Company provides lead generation and communication services between independent Users, enabling them to request, seek, receive and fulfill requests for work through the use of the Platform. You desire to enter into this Agreement for the purpose of accessing and using the Platform.
You acknowledge and agree that Company is a technology services lead and communications enabler that does not provide job services. You do not work for Company at anytime whatsoever in any capacity. All Users are independent entities.
In order to use the Platform, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Company shall be bound by the terms and conditions set forth herein.
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 20) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PLATFORM.
1.1 Company General Operations
Company only provides lead generation and enables communication between independent “Employers”, and independent “Workers” collectively known as “Users”. Employers are independent individuals and/or businesses seeking to obtain (“Tasks” or “Jobs”) services from Workers and are therefore the Employers of Workers. “Workers” are independent individual contractors and/or independent businesses seeking to perform “Jobs” or “Tasks” for Employers. Employers and Workers together are known as “Users” collectively.
Company provides the contact information and skills of workers to employers (“employers”) using the Platform Services (as defined below) for the fulfillment of Jobs or Tasks. The Platform Services enable workers and employers to request, seek, receive and fulfill requests for work through the use of Companies mobile applications. You desire to enter into this Agreement for the purpose of accessing and using the Platform services.
Company does not perform Tasks or Jobs, nor employ Workers to perform Tasks or Jobs. Workers and Employees hereby acknowledge that Company is not responsible for the work performed by Workers in any way, and does not supervise, control, monitor, or direct Workers work in any way. Workers are independent contractors and do not work for Company in any capacity. Company does not control Employers or Workers, both are independent from Company in every way.
Company is not responsible for hiring Workers. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Tasks requested and services provided by Users of the Platform whether in public, private, or offline interactions. Company doesn’t have control over the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, pay for, or any other aspect whatsoever of Tasks, Workers, Employers, nor of the integrity, responsibility, liability, qualifications, safety or any of the actions or omissions whatsoever of any Users. Users accept all risk and liability while using the Platform and use it at their own volition.
All users are independent entities, a User Agreement is formed between users as soon as one user hires another for a job or task. Company is not responsible for, is not a part of, and is not liable in any way for any User Agreement between users, including the quality, working conditions, safety, legality, consequences, financial, background checks, disagreements, breach of agreements, breach of data, non-payments, over-payments, refunds, work performance, work quality, or accidents, criminal activities, or any other liability, even after the work has been completed. Users are to conduct their own checks and verification about each other before entering into an agreement with, hiring, or getting hired, by another user. Users are to have their own insurance to protect themselves.
Since there may be thousands of Workers, Company cannot possibly present every Worker to Employers. Therefore for each job (“Task”) requested by an Employer, Company must use a proprietary algorithm to select a subset of Workers to present to an Employer based on the desired Worker parameters the Employer requested, such as job description, pay rate, skills required, distance from the Employer, job category, and other parameters. By using the platform, Workers and Employers (“Users”) agree and accept any algorithm that is used by Company in selecting and presenting a subset of Workers to Employers on a job by job basis. This algorithm may change without notice. Users accept any method used to measure or calculate distance, hours worked, pay etc, made by the platform and no guarantee is made as to the accuracy of those calculations or measurements.
The Employer has the sole responsibility and the final say as to which Worker, if any, that they choose to hire for any job or task. Company makes no claim or guarantee that every Worker on the platform will ever be hired for any Job or Task, or that any Worker presented will be able to complete a job, or is qualified for any job. Workers should present themselves in the best possible light just like any other job application. Workers need to improve their skills, qualifications, certifications, upload their certification documents and photos demonstrating past jobs they have done to their public area so that potential Employers can view it while selecting who to hire, have a high job performance so that they will get positive feedback and high ratings from Employers so that future Employers will want to hire them, since Employers can see the past ratings, comments, and performance of past jobs done by Workers, and Workers can see similar information about Employers.
The Worker shall not accept any payments, and the employer shall not pay the worker using any other method other than via credit or debit card through the Company app, unless expressly given permission by Company to do so.
