a Job with another User (the “Service Agreement”). The terms of the Service Agreement include the terms set forth in this Section 2, the engagement terms proposed and accepted on the Platform, and any other contractual terms accepted by both the Client and the Provider to the extent such terms do not conflict with the terms in this Section 2 and do not expand our obligations or restrict our rights under this Agreement.
You acknowledge and agree that you enter into any Service Agreement freely and after conducting your own due diligence. Notwithstanding any assistance we may provide in establishing the terms of a Service Agreement, you agree that we are not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between us and the Provider. The Provider is obligated to personally perform the Job services and may not subcontract or assign the Provider’s rights or obligations under the Service Agreement.
The Client shall pay for completed Job services as indicated on the Platform at the rates agreed to in the Service Agreement. If a Client enters into a Service Agreement with a Provider and later cancels the Service Agreement, the Client may only be eligible to receive a partial refund of the amount of the Invoice (as defined in Section 2(d) below, as indicated on the Platform, and in any event, the Client will not be entitled to a refund of any service charges we collect. Each party agrees to comply with the Policies during the engagement, performance and completion of a Job.
b. Non-Disclosure. If you are a Provider, you may have access to certain “Client Confidential Information”, meaning any non-public information that relates to the actual or anticipated business or research and development of Client, technical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding Client’s products or services and markets therefor, customer lists and customers, software, developments, inventions, processes, formulas, technology, designs, drawing, engineering, hardware configuration information, marketing, finances or other business information. Client Confidential Information does not include information that (i) is known to Provider at the time of disclosure to Provider by Client as evidenced by written records of Provider, (ii) has become publicly known and made generally available through no wrongful act of Provider or (iii) has been rightfully received by Provider from a third party who is authorized to make such disclosure.
Provider will not, during or subsequent to the term of this Agreement, (i) use Client Confidential Information for any purpose whatsoever other than in furtherance of the performance of services under a Service Agreement with such Client or (ii) disclose the Client Confidential Information to any third party. Provider agrees that all Client Confidential Information will remain the sole property of Client. Provider also agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Client Confidential Information.
Provider recognizes that Client has received and, in the future, will receive from third parties their confidential or proprietary information subject to a duty on Client’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Provider agrees that, during the term of the Service Agreement and thereafter, Provider owes Client and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out Jobs for Client consistent with Client’s agreement with such third party.
c. Intellectual Property Assignment. Provider agrees that all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets conceived, discovered, developed or reduced to practice by Provider, solely or in collaboration with others, in the performance of a Job for a Client that relate in any manner to the business of such Client that Provider may be directed to undertake, investigate or experiment with or that Provider may become associated with in work, investigation or experimentation in Provider’s line of business in performing a Job under a Service Agreement (collectively, “Inventions”), are the sole property of such Client. Provider also agrees to assign (or cause to be assigned) and hereby assigns fully to such Client all Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions.
Provider agrees to assist a Client, or its designee, at such Client’s expense, in every proper way to secure such Client’s rights in Inventions accruing to such Client hereunder and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions in any and all countries, including the disclosure to such Client of all pertinent information and data with respect to all Inventions, the execution of all applications, specifications, oaths, assignments and all other instruments that such Client may deem necessary in order to apply for and obtain such rights and in order to assign and convey to such Client, its successors, assigns and nominees the sole and exclusive right, title and interest in and to all Inventions accruing to such Client hereunder, and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions accruing to such Client hereunder. Provider also agrees that Provider’s obligation to execute or cause to be executed any such instrument or papers shall continue after the termination of this Job and the associated Service Agreement.
If you are a Provider, you appoint us as your limited payment collection agent solely for the purpose of accepting revenues from your Service Agreements with Clients. You agree that payment made from a Client to us will be considered the same as a payment made directly to you as a Provider. Our obligation to pay Providers is subject to and conditional upon successful receipt of associated payments from Clients. In accepting appointment as the limited authorized agent of Provider, we assume no liability for any of the Provider’s acts or omissions. We will bill the Client the Invoice when a Job is entered into, and when the Provider marks the Job as complete on the Platform we will forward the associated Job Payment to the Provider in accordance with the Policies and via a payment method as described on the Platform in the manner and via the method described on the Platform; provided, however, that we may deduct a payment processing fee from the Job Payment, as indicated on the Platform. If you are a Client, we may require you to place a valid and active payment method on file to enable payment and to enter into a Job.
If you are a Client, you acknowledge and agree that notwithstanding the fact that we are not a party to any Service Agreement, we act as the Provider’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Provider. Upon your payment to us of the full amount of any particular transaction, your payment obligation to the Provider is extinguished.
