Encircle Labs Platform Agreement
Last Modified: July 21, 2019
PLEASE READ THIS ENCIRCLE LABS PLATFORM AGREEMENT (“AGREEMENT”) CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT.
This Agreement is a contract between you and Encircle Labs, Inc. (“Company,” “we,” or “us”) and, to the extent expressly stated, our affiliates. By completing the Account registration process or clicking to accept or agree to this Agreement, you accept and agree to be bound and abide by this Agreement.
As used in this Agreement, the following terms have the definitions indicated. Defined terms include both the singular and plural. Capitalized terms not defined below have the meanings provided elsewhere in the Terms of Service.
As used in the Terms of Service, whether expressly stated or not, the term “including” means “including, without limitation,” and any terms listed as being so included are provided as examples and are not meant to be an exhaustive or exclusive list of included terms.
“Account” means the record in our systems created for the purpose of allowing a Member to use the Platform, which incorporates (i) all information provided by the Member, and (ii) the type of membership.
“App” means the mobile application made available by us in connection with the Platform.
“Applicable Law” means any relevant foreign, federal, state, or local: statute; common law; ordinance; treaty; administrative rule or regulation; court order or opinion; or official directive, interpretation, guidance, or determination issued by an applicable government agency. The term includes the written directives of any arbitrator with legal or contractual authority over any party to the Terms of Service.
“Client” means a Person that wishes to use the Platform in connection with a Project or Contractor Services.
“Confidential Information” means any confidential, sensitive, non-public, or proprietary information relating to the Terms of Service, a User, or a Project that is not known to the general public. Confidential Information does not include information that: (i) is generally available to or known by third parties as a result of no act or omission of us, you, or any other Member; (ii) is lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (iii) was already known by the receiving party prior to receiving it from the disclosing party and was not received from any Person in breach of that Person’s obligations of confidentiality; or (iv) was independently developed by a Person without the use of another Person’s Confidential Information.
“Contractor” means a Person in the construction or remodeling business that wishes to use the Platform in connection with providing Contractor Services to a Client in order to complete a Project.
“Contractor Services” means the services, duties, and obligations as mutually agreed by a Contractor and a Client under a Project Agreement. Contractor Services may include architecture, landscaping, construction and general contractor work, or similar services. We reserve the right to limit, prescribe, prohibit, or otherwise define what Contractor Services may be provided in connection with use of the Platform.
“Digital Project Services” means the services provided by the Company through the Platform related to: (i) facilitating the electronic signing of Project Agreements, (ii) digitally storing Project Files, and (iii) facilitating the sharing of certain documents and information between a Client and a Contractor.
“Dispute” means any controversy, dispute, demand, claim, or cause of action, including with respect to the interpretation and scope of the Terms of Service.
“Effective Date” has the meaning given in Section 12.
“Feedback” has the meaning given in Section 3.7.
“Intellectual Property Rights” means any and all patents, copyrights, trademarks, trade secrets, trade dress, marks, moral rights, rights of attribution or integrity or other intellectual property or proprietary right arising under the laws of any jurisdiction (including all claims and causes of action for infringement, misappropriation or violation thereof and all rights in any registrations and renewals).
“Member” means a Contractor or Client that has registered for an Account that has been accepted by us.
“Milestone” means an action or event in connection with a Project, as set forth in a Project Agreement, marking the completion of a particular stage, the accomplishment of a specified result, or the delivery of certain Work Product.
“Payment Services” means the services provided by the Company through the Platform related to the processing of payments from Clients to Contractors for Contractor Services related to a Project.
“Person” means any individual, sole proprietorship, corporation, limited liability company, partnership, or other legal entity.
“Platform” means the technologies, processes, and services furnished by us to Members pursuant to the Terms of Service, which is comprised of the Website, the App, and related services.
“Profile” means a record of information about a Member created in connection with such Member’s Account that may be displayed to Members or Users on the Platform or any other website or application operated by us in connection with the Platform.
“Project” means a planned set of construction, remodeling, renovation, or similar tasks for which a Client hires a Contractor.
“Project Agreement” means the written contract between a Client and a Contractor governing the provision of Contractor Services for the purpose of completing a Project.
“Project File” means the documents and information submitted to the Platform in connection with a specific Project, including the Project Agreement and work verification photographs.
“Substantial Change” means a change to the Terms of Service that reduces your rights or increases your responsibilities.
