Version Date: March 30, 2018
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THE PLATFORM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE PLATFORM.
II. WHAT WE DO
Our Platform facilitates the connection of individuals seeking to obtain lawncare and lawncare-related services (“Requesters”) with individuals or entities seeking to provide such services (“Service Providers”). Requesters and Service Providers together are referred to herein as “Users” and lawncare and lawncare services sought by Requesters and provided by Service Providers are referred to herein as a “Service” or “Services.”
We do not provide any Services. The provision of all Services is up to the Service Providers, which may be scheduled through use of the Platform. THROUGH THE PLATFORM, WE OFFER INFORMATION AND A METHOD TO OBTAIN SUCH SERVICES, BUT DO NOT UNDER ANY CIRCUMSTANCES PROVIDE SUCH SERVICES AS A SERVICE PROVIDER. WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICES PROVIDED TO THE REQUESTER BY SERVICE PROVIDERS, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
III. HOW WE SCREEN SERVICE PROVIDERS
Safety is of the utmost importance to us. We verify the identity of Service Providers through telephone number verification, address verification by mail, and bank verification. In addition, we check the backgrounds of our Service Providers via third party background check services. Although we screen Service Providers in the manner set forth above, each Requester should exercise caution and common sense to protect personal safety and property, just as you would when interacting with any person whom you do not know. BY USING THE PLATFORM, THE REQUESTER AGREES TO HOLD US FREE FROM RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF THE SERVICES. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING SERVICE PROVIDERS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY SERVICES.
When a Service Provider applies to provide Services on our Platform, we will coordinate with one or more third-party consumer reporting agencies (“CRA”) and other public and private sources regarding the Service Provider's character, general reputation, personal characteristics, mode of living, work habits, performance, experience, reasons for termination of past employment, driving record, criminal record, education, credentials, credit, and references (“Background”). As a condition of your application to use our Platform, you will be required to execute a Fair Credit Reporting Act Disclosure, Authorization, and Release Form (“FCRA Authorization”), which authorizes the CRA to obtain information regarding your Background and explains your rights under the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) (“FCRA”). We reserve the right to use any and all information obtained from the CRA for all allowable purposes under the FCRA, including, but not limited to, determining whether a Service Provider may use our Platform. WE RESERVE THE RIGHT TO APPROVE OR DENY ANY SERVICE PROVIDER'S APPLICATION TO PROVIDE SERVICES ON OUR PLATFORM FOR ANY REASON OR NO REASON IN OUR SOLE DISCRETION.
IV. ELIGIBILITY TO USE, ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS
The Platform may only be used by persons or entities that can form legally binding contracts under applicable law. The Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years of age and that you have the right, authority and capacity to enter into legally binding contracts and you agree to abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
By accessing or using our Platform, you confirm your agreement to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not access or use our Platform. This Agreement expressly supersedes any prior agreements or arrangements with you on the one hand, and us, on the other. The Company may immediately terminate this Agreement or require Service Providers to terminate any Services with respect to you, or generally cease offering or deny access to the Platform, or any portion thereof, at any time for any reason.
We reserve the right to require you to agree to supplemental terms in particular instances, such as policies for a particular event, program, activity or promotion (“Supplemental Activities”), and such supplemental terms will be disclosed to you in separate disclosures or in connection with the Supplemental Activities. Supplemental terms are in addition to, and shall be deemed a part of, this Agreement for the purposes of the Supplemental Activities. Supplemental terms shall prevail over this Agreement in the event of a conflict with respect to the Supplemental Activities.
V. UPDATES TO THIS AGREEMENT
We may update this Agreement from time to time. Updates to this Agreement will be effective upon our posting of such updated Agreement on our Site and/or App. Your continued access or use of the Platform after our posting of an updated Agreement confirms your consent to be bound by the Agreement, as updated.
Some of the materials available on the Platform, including those necessary for Users to provide or receive Services, may require prior registration to access. If you decide to access such materials you will be required to have a valid account and password, which you will be able to obtain by signing up and registering on the Site or on the App, if any. As part of the registration, you will need to provide a valid e-mail address or telephone number in order to use the Platform. We may refuse to grant you, and you may not use, a username or e-mail address that is already being used by someone else, that may be construed as impersonating another person, that belongs to another person, that violates the intellectual property or other rights of any person, that is offensive, or that we reject for any other reason in our sole discretion.
In exchange for registering, and subject to the limitations set forth in this Agreement, you will be granted the limited right to use the following features of the Platform:
- Requesters will have access to Service Providers and a description of the Services that they are willing to provide to Requesters.
- Requesters will have the ability to provide comments and feedback (e.g., ratings) on the Service Providers who provide them with Services and Users will have the ability review such comments and feedback.