We reserve the right, in our sole discretion (but not the obligation), upon request from Client or Provider or upon notice of any potential fraud, unauthorized charges or other misuse of the Platform, to (i) place on hold any Job Payment and out of pocket expenses, or (ii) refund or provide credits.
e. Job Dispute Resolution. If a User has an issue with another User regarding Service Agreement or a Job (a “Job Dispute”), the User must notify us. Both Provider and Client will have the opportunity to submit written statements regarding the Job and the associated Job Dispute. We will then review submissions and issue a resolution which, in our sole discretion, we feel is most appropriate for the situation. Potential resolutions include, but are not limited to, issuing a partial or full refund to Client (and deducting the refunded amount from amounts due to Provider or billing Provider for the same), rejecting the Job Dispute, or any other resolution. Whether you are a Provider or Client, you acknowledge and agree that we have sole authority and discretion to determine Job Disputes and that our decision regarding any Job Dispute is final. You further agree to waive forever, for yourself and your assigns, any cause of action against us stemming from our resolution of a Job Dispute.
a. Release. The Platform is only a venue for connecting Users. Because we are not involved in the actual Service Agreement between Users or in the completion of the Job, in the event that you have a dispute with one or more Users, you release us and our affiliates (and our and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE PLATFORM, WITH THE EXCEPTION OF OUR ROLE AS A LIMITED PAYMENT COLLECTION AGENT FOR PROVIDERS.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR 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.”
b. Public Areas; Acceptable Use. The Platform may contain profiles, email systems, blogs, message boards, applications, Job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the Platform, you may not share your personal contact information with other Users except as permitted by the Policies or unless the sharing of personal contact information is a feature introduced on the Platform.
Without limitation, while using the Platform, you may not:
· Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including our staff, or use information learned from the Platform or during the performance of Jobs to otherwise defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of any other User or our staff outside of the Platform.
· Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
· Use the Platform for any purpose, including, but not limited to posting or completing a Job, in violation of local, state, national, or international law.
· Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
· Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
· Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
· Advertise or offer to sell any goods or services for any commercial purpose through the Platform which are not relevant to the Job services offered through the Platform.
· Conduct or forward surveys, contests, pyramid schemes, or chain letters.
· Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
· Post the same Job repeatedly (“Spamming”). Spamming is strictly prohibited.
· Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Platform.
· Restrict or inhibit any other User from using and enjoying the Public Areas.
· Imply or state that any statements you make are endorsed by us without our prior written consent.
· Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Platform in any manner.
· Hack or interfere with the Platform, its servers or any connected networks.
· Adapt, alter, license, sublicense or translate the Platform for your own personal or commercial use.
· Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
· Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
· Upload content that provides materials or access to materials that are violent or of a sexual nature.
· Use the Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Platform as set forth herein.
· Use the Platform to collect usernames and or/email addresses of Users by electronic or other means.
· Use the Platform in violation of the Policies.
· Use the Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining our trade secret information for public disclosure or other purposes.
· Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the platform, including inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
· Register under different usernames or identities, after your Account has been suspended or terminated or register under multiple usernames or identities.
· Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and we will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
c. Termination and Suspension. We may terminate or suspend your right to use the Platform if we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.
If we terminate or suspend your right to use the Platform as a Client for a User Breach, you will not be entitled to any refund of any unused balance in your Account, and you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to use the Platform is terminated or suspended, this Agreement will remain enforceable against you.
We reserve the right to modify or discontinue, temporarily or permanently, all or any portion of the Platform at our sole discretion, including your right to use the Platform, for any reason in our sole discretion. Except for refundable fees you have advanced to us (if any), we are not liable to you for any modification or discontinuance of all or any portion of the Platform. Notwithstanding anything to contrary in this Section 3(c), we have the right to restrict anyone from completing registration as a Provider if we believe that such person may threaten the safety and integrity of the Platform, or if, in our sole discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Platform and by cancelling your Account (as hereinafter defined). All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
d. Account, Password, Security and Mobile Phone Use. You must register with us and create an account to use the Platform (your “Account”). You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any login information provided by you or us for accessing the Platform. You are solely and fully responsible for all activities that occur under your password or Account. We have no control over the use of any User’s Account and expressly disclaim any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you will contact us immediately.
By providing your mobile phone number and using the Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts in order to perform and improve upon the Platform. We will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving text messages from us by modifying your account settings on the Platform.
e. Worker Classification and Withholdings. WE DO NOT PERFORM JOBS AND DO NOT EMPLOY INDIVIDUALS TO PERFORM JOBS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of us. Each User acknowledges that we do not, in any way, supervise, direct, or control a Provider’s work or Jobs performed in any manner. We do not set a Provider’s work hours or location of work. We will not provide any equipment, labor or materials needed for a particular Job. We do not provide any supervision to Users.
The Platform is not an employment service and we are not an employer of any User. As such, we are not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Job services.