“User” means a Person accessing and interacting with the Platform, regardless of whether such Person becomes a Member.
“Verification Network” means the list of industry professionals maintained by the Company who may review Project documentation at our request for the purpose of determining whether the Work Product meets common industry standards and a Milestone has been met in accordance with the Project Agreement.
“Website” means www.encirclelabs.com and all related websites.
“Work Product” means any tangible or intangible results or deliverables that a Contractor agrees to create, perform, provide, or deliver to a Client as a result of performing Contractor Services under a Project Agreement.
“Work Verification Services” means the services provided by the Company through the Platform related to: (i) submission of photographic or other media documentation to the Verification Network for review; (ii) review of such submitted documentation of Work Product; and (iii) determining whether the Work Product meets common industry standards and a Milestone has been met in accordance with the Project Agreement.
To register for an Account, you must complete a Profile, which you consent to have shown to other Users, Members, or the public in accordance with any privacy settings available in the Account. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Platform or otherwise provide to us. You further agree to update your information as needed to maintain its truthfulness, accuracy, and completeness. You agree not to provide any information about your identity, location, properties, business or skills, or the services you or your affiliates, subcontractors, or agents provide, that is or becomes false or misleading. For the avoidance of doubt, for the entire time your Account is active, you have an ongoing obligation to ensure all information contained in your Profile and otherwise provided by you on the Platform is true, accurate, and complete.
We offer different Account types for Clients and Contractors. We reserve the right to revoke the privileges or access of any Account type or your ability to register for other Account types without notice if, in our sole discretion, false or misleading information has been provided to us. We reserve the right to create new Account types or remove or consolidate existing Account types.
Clients are generally Persons who have engaged Contractors who use the Platform to assist with certain aspects of a Project. A Client Account allows the Member to electronically sign a Project Agreement, upload certain documents or records relating to a Project, review certain documents or information pertaining to a Project, and make payments to a Contractor. A Client Account may also provide the Member with archival access to Platform records relating to completed Projects.
Contractors are generally Persons in the construction and remodeling industry using the Platform to plan and manage certain aspects of Projects and configure job templates to include milestones, approval settings, and payment schedules. A Contractor Account allows the Contractors to upload certain documents or records relating to a Project, including the Project Agreement, photographs or other media of completed or in-progress work, and invoices; manage certain aspects of any active Projects; and request payments.
If you create and register an Account on behalf of a corporation, partnership, or any other type of business entity, you represent and warrant (in addition to the representations and warranties made in Section 5) that you are authorized to do so and that such entity is fully responsible and liable for any action of any employee, officer, director, or agent of the entity who uses the entity’s Account. In that event, “you” and “your” as used in the Terms of Service will refer to you and that entity.
You will take commercially reasonable measures to ensure that only individuals who are properly authorized to enter contracts on your behalf (such as officers, directors, agents, or expressly authorized employees) use your Account. You agree to be responsible for any Project Agreements entered into by you through use of your Account. You will be solely responsible, and assume all liability, for (i) paying your employees, independent contractors, or any other Person performing work on your behalf in connection with Projects in accordance with Applicable Law; and (ii) collecting, withholding, or paying any applicable taxes incurred as a result of any such Projects.
Account Verification and Security
When you register for an Account and from time to time thereafter, your Account may be subject to verification, including validation against third-party databases of any information or documentation you provide to us. When requested, you must provide us with information about you and, if applicable, your organization including: identity; location; credit history; professional certifications, associations, or memberships; work history; or training and education. You authorize the Company to make inquiries, directly or through third parties, to validate such information, though we are under no obligation to do so.
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You agree that we may assume that any person using the Platform with your username and password either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for your Account. You also agree not to use the Account or username and password of another Member if you are not authorized by that Member or if such use would violate the Terms of Service.
Use of the Platform
The Platform is a connected set of technologies, processes, and services that we provide to Members, subject to the Terms of Service, mainly through the Website and App, and which are designed to enhance or facilitate parts of the contracting, work verification, and payment aspects of construction or remodeling projects. The Website and App may offer different functionalities, and we make no representations that functionalities available on one will be available on the other.
For the avoidance of doubt, the Company does not offer or sell goods or Contractors Services or provide listings of Projects; all Projects are arranged directly between Clients and Contractors. You acknowledge, agree, and understand that we offer no warranty with respect to any goods or Contractor Services provided in connection with any Project.