1.2 Worker Assistants/Subcontractors
Company must be notified of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company for at least 30 days before initiating any proceeding between the parties. The Employer shall pay their Worker directly for completed Task services through the PSP (Payment Service Provider) from the app only using a credit card at the rates agreed to by the parties in the User Agreement. The Worker assumes full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable state and federal income tax with holdings as to the Worker and all persons engaged by the Worker in the performance of the Task services.
Company does not guarantee the accuracy or performance of the website or app, or any data generated by them. Company does not guarantee that the app or website will be available 24 hours a day 7 days a week.
1.3 Worker Classification Liability And Taxes
All Users are independent entities and independent contractors. Company is not an employment service and Company is not an employer of any User. Company does not set a Worker’s work hours or location of work, pay rate, pay schedule, or the selection of Jobs they perform. Workers do not work for Company in any capacity. Company is 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 with holdings in connection with your use of Users’ Task services. Company will not provide any equipment, labor or materials needed for a particular Task. Company does not provide any supervision to Users. Company does not perform tasks and does not employ Workers to perform Tasks. Each User acknowledges that Company does not, in any way, supervise, direct, control or monitor a Worker’s work or Tasks performed in any manner. Both Workers and Employers assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Workers and Employers do not have authority to enter into contracts on behalf of Company either expressed or implied.
1.4 User Agreement
Users agree that a contract, the “User Agreement”, is automatically formed when a User agree to the terms of a Task with another User (Ex. Worker accepting a job from an Employer). You agree that Company is not is not a party in this “User Agreement”, and that agreement cannot create employment or any other relationship between Company and any User. You agree that “User Agreement” cannot conflict with the terms of this agreement in general, and does not expand or restrict Company’s obligations or rights under this agreement.
You acknowledge and agree that at the end of a Task or Job, Users may be prompted by Platforms mobile application to provide a rating and a comment about the performance of the other User. You can then optionally provide your ratings and feedback in good faith.
You acknowledge that Company desires that Users have access to high quality services via The Platforms mobile application. In order to continue to receive access to the Platform, you must maintain an average rating by Users that meets or exceeds the minimum average acceptable rating established by Company for your Territory, as may be updated from time to time by Company in its sole discretion (“Minimum Average Rating”). Your average rating is intended to reflect Users’ satisfaction with your “Job”, rather than your compliance with any of Company’s policies or recommendations. In the event your average rating falls below the Minimum Average Rating, Company will notify you and may provide you, in Company’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Company reserves the right to deactivate your access to the Platform. Additionally, you acknowledge that your repeated failure to accept User requests for “Job” while you are logged in to the Platform creates a negative experience for Users of Platforms’s mobile application. If you do not wish to accept User requests for Job Services for a period of time, you agree that you will log off of the Platforms App, or disable your desire for more work, or set your status as busy, from within the app.
Company and its Affiliates reserve the right to use, share and display your ratings and comments in any manner in connection with the business of Company and its Affiliates without your approval. You acknowledge and agree that Company and its Affiliates are distributors (without any obligation to verify) and not publishers of your and User ratings and comments, provided that Company and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Company’s or its Affiliates’ content policies.
You are responsible for the acquisition, cost and maintenance of Your Mobile Devices as well as any necessary wireless data plan; and Company shall make available the App for installation on Your Device. Company hereby grants you a personal, non-exclusive, non-transferable license to install and use the Platform App on Your Device solely for the purpose of using the Platform in the way described in this document. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the Platform’s App (or any data associated therewith) or your login information with any third party or allow any third party to use the app on your behalf. The foregoing license grant shall immediately terminate and you will delete and fully remove the Platforms App from the your Device in the event that you cease to provide Job Services using Your Device. You agree that: (i) use of the App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (ii) use of the App on your Device as an interface with the Platform may consume very large amounts of data through the data plan.