- Requesters will have the ability to request a bid for Services, and Service Providers will be able to place bids for Services.
- Service Providers will have the ability to advertise the availability of their Services through, and for Requesters to book such Services through, the Platform.
- Users will be able to use the Platform to make payments for Services to be paid for Services rendered.
VII. PURCHASES, PAYMENTS & FEES
The Platform connects Requesters seeking Services with Service Providers that provide Services. Requesters contract for Services directly with Service Providers. We are not a party to any contracts for Services. The Platform facilitates these contracts by supplying a medium through which Requesters can connect with Service Providers, settle on pricing and schedule Services, and make payments for Services (“Payments”).
As a Requester, you agree to pay the amounts charged for your use of the Service (“Charges”). Charges include the Service Provider Price (as defined below), Service Fee (as defined below), and other applicable fees, surcharges, and taxes. You are responsible for reviewing the applicable fees and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof. Charges consist of:
- Service Provider Price. The Service Provider determines the price required to perform the work for a Requester's bid request. This fee is not assessed by us.
- Service Fee. We assess a per-job “Service Fee” to support the Service. The amount of the Service Fee may vary but shall be retained by us in its entirety.
- Cancellation Fee. After requesting a bid, a Requester may cancel it through the Site or App, but note that in certain cases, a cancellation fee may apply (“Cancellation Fee”). Collected Cancellation Fees will be passed to the Service Provider who accepted a Requester's bid request.
Requesters are obligated to immediately pre-authorize payment for the Services they order through the Platform. Braintree will charge the Requester's credit or debit card according to the amount the Requester has agreed to pay on the Platform with respect to a Service, and the Requester hereby authorizes Braintree to charge the credit or debit card on file in the Requester's Platform account for such amounts. Upon the Service Provider's completion of the requested Services, we will notify the Requester by e-mail to use the Platform to finally approve payment for the completed Services (the “Final Payment Notification”). If the Requester does not approve the final payment within two (2) days of our sending the Final Payment Notification to the Requester, we will automatically process the pre-authorized payment. We or Braintree retain the right, in our sole discretion, to place a hold on the Requester's credit card for up to seven (7) days for an ordered or completed Service transaction.
Upon addition of a new payment method or bid acceptance, we or Braintree may seek authorization of your selected payment method to verify the payment method, ensure the job cost will be covered, and protect against fraud (the “Authorization”). Although the Authorization is not a Charge, it may reduce your available credit or balance by the Authorization amount until your bank's next processing cycle. Should the amount of our Authorization exceed the total funds on deposit in your account, you may be subject to overdraft or non-sufficient funds charges by the bank issuing your debit or check card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
VIII. SAFETY & CANCELLATION
Our goal is to provide a safe marketplace for Requesters and Service Providers. Requesters and Service Providers are responsible for representing information accurately and timely. Should data be inaccurate, a Requester or Service Provider may cancel without penalty. The following outlines acceptable reasons for cancellation or refusal to provide Services:
Misrepresentation. The bid request submitted by a Requester must clearly communicate the following to a Service Provider or the Service Provider may cancel without penalty:
- Service area. The lawn or property must be fairly represented in the bid request process.
- Lawn height. Standard mowing Services include lawns up to 8 inches in length. Lawns taller than 8 inches in length may include a surcharge.
- Boundaries clearly demarcated. The boundaries of the property and lawn must be clearly demarcated for the Service Provider to deliver Services.
- Gates and/or codes. A gate width and code (if applicable) should be provided to the Service Provider before Services are rendered, so the Service Provider may assess whether or not to bid on the request.
Safety. The Service Provider must be able to deliver Services without harm to themselves or their equipment including:
- Weather. Mowing Services cannot be delivered during rain, lightning or other inclement weather conditions.
- Pets and wildlife. All pets and wildlife must be removed from areas where the Services are to be rendered by the Service Provider.
- Grade or steepness of property. A Service Provider must be able to deliver the Services with the Service Provider's own equipment. Should, the Service Provider, in the Service Provider's sole discretion, not be able to provide Services without risk to the Service Provider or the Service Provider's equipment, the Service Provider may choose to cancel.
- Debris. Debris and other obstacles that may damage lawn equipment or may impede a Service Provider's ability to deliver Services must be removed prior to the performance of the Services.
- Sprinklers and or other installed upgrades. It is the responsibility of the Requester to notify the Service Provider of any systems, such as sprinklers, that are on the property. Service Providers will make every reasonable attempt to avoid such obstacles, but notification from the Requester to the Service Provider is required before Service is performed.