Digital Project Services
In order to use the Platform for any Project, the Client and Contractor must have or create Member Accounts, and the Contractor must upload or otherwise create a digital Project Agreement for the Project that both parties must electronically sign through the Platform. By electronically signing a Project Agreement on the Platform, you acknowledge, agree, and understand that (a) you are thereby deemed to have executed such contract, effective on the date you submit such electronic signature on the Platform, pursuant to the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001 et seq., as amended from time to time (the “E-Sign Act“); and (b) you are able to electronically receive, download, and print the Project Agreement.
As part of the Digital Project Services, for so long as you maintain your Account, the Company will store, maintain, and backup your Project Files and will provide you with access to the Project Files for all your past and current Projects. When your Account is closed or terminated, you will have the right to request that we provide you copies of your Project Files, provided that you make any such request within thirty (30) days of the closing or termination of your Account. We shall have no obligation to continue storing, maintaining, or backing up such Project Files except to the extent required by Applicable Law. After the closure or termination of both the Client and Contractor Accounts associated with a Project, the Company will retain ownership of all documents and information in the related Project File, provided that such documents and information are anonymized, aggregated, or otherwise disassociated with the Client and Contractor and do not contain sensitive or personal information.
You agree that you are solely responsible for complying with any laws or regulations applicable to the data you provide through the Platform.
Work Verification Services
At certain stages of a Project, or upon the completion of any Milestone, the Contractor shall take or cause to be taken photographs or other media of the Work Product and upload such photographs or other media to the Platform. You agree not to upload any inaccurate, incomplete, misleading, or fraudulent photographs or media.
The Company will share the photographs or other media with the Verification Network for review to determine whether the Work Product meets common industry standards and a Milestone has been met in accordance with the Project Agreement. Upon completion of this review process, the Company will notify the Client and Contractor of the Verification Network’s determination. Upon determination that a Milestone has been met, the Client shall become obligated to make the applicable payment set forth in the Project Agreement.
You acknowledge, agree, and understand that the Work Verification Services described in this subsection only determine whether the Work Product appears to have been completed in accordance with common industry standards and a Milestone has been met in accordance with the Project Agreement; any determination that a Milestone has been met does not constitute a certification, an opinion, or an approval of the quality of the Work Product or manner in which it was completed. If you are a Client, you hereby agree that the Work Verification Services do not constitute any express or implied warranty that the Work Product will be free from nonobvious defects or faults.
Any disputes between you and the Company regarding the results of Work Verification Services shall be resolved exclusively through binding arbitration as set forth in Section 10.
Upon our notification that a Milestone has been met in accordance with Section 3.3, the Client shall receive notification for the associated milestone payment in accordance with the Project Agreement. The milestone payments will occur automatically in accordance with the ACH Authorization. In the event of a dispute between Members over payments required by a Project Agreement, the Members agree to resolve the dispute in accordance with the Project Agreement and without the involvement of the Company.
Payment Services Terms for Clients
If you are a Client, you hereby authorize and instruct the Companyto initiate an ACH milestone payment in accordance with the Terms of Service, and you acknowledge, agree, and understand that such payment instruction is irrevocable to the fullest extent permitted by law.
To use the Payment Services, you must complete and return to us a completed ACH Authorization, available at https://encirclelabs.com/ach-debit-authorization/ .
Payment Services Terms for Contractors
If you are a Contractor, you hereby appoint the Company as your limited purpose agent authorized to receive payments on your behalf for Contractor Services provided to Clients, and to deliver such payments to you. Accordingly, you agree that any payment received by us on your behalf constitutes receipt by you and satisfies the applicable Client’s obligation to make such payment to you, even if we do not deliver such payment to you.
Relation to the Company
You acknowledge, agree, and understand that the Company is not a party to the Project Agreement or any other dealings between Members. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Project Agreement with another Member. The Company does not guarantee the truth or accuracy of: Members’ User Contributions on the Website; communications made through the Platform; or the documents or information submitted to the Platform. You acknowledge, agree, and understand that the Company does not, in any way, supervise, direct, or control Contractors or Contractors’ work and is not responsible for any Work Product. The Company makes no representations about and does not guarantee, and you agree not to hold us responsible for, the quality, safety, or legality of any Contractor Services; the qualifications, background, or identities of Members; the ability of Contractors to deliver the Contractor Services; the ability of Clients to pay for the Contractor Services; statements or posts made by Users; or the ability or willingness of a Member to actually complete a transaction or Project.