COMPANY ADVISES THAT YOUR DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
You agree that during a task, if your device (Employer or Worker) looses contact with the Platform server for more than a certain amount of time (generally around 10 to 20 minutes more or less), the server will not be able to keep track of the number of hours worked or mileage, so therefore to avoid charging Employers for hours and mileage that cannot be tracked, any tasks related to that Device will be automatically put on hold during the time contact of the device is lost. When a task is put on hold, hours worked and mileage will no longer be tracked or accumulated. When contact with the server has been reseablished, the task can be taken off hold (either manually or automatically) and put back into active Work status. The Platforms server will try to notify all parties involved of any change in Task status. All users have the responsibility to monitor the status of the app to make sure it is in contact with the server at all times while performing a task.
On some devices (especially those with less memory or CPU power), the act of switching to another app, exiting the app, or turning of the device screen, allowing the device to go to sleep, or switching to navigation, while using the Company app, may terminate the connection with the server thus potentially putting any job you are working on into the “On Hold” state mentioned above without your knowledge, or preventing you from getting alerts about new job offers and postings. For this reason it is recommended, to keep the device on a charger at all times, not allow the device to go to sleep, and not switch to a different app while on an active job or task.
3. Location Based Services
You acknowledge and agree that your geo-location information (GPS location) must be provided to the Platform via a Device in order for the platform to operate properly. You acknowledge and agree that: (a) your geo-location information may be obtained by The Platform while the App is running; and (b) your approximate location will be displayed to other Users before and during the execution of jobs or tasks. In addition, Company and its Affiliates may monitor, track and share with third parties Users geo-location information obtained by the App and Device for safety and security, performance monitoring, and testing purposes.
4. Disclosure of your Information
Subject to applicable law, Company and its Affiliates may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies, any information (including personal information (e.g., information obtained about you through any background check) and any Company Data) about you or any Job Services provided hereunder if: (a) there is a complaint, dispute or conflict, including an accident, between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Company’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g. , Company or its Affiliates receive a subpoena, warrant, or other legal process for information); (d) it is necessary, in Company’s or any Affiliate’s sole discretion, to (1) protect the safety, rights, property or security of Company or its Affiliates, the Platform Services or any third party; (2) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Platform Services; (3) to detect, prevent or otherwise address fraud, security or technical issues; (4) to prevent or stop activity which Company or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity); or (e) it is required or necessary, in Company’s or any Affiliate’s sole discretion, for insurance or other purposes related to your ability to qualify, or remain qualified, to use the Platform Services. You understand that Company may retain your personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
Company and its Affiliates may collect your personal data during the course of your application for, and use of, the Platform Services, or may obtain information about you from third parties. Such information may be stored, processed, transferred, and accessed by Company and its Affiliates, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Company’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
During your use of the platform, you agree that all users (both Workers and Employers) must maintain compliance, on their own, with local laws pertaining to the type of services they are providing to other users, as well as their own General Liability Insurance, and/or Professional Insurance, Workers Compensation, or other insurance that provides protection against bodily injury and property damage, errors, and damages in general, to cover your self your Employer and your Employees, and to your and/or third parties at levels of coverage that satisfy the minimum requirements to perform your Task and to operate your self or business and to insure yourself against liability and all claims. This coverage must also include any no -fault coverage required by law in the Territory that may not be waived by an insured. You agree to provide Company and its Affiliates a copy of the insurance policy, policy declarations, proof of insurance identification card and proof of premium payment for the insurance policy upon request. Furthermore, you must provide Company with written notice of cancellation of any insurance policy required by Company, and to immediately stop using the app if you do not have insurance coverage. Company shall have no right to control your selection or maintenance of your policy. You must be a named insured for which a premium is charged, on the insurance policy required at all times. Company does not provide users with insurance, Company is not liable for any damages that may occur during the use of the platform or as a consequence of using it.
During your use of the platform, you agree to maintain workers’ compensation insurance as required by all applicable laws in the Territory, liability and other insurance to protect against accidents, damages, liability, omissions, injuries, errors etc. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself at all, but do so at your own risk.