- Poisonous plants. Service Providers are not required to mow, trim, or remove poisonous plants, such as poison ivy, poison oak and/or sumac, but may choose to do so at the Service Provider's own discretion.
- Excrement. Should there be excessive excrement from your animal or wildlife, a Service Provider may cancel without penalty to the Requester in the Service Provider's sole discretion.
- Our Insurance. We hold a liability insurance policy with $1 million of general aggregate liability coverage, as defined in the relevant policy. Subject to its specific terms and conditions, this policy is intended to cover Service Provider liability, on an excess basis, from the time the Service Provider commences performance of the Services are marked “complete” by the Service Provider. This insurance is over and above the Service Provider's own professional insurance, if any, and will only be accessible after the Service Provider's own insurance coverage is exhausted.
- Service Provider Insurance. Our Service Providers represent a diverse group ranging from professional landscapers to small, independent operators. We strongly encourage each of our Service Providers to purchase and maintain their own professional insurance. However, in order to maximize the choices available to Requesters and keep Service Provider bids low, we do not require our Service Providers to maintain insurance coverage. Requesters are encouraged thoroughly investigate and evaluate Service Providers prior to accepting any bid.
- Limitation of Liability. Users understand that lawncare and the operation of power equipment present an inherent risk of injury, some of which may be mitigated by insurance. Due to this inherent risk, Users understand that they may become liable for damages suffered by other Users or third-parties before, during, or after the performance of Services. Notwithstanding the excess insurance coverage that we offer to our Service Providers, we expressly disclaim any liability that may arise between users of the Platform, including but not limited to, the injuries or damages set forth in this paragraph. Users understand that the Platform is only a venue for connecting Users. Please be aware that Service Providers are not the employees, contractors or agents of the Company. Because we are not involved in the formation or execution of the actual contract between Users or in the completion of any Services, in the event that you have a dispute with one or more Users, you release us and our members from any and all claims, demands, or damages (actual, direct or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
REQUESTERS UNDERSTAND THAT THEY MAY BECOME LIABLE FOR PERSONAL INJURY AND/OR EQUIPMENT/PROPERTY DAMAGE SUFFERED BY SERVICE PROVIDERS BEFORE, DURING, OR AFTER THE PERFORMANCE OF SERVICES. WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO THE INJURIES OR DAMAGES SET FORTH IN THIS PARAGRAPH. THE PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. BECAUSE WE ARE NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY SERVICES, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE US AND OUR MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
IX. USER REPRESENTATIONS
By using the Platform you represent and warrant that:
- All registration information you submit is truthful and accurate and you will maintain the accuracy of such information.
- You will keep your password confidential and will be responsible for all use of your password and account.
- You are not a minor in the jurisdiction in which you reside.
- Your use of the Platform does not violate any applicable law or regulation.
- You will not solicit or engage clients met or otherwise serviced by or through our Platform either directly or indirectly as set forth in Section XIII.
- As a Service Provider, you have equipment that can be safely operated to provide the requested Services and you are of legal age to operate such equipment in your locale or jurisdiction.
- You are not our employee. We do not supervise, direct, or control a Service Provider's work or any Services performed in any manner. A Services Provider provides Services as an independent contractor, and is not an employee, joint venturer, partner, agent, or franchisee of us for any purpose whatsoever.
- You understand that registration with the Platform is not a promise of work, explicitly or implied.
- You understand that promotional credits, if any, have no monetary value and that any warranty, express or implied, is non-transferrable between parties.
If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect, in our sole discretion, that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Platform (or any portion thereof).
X. USER CONTRIBUTIONS
The Platform may contain blogs, message boards, applications, reviews, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Users to communicate with other Users (collectively, “Contributions”). Any Contributions you transmit to the Company will be public and treated as non-confidential and non-proprietary. When you create or make available a Contribution, you thereby represent and warrant that:
- The creation, distribution, transmission, public display and performance, accessing, downloading and copying of your Contribution does not and will not infringe on the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third-party.
- You are the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize us and Users to use your Contributions as necessary to exercise the licenses granted by you under this Agreement.
- You have the written consent, release, and/or legal right to use the name or likeness of each and every identifiable individual person in any Contribution.
- Your Contribution is not obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable (as determined by us in our sole discretion), libelous or slanderous, does not ridicule, mock, disparage, intimidate or abuse anyone, does not advocate the violent overthrow of any government, does not incite, encourage or threaten physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third-party.
- Your Contribution does not contain material that solicits personal information from anyone under age 18 or exploit people under the age of 18 in a sexual or violent manner, and does not violate any federal or state law concerning child pornography or otherwise intended to protect the health or well-being of minors.
- Your Contribution does not