Payment of Taxes and Commissions
The Company will have no responsibility for determining the necessity of, collecting, withholding, or remitting any taxes applicable to any payments made pursuant to any Project.
Our Services Fee
A Contractor shall pay the Company a services fee for the Platform services in accordance with the terms of this Section. A services fee to be paid to the Company in the amount of 2% will be automatically deducted from each client payment to the contractor for the services provided by the Company or 2% of the total Contractor Services contracted dollar amount.
In addition to any other remedies available to us under the Terms of Service or Applicable Law, if you fail to pay any amounts you owe to us or circumvent the automatic payment process, we may suspend or terminate your Account or your access to Project Files. The exercise of any of our rights under this subsection shall not waive any other rights under the Terms of Service or Applicable Law.
Feedback and User Contributions to the Website
You acknowledge, agree, and understand that Feedback benefits the Platform, all Members, and the efficiency of the Website. Accordingly, you authorize the Company to allow the posting of Feedback relating to you, including Feedback about your work or skills. You further authorize us to compile, aggregate, or highlight User Contributions relating to you as we may determine to be beneficial to the operation of the Website and the promotion of the Platform. We may also make Feedback pertaining to you available to other Members. You acknowledge, agree, and understand that the Company does not monitor, influence, contribute to, or censor Feedback.
To the fullest extent allowed by Applicable Law, data entered into the Platform that is not associated with any individual and is not proprietary corporate information shall be the property of the Company and may be used by us for any business purpose. We reserve our rights with respect to such data even after you close your Account. Such information may include anonymized or aggregate information about Projects, non-confidential information about Projects, User Contributions, or pictures (except for pictures that contain sensitive or Confidential Information). You agree that you have no rights or interests in such information and shall make no claims against us with respect to such information.
Representations and Warranties
The Platform and related services are provided “as is” and on an “as available” basis. We make no warranties or representations with regard to the Platform, its related services, or any activities or items related to this Agreement or the Terms of Service. To the maximum extent permitted by Applicable Law, the Company disclaims all express and implied conditions, representations, and warranties, including the warranties of merchantability, accuracy, fitness for a particular purpose, title, and non-infringement. Some jurisdictions may not allow for all of the foregoing limitations on warranties, so to the extent some or all of the above limitations may not apply to you, Section 10 states your sole and exclusive remedy against the Company with respect to any non-conformances or dissatisfaction.
You represent and warrant that you will conduct your activity on the Platform in compliance with Applicable Law. By registering an Account, you represent and warrant that you are at least eighteen (18) years of age and meet all eligibility requirements set forth in the Terms of Service or otherwise on the Platform.
You represent and warrant that you have read all applicable Terms of Service.
You represent and warrant that you have all appropriate ownership or other rights or licenses to the documents and information you submit to the Platform.
If you are a Client, you represent and warrant that with respect to any Project, you are either the property owner or the representative of the property owner and that you have all requisite authority and legal right to enter into the Project Agreement and make decisions regarding the Project.
Contractual Relationship Between Members
If you and another Member decide to enter into a Project Agreement, it is a contractual relationship directly between you and such other Member. Members have complete discretion with regard to whether to enter into a Project Agreement and the terms of any such Project Agreement. You acknowledge, agree, and understand that we are not a party to any Project Agreement to provide renovation or construction services and that the formation of a contract between Members will not, under any circumstance, create an employment relationship, partnership, or other joint venture, between the Company and any Member.
You agree not to enter into an agreement that conflicts with your rights or obligations under the Terms of Service, unless expressly authorized by the Terms of Service or by us in writing.
If a Dispute arises between you and another Member with respect to the Terms of Service, you acknowledge, agree, and understand that we will not provide, and are not obligated to provide, any assistance with such Dispute beyond what is provided in the Terms of Service.
In connection with a Dispute between you and another Member, if you intend to obtain an order from any arbitrator or any court that might direct the Company to take or refrain from taking any action with respect to an Account, you must give us at least five (5) business days’ prior notice of the hearing on such order and must include any reasonable provisions in the order that are requested by us for the purpose of mitigating any expenses, damages, or losses that might result from our compliance with such an order.