Company cannot guarantee that any User has complied with local laws pertaining to the type of services they provide, or if they have purchased and have up-to-date insurance policies. Any links to insurance companies located on our site are for convenience purposes only, and do not represent an endorcement of such companies, or that we have any relationship with them. Users agree to verify themselves, that other users have the necessary insurance and qualifications, and compliance with local laws before entering into any user agreement with them.
6. User Sign Up
Before allowing Users to use the platform, Company may at its sole discretion, perform vetting of its Users, including performing an extensive background and compliance checks on each User ranging but not limited to country, county, state, federal, local level, international, and also identity verification using third party services. Users give permission to Company to perform the background checks as often as required in compliance with state and federal laws, and the Fair Credit Reporting Act. Even though Company may perform background checks of its Users, its not required to do so. Company cannot verify the actual identity of Users, or be certain that each User is who they claim to be, and therefore does not assume any liability or responsibility for the accuracy or reliability of its background checks (if any), or identity check results, or any other information provided in relation to the Users identity or other User information presented by the platform.
Company requires Users to operate with caution when contacting and interacting with other Users. As with interacting with people you dont know, use the same common sense to protect your safety and your property when interacting with Users. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM.
User Representations and Warranties
7. Billing and Payment
Users of the Platform contract for Tasks directly with other Users. Company will not be a party to any contracts for Tasks or services. Payment for Task services through the Platform is made directly from the Employer to the Worker through the Company app, and not paid by Company. If a Employer fails to pay a Worker for services provided through the Platform, Company may, in its sole discretion, pay the Worker for such services but Company is not obligated to do so. Notwithstanding the foregoing, Company is not obligated to pay Worker for Employer’s failure to pay for services.
Users of the Platform may be required to provide their credit card and/or bank account details to Company, or a third party designated by Company, and the Payment Service Provider used by Company (the “PSP”). Employers will be responsible for paying the Worker for each Task which will include (i) the pricing terms of the Task agreed between Employer and Worker (“Task Payment”), (ii) any out of pocket expenses agreed with and submitted by a Worker in connection with the Task, (iii) any tip or gratuity, if applicable, (iv) the service charge Company assesses for the use of the Platform, variable based on the Task Payment amount, and (v) the platform fee, which is used to offset Company’s cost of providing Users with customer support, and other various business objectives, and (vi) cancellation fees, if applicable. Workers/Employers will be responsible for paying (i) registration fees (applicable to Worker registrants), (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments, and (iv) for vetting and background checks where permitted, (v) Credit card processing fees (vi) and a non-refundable percentage of the payment goes to Company for the use of their platform. Workers/Employers may also be charged credit card processing fees, and a Service fee.
Employer may be charged, at Companies discretion, a non-refundable cancellation fee if Employer cancels a job more than 5 minutes after a worker has started a job, or if the worker arrives at the job location and the employer does not show up within 15 minutes (no show).
Employer will be charged, at Companies descretion, the full amount of the agreed upon service fee if the worker is on the scene and the employer cancels for any reason, or if the worker determines you have inaccurately stated the working conditions or the amount of or kind of work that needs to be done, or the actual work would result in the final cost being higher than what was agreed, or employer is not present within 15 minutes of the workers arrival.
When Employer pays the worker, Company may deduct a non-refundable percentage of the payment as the Companies service fee for using the platform.
To help prevent fraud and safeguard User information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a temporary charge, or a small amount, may be placed on account associated with the User. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary between $0.01 US to $5000.00 US depending on the estimated value of the task and reimbursements.
Users automatically authorizes Company to provide Employer’s payment details to the PSP for processing of Task Payments, out of pocket expenses, tips, etc owed to Worker, and the service charge owed to Company for the use of the Platform. Worker may ask for partial payment at anytime during a task. Upon cancellation of a Task before its completed, the Employer may be changed a cancellation fee, platform fee, and also for the amount of hours/miles the Worker actually worked on the task before it was canceled, and/or a percentage of the total agreed upon Task price, as set forth in the Task pricing terms or if you agree to perform a Task but fail to complete it, as may be set forth in the Task pricing terms.