You agree to indemnify, hold harmless and defend us, our employees, agents, managers, officers, directors, and affiliates (our “Affiliates”) from any and all claims that a Provider was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Provider was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that we were an employer or joint employer of a Provider, any claims under any applicable employment-related laws, such as, without limitation, those relating to employment termination, employment discrimination, harassment or retaliation, as well as, without limitation, any claims for unpaid wages, withholdings, overtime pay, failure to provide meal and rest breaks, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
f. Intellectual Property Rights. All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Platform is owned by us, excluding User Generated Content that we have the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. We own all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Platform without our express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without our prior permission and, if applicable, the holder of the rights to the User Generated Content.
Our service marks and trademarks, including without limitation, our logos are service marks owned by us. Any other trademarks, service marks, logos and/or trade names appearing via the Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
g. Disclaimer of Warranties. USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. WE DO NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER US NOR OUR AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THE PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY JOB OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE PLATFORM.
NEITHER US NOR OUR AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
NEITHER WE NOR OUR AFFILIATES OR LICENSORS WARRANT THAT THE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
WE AND OUR AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE JOB AND SELECTING THEIR PROVIDER AND WE DO NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR PROVIDER. WE DO NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY PROVIDER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
h. Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE THE PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD US, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY US OR OUR AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL WE, OUR AFFILIATES, OUR LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PLATFORM OR THE JOB SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE PLATFORM. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT WE OR OUR PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, OUR LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED $100.
a. Copyright Complaints and Copyright Agent. We respect the intellectual property of others, and expect Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Platform infringe upon your copyright or other intellectual property right, please send the following information to our Copyright Agent at: 4216 N Terraview Dr. Appleton.
· A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Platform where the material you claim is infringed is located. Include enough information to allow us to locate the material, and explain why you think an infringement has taken place;
· A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL where it is posted or the name of the book in which it has been published;
· Your address, telephone number, and e-mail address;
· A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
· A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
· An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
b. Your Information and Likeness. “Your Information” is defined as any information and materials you provide to us or other Users in connection with your registration for and use of the Platform, including without limitation that is posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section 4(b), as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to us that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for us or cause us to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the Platform.
Each Provider hereby waives all rights and releases us from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Provider’s identity, likeness or voice in connection with the Platform.
c. Links to Other Websites. The Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by us of those sites or their content. They are provided as an information service, for reference and convenience only. We do not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the Platform to such websites (including without limitation external websites that are framed by the Platform as well as any advertisements displayed in connection therewith) does not mean that we endorse any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
d. Indemnification. You hereby agree to indemnify, defend, and hold harmless us and our Affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with (i) your use or inability to use the Platform, (ii) any content submitted by you or using your account to the Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful, or (iii) a Job. We reserve the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without our written consent.
INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim between you and us related to this Agreement (“Dispute”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to us. Our address for such notices is 4216 N Terraview Dr. Appleton WI 54913 with the subject line reading: Legal.
BINDING ARBITRATION. If you and we are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Platform (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and we may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
EXCEPTIONS TO ALTERNATIVE DISPUTE RESOLUTION. Claims where mandatory arbitration is prohibited by a valid, non-preempted law, including claims under the Private Attorneys General Act of 2004, California Labor Code § 2698 et seq. (“PAGA”) to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction, are not covered by this arbitration provision. Nothing in this arbitration provision will prevent either party from bringing an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis the Wisconsin state or federal courts located in Waukesha County, Wisconsin, with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and we agree that any arbitration will be limited to the Dispute between us and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and we otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
LOCATION OF ARBITRATION. Arbitration will take place in Milwaukee, Wisconsin. You and we agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the Wisconsin state or federal courts located in Waukesha County, Wisconsin have exclusive jurisdiction and you and we agree to submit to the personal jurisdiction of such courts.
RIGHT TO OPT OUT OF ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER. You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying us in writing within 30 days of the date you first registered for the Platform or 30 days from the date this Agreement was last updated. To opt out, you must send a written notification to us at 4216 N Terraview Dr. Appleton WI 54913 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
f. Governing Law. You and we agree that, other than as set forth under the paragraph entitled “Waiver of Right To Be a Plaintiff Or Class Member In A Purported Class Action Or Representative Proceeding” in Section 4(e) above, if any portion of Section 4(e) entitled “Dispute Resolution” is found illegal or unenforceable, that portion will be severed and the remainder of the Agreement will be given full force and effect. Notwithstanding the foregoing, if the paragraph entitled “Exceptions to Alternative Dispute Resolution” in Section 4(e) is found to be illegal or unenforceable, neither you nor we will elect to arbitrate any Dispute falling within that portion of that subsection that is found to be illegal or unenforceable and such Dispute will be decided by the Wisconsin state or federal courts located in Waukesha County, Wisconsin, and you and we agree to submit to the personal jurisdiction of such courts.
Except as expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of Wisconsin, without regard to choice of law principles.
Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, the enforceability of Section 4(e) entitled “Dispute Resolution” shall be governed by the Federal Arbitration Act.
g. General Provisions. Our failure to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and us with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 4(g) shall be null and void. This Agreement will inure to the benefit of us, our successors and assigns.