Limitation of Liability
We are not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
- your use of or your inability to use the Platform;
- delays in the delivery of any goods or Contractor Services, including Project delays caused by such delays in the delivery of goods;
- delays or disruptions in the Platform or related services;
- nonobvious defects in Contractor Services, including defects or errors in Work Product or goods provided by Contractors pursuant to any Project, to the extent such defects or errors could not reasonably be detected in the photographs submitted to the Platform;
- viruses or other malicious software obtained by accessing, or linking to, the Platform;
- glitches, bugs, errors, or inaccuracies of any kind in the Platform;
- damage to your hardware device from the use of the Platform;
- the content, actions, or inactions of other Users;
- a suspension or other action taken with respect to your Account;
- loss of power, loss of business operation, building damage, personal injury, or fire or flood damage caused by use of goods sold by Contractors in connection with any Project;
- your reliance on the quality, accuracy, or reliability of Profiles, User Contributions, and Feedback (including their content, order, and display); and
- your need to modify practices, content, or behavior, or your loss of, or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF THE COMPANY, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY MEMBER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY US WITH RESPECT TO THIS AGREEMENT. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY IN CONNECTION WITH ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
In addition to the recognition that we are not a party to any contract between you and any other Member, you hereby release the Company, our affiliates, and our respective officers, directors, agents, subsidiaries, and employees from all claims, demands, and damages (actual or consequential) of every kind and nature, known and unknown, arising out of or in connection with any Dispute between you and another User. This release includes, without limitation, any Disputes regarding the performance, functions, and quality of Contractor Services provided to a Client and refund requests based upon such Disputes.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE SECTION 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.”
This release will not apply to a claim that we failed to meet our obligations under the Terms of Service.
You will indemnify, defend, and hold harmless the Company, our affiliates, and our respective directors, officers, employees, representatives, and agents for any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you, a third party or another User relating to or arising out of: (a) the use of the Platform by you or your agents, including any payment obligations or default incurred through use of the Platform; (b) any Project Agreement entered into by you or your agents, including the classification of you as an independent contractor, the classification of the Company as an employer or joint employer of you, and any other claims relating to employment in connection with such engagement; (c) failure to comply with the Terms of Service or Applicable Law by you or your agents; (d) negligence, willful misconduct, or fraud by you or your agents; and (e) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this section, your agents include any Person who has apparent authority to access or use your Account as demonstrated by using your username and password.
You should review this section carefully. To the maximum extent permitted by applicable law, you are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court as permitted by this Agreement and Applicable Law.
For any and all Disputes between you and us, including the interpretation and scope of this section and the arbitrability of such a Dispute, relating to the Terms of Service or your use of the Platform, you and we agree to resolve any such Dispute exclusively through binding and confidential arbitration. For the avoidance of doubt, this section does not apply to Disputes exclusively between you and another Member with respect to a Project Agreement. In the event of any such Dispute between you and us, the complaining party must notify the other party in writing. Within thirty (30) days of such notice, you and we agree to use reasonable efforts to attempt to resolve the Dispute in good faith. If you and we do not resolve the dispute within thirty (30) days after such notice, the complaining party may seek remedies exclusively through arbitration. Except as otherwise expressly provided by Applicable Law, the demand for arbitration must be made within a reasonable time after the Dispute in question arose, and in any event within two years after the complaining party knew or should have known of the Dispute.
The arbitration will take place in San Mateo, California. As used in this section, “we” and “us” mean: the Company; its subsidiaries, affiliates, predecessors, successors, and assigns; all of its and their respective employees, officers, directors, agents, and representatives; and any third party providing any product, service, or benefit in connection with the Website or the Terms of Service if such third party is named as a co-party with us in any Dispute subject to this section.
The arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by the terms of this section, and unless otherwise agreed upon by you and us in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
Notwithstanding the agreement to arbitrate provided in this section, you and we may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in San Mateo, California in order to maintain the status quo pending arbitration, and you and we hereby agree to submit to the exclusive personal jurisdiction of such courts for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate.
Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN ONLY THAT PARTY’S CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) we will pay as much of your filing and hearing fees in connection with the arbitration as required by the Rules and Procedures and/or as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by Applicable Law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of this Agreement, the arbitrator may award any individual relief or individual remedies that are expressly permitted by Applicable Law; and (h) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by Applicable Law.
This section will survive termination of this Agreement as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (a) and (b) of the preceding paragraph (prohibiting arbitration on a class or collective basis), if any part of this section is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this section will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If, however, either subpart (a) or (b) of the preceding paragraph is found to be invalid, unenforceable, or illegal, then the entirety of this section will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a Dispute proceeds in court rather than in arbitration, the Dispute will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the city where the Company is located.