Company reserves the right, in its sole discretion (but not the obligation), upon request from Employer or Worker or upon notice of any potential fraud, unauthorized charges or other misuse of the Platform, to (i) place on hold any Task Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
All payments between users must be paid through the app and through the PSP as indicated on the Platform. No payments of cash or other wise outside of the PSP shall be made. Users agree to notify Company of any offers of payments outside of the platform. Company reserves the right to terminate the account of any User who attemps to make payments outside of the platform.
A percentage of each payment will be deducted from each payment and paid to Company for the use of its platform. This percentage amount may change from time to time, and may be negotiated with each worker on a case by case basis, or the default percentage is used (which may change from time to time without notice).
Users of the Platform will be liable for any taxes (including VAT, if applicable) required to be paid on the Task services provided under the Agreement (other than taxes on Company’s income).
The Platform is only a venue for connecting Users. Because Company is not involved in the actual contact between Users or in the completion of the Task, in the event that you have a dispute with one or more Users, you release Company and its affiliates (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, present, or future, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS PLATFORM.
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.”
You agree that you release Company and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims and liabilities resulting from, accidents, damages, omissions, injuries, crimes committed by Users, errors, fraud, that occur during the use of the platform, or as a result of using the platform.
9. Public Areas; Acceptable Use
The Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, 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.
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 Company staff, or use information learned from the Platform or during the performance of Tasks to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of any other User or Company staff outside of the Platform.
Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Platform.
Use the Platform for any purpose, including, but not limited to posting or completing a Task, 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.
Users may not 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 Task 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 Task 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 Company, without the prior written consent of Company.
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 Company.
Upload content to the Platform 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 exploit people under the age of 18 in an abusive, violent or sexual manner.
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 or contact information of other Users by electronic or other means.
Use the Platform or the Task services in violation of this Agreement.
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 Company’s 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 Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
10. Termination and Suspension
Company may terminate, limit or suspend your right to use the Platform in the event that 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.
Company reserves the right to forcefully terminate any particular Task, at its sole discretion, that it deems to be in conflict with its core values, dangerous, illegal, questionable, or for any other reason whatsoever. If Company forcefully terminates a Task, there will be no further payments or refunds to any party for that particular task.
If Company terminates, limits, or suspends your right to use the Platform as a Employer for a User Breach, you will not be entitled to any refund of 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, limiting, or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing arbitration, criminal, and injunctive redress in accordance with Section 20.
Even after your right to use the Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Platform at its sole discretion for any reason. Except for refundable fees you have advanced to Company (if any), Company is not liable to you for any modification or discontinuance of all or any portion of the Platform. Notwithstanding anything to the contrary in this Section 8, Company has the right to restrict anyone from completing registration as a Worker if Company believes such person may threaten the safety and integrity of the Platform, or if, in Company’s 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. 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.
11. Account, Password, Security, and Mobile Phone Use, Texts and Calls
You must register with Company and create an account to use the Platform. You are the sole authorized user of your account. You will create and use a password that consists of lower case and upper case letters, numbers, and special characters with a total length of at least 6 characters. You are responsible for maintaining the confidentiality of any password and login username provided by you or Company for accessing the Platform. You are solely and fully responsible for all activities that occur under your password or account. Company has no control over the use of any User’s account and expressly disclaims 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 Company 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 (including prerecorded and/or by automatic telephone dialing systems, recording communications with other Users for legal reasons, and call proxies services used to concele your phone number from other users for safety reasons) in order to (a) perform and improve upon the Platform, (b) facilitate the carrying out of tasks through the Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Tasks, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming tasks and/or in follow up to any push notifications delivered through our mobile application. Standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages or calls from us by modifying your account settings on the Site. You understand that we may send you a text or call confirming any opt-out by you.