For more information on the AAA, the Rules and Procedures, and the process for filing an arbitration claim, you may call the AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates will survive and continue in full force and effect. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or us from any obligations incurred prior to termination of this Agreement or that may accrue thereafter in respect of any act or omission prior to such termination.
Choice of Law
The Terms of Service will be governed by and construed in accordance with the laws of the state of California, without regard to its conflict of law provisions. However, notwithstanding this provision, the arbitration terms provided in Section 10 are governed by the Federal Arbitration Act.
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and us relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, whether written or oral, to the extent they relate in any way to the subject matter hereof and thereof. Even though we drafted the Terms of Service, you represent that you have had ample time to review and decide whether to agree to the Terms of Service, including time to consult with legal counsel. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or us because of the authorship of any provision of the Terms of Service.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of that party.
You may not assign this Agreement or the other Terms of Service, or any of your rights or obligations hereunder, without our prior written consent in the form of a written instrument signed by a duly authorized representative of the Company. For the purposes of this provision, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles. The Company may freely assign this Agreement and the other Terms of Service without your consent or the consent of any other User. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors and permitted assigns of the parties.
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party (collectively, “Force Majeure Events”). The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if a Force Majeure Event occurs and its effect continues for a period of sixty (60) days, either party may give to the other a thirty (30) day notice of termination. If, at the end of the thirty (30) day period, the effect of the Force Majeure Event continues, this Agreement and the other Terms of Service will terminate.
Agreement Modification; Term and Termination
Subject to the conditions set forth herein, the Company may, in its sole discretion, amend this Agreement or the Terms of Service at any time by posting a revised version on the Website. We will provide reasonable advance notice of any amendment that includes a Substantial Change by posting the updated Terms of Service on the Website, providing notice on the Website, and/or sending them to you by email. If the Substantial Change includes an increase to fees charged by the Company, we will provide at least thirty (30) days’ advance notice of the change. We are not obligated to provide any advance notice for changes resulting in a reduction in fees whether temporary or permanent. Any revisions to the Terms of Service will take effect on the noted effective date or, if no effective date is specified, on the date such revised Terms of Service are posted (each, as applicable, the “Effective Date”).
By logging into your Account and using the Platform or related services after the Effective Date, you agree to be bound by the Terms of Service as revised pursuant to this section. If you agree to the Terms of Service on behalf of an entity, you represent and warrant that you have the authority to bind that entity to the Terms of Service.
No modification or amendment to the Terms of Service will be binding upon us unless in a written instrument signed by a duly authorized representative of the Company. For purposes of this provision, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles. This provision does not apply to amendments to the Terms of Service posted by us on the Website as described above in this section.
Unless both you and we expressly agree otherwise in writing, either party may terminate this Agreement in its sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to email@example.com. In the event you properly terminate this Agreement, your right to use the Platform, including your access to your Account, will be automatically revoked, and your Account will be closed.
Because we are not a party to any Project Agreement between Members, you acknowledge, agree, and understand that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise affect any Project Agreement entered into between you and other Members. In order to effectively terminate the Terms of Service, you must not have any open Projects. If you attempt to terminate this Agreement while having one or more open Projects, (a) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have been completed or otherwise terminated; (b) we will continue to perform those services necessary to facilitate any open Project or related transaction between you and another Member; and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Projects, whichever is later, to us under the Terms of Service and to any Members in connection with Projects.
Without limiting our other rights or remedies, we may, but are not obligated to, deny or refuse your registration or temporarily or indefinitely revoke access to the Platform and refuse to provide any or all related services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Members, or us, may be contrary to the interests of the Member community, or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Platform under the same Account or a different Account or reregister under a new Account without our prior written consent.
You acknowledge, agree, and understand that the value, reputation, and goodwill of the Platform depend on transparency of Members’ Account status to all Members, including both yourself and other Members who have entered into Project Agreements with you. You therefore agree as follows: IF WE DECIDE TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, WE HAVE THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER MEMBERS THAT HAVE ENTERED INTO PROJECT AGREEMENTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE MEMBERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. We will have no liability arising from or relating to any notice that we may provide to any Member regarding closed Account status or the reason(s) for such closure.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other content you keep on the Platform. Except as otherwise required by Applicable Law, we, in our sole discretion, may retain some or all of this information along with all your previous posts and User Contributions in order to comply with Applicable Law and for such period as is required by Applicable Law. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which we will have no liability whatsoever.
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