12. Your Information and Likeness
“Your Information” is defined as any information and materials you provide to Company or other Users in connection with your registration for and use of the Platform, including without limitation that posted or transmitted for use in Public Areas, or your certificates, credentials, photos, or other media demonstrating your capability of work that you permit other Users of the platform to see by uploading it to the 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, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to Company 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 child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancel bots 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 Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers; and (i) will not contain advertisements, phone numbers, or links of any kind.
The Platform hosts User Generated Content relating to reviews and ratings of specific Workers (“Feedback”). Such Feedback is User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Employer should undertake their own research to be satisfied that a specific Worker is the right person for a Task. You agree that Company is not liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Company do so.
You hereby grant Company 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 Worker who provides or uploads to Company any video, recording, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
Use any videotape, film, record or photograph that such Worker provides to Company or that Company takes of Worker, and use, reproduce, modify, or creative derivatives of such Worker picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”), in and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such Worker in connection with the Platform.
Reproduce in all media any recordings of such Worker’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Platform.
Use, and permit to be used, such Worker’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Platform in any media.
Use, and permit to be used, such Worker’s name and identity in connection with the Platform.
Each Worker hereby waives all rights and releases Company 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 Worker’s identity, likeness or voice in connection with the Platform.
Each Worker acknowledges that Company shall not owe any financial or other remuneration for using the recordings provided hereunder by such Worker, either for initial or subsequent transmission or playback, and further acknowledges that Company is not responsible for any expense or liability incurred as a result of such Worker’s recordings or participation in any recordings, including any loss of such recording data.
13. Links to Other Websites
The Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by Company of those sites or their content. They are provided as an information service, for reference and convenience only. Company does 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 Company endorses 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.
As part of the functionality of the Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Platform; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Platform. You will have the ability to disable the connection between your account on the Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Platform. At your request made via e-mail to firstname.lastname@example.org, Company will deactivate the connection between the Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
14. 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 Company, excluding User Generated Content that Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns 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 Company’s 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 the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks owned by Company. 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.
15. Copyright Complaints and Copyright Agent
Company respects the intellectual property of others, and expects 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 email@example.com
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 Company 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 (Internet address) 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.
16. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
17. 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. COMPANY MAKES 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. COMPANY DOES 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 COMPANY 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 COMPANY NOR ITS 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 TASK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE Platform. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE Platform IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS 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 EMPLOYER MAY USE TO EXPEDITE COMPANY SELECTION, EACH EMPLOYER IS RESPONSIBLE FOR DETERMINING THE TASK AND SELECTING THEIR WORKER AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A EMPLOYER AND DOES NOT RECOMMEND ANY PARTICULAR WORKER. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY WORKER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE OR CRIMINAL BACKGROUND OR IDENTITY. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY EMPLOYER REGISTRATION OR LICENSE OR CRIMINAL BACKGROUND OR IDENTITY.
18.1 No Liability
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS 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 COMPANY, 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 COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION, OTHER THAN PURSUANT TO THE HAPPINESS PLEDGE.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS 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 TASK 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.
COMPANY DOES 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 COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS 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 THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
18.2 COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL OF SERVICE ATTACK, VIRUSES, HACK, DATA BREACH, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT OUR SERVERS, APP, OR YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE, APP, OR THE SERVICE OR ITEMS OBTAINED THROUGH THE WEBSITE OR THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
IN NO EVENT WILL COMPANY 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 SERVICES OR ANY WEBSITES OR APP ASSOCIATED WITH IT, 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.
USERS SHOULD NOT ASSUME ANY LEVEL OF PRIVACY WHEN SUPPLYING INFORMATION TO THE PLATFORM, THE PLATFORM IS USED AT THE SOLE RISK OF THE USER, COMPANY ASSUMES NO LIABILITY TO THE SAFETY OF THE INFORMATION SUPPLIED TO IT BY ITS USERS.
We are committed to protecting the data of the Platform’s community. Even though we take reasonable precautions to protect your data and information, no security measures can be 100% secure, therefore we cannot guarantee the security of any information you supply to us, and accept no liability with regards to it. You should have no expectation of privacy, any information you supply to us is at your own risk.
You hereby agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, successors and assigns, subsidiaries, and 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 or Task Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law the rights of any User or third party (iv) 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. Company reserves 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 the written consent of Company.
20. Dispute Resolution – Arbitration
(a) Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Company (each a “Claim” and collectively “Claims”), you and Company agree to first attempt to negotiate any Claim (except those Claims 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 address you registered with, with an email copy to the email address you have provided to Company. Company’s address for such notices is LittleSideJobs, LLC., 909 Broadway St, Suite 126, Sheridan, WY 82801 Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Company may initiate arbitration while engaging in the informal negotiations.
(b) Binding Arbitration.
YOU AND COMPANY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate, contained in Section 20, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Company. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the Platform, services, Tasks, your relationship with Company, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by Company, breach of any express or implied contract or breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief.
You and Company agree that any arbitration will be limited to the Claim between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Company 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. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Company, which are addressed separately in Section 20 (d) below. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent allowed by law: (1) you and Company agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Company agree that any such Claim will be resolved in arbitration on an individual basis only (that is, to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA Waiver or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement 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 or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Workers or Employers, but is bound by rulings in prior arbitrations involving the same Worker or Employer to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
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) subject to the following modifications:
(i) If Company initiates arbitration under this Arbitration Agreement, Company will pay all AAA filing and arbitration fees. If a Employer or Worker, however, files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD 100, Company will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); (ii) For Claims that (A) are based on an alleged employment relationship between Company and the Worker; (B) arise out of, or relate to, Company’s actual or threatened deactivation of a Worker’s User account; (C) arise out of, or relate to Company’s actual or threatened termination of a Worker’s Agreement with Company; or (D) arise out of, or relate to, monies earned or paid for Task services (as defined above, including the service chargeor Trust and Support Fee), tips, bonuses or monies owed by Employers or Company to a Worker, other than disputes relating to referral bonuses, other Company sponsored promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Worker Claims”), Company shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Company pursuant to the fee provisions above). However, if you are the party initiating the Worker Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Employers, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection 20(e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. (iii) Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). (iv) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Unless you and Company agree otherwise, any arbitration hearings between Company and a Worker will take place in the state of Wyoming, and any arbitration hearings between Company and a Employer will take place in the state of Wyoming. If AAA arbitration is unavailable in that state, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 20(d) is deemed unenforceable by a court of competent jurisdiction; and
Claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in Section 20(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
You may opt out of the Arbitration Agreement by notifying Company in writing within thirty (30) days of the date you first registered for the Platform or thirty (30) days from the date this Agreement was last updated. To opt out, you must send a written notification to Company at Berkshire Computing, LLC., 909 Broadway St, Suite 126, Sheridan, WY 82801 Attention: Legal, 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.
21. Governing Law
Except as provided in Section 20 or expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of Wyoming, without regard to choice of law principles.
22. Special Promotions
Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified or removed at any time by Company without advance notification and the liability of any of Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to Section 18 of these Terms of Service, including but not limited to Section 18 of these Terms of Service.
23. No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
24. General Provisions
Failure by Company 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 Company 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 shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
25. Licensed Professionals
Company does not oversee, monitor or supervise the posting, scoping or performance of tasks. Accordingly, Employers must determine for themselves whether a Worker is qualified to perform the specific Task at hand. Employers may wish to consult their state or local requirements to determine whether certain Tasks are required to be performed by a licensed professional. In certain cities, Employers can now find licensed professionals who carry the necessary state- or local-level license to perform such Tasks (“Licensed Workers”) on the Platform. Licensed Workers will be explicitly identified as licensed professionals and only Workers with such designation have been verified by Company to have a license. You can read more about which cities have Licensed Workers, how Company vets Licensed Workers and helpful tips on hiring Licensed Workers by checking out the Employer Support Center Article on Licensed Workers which is incorporated by reference into these Terms of Service.
26. Changes to this Agreement and the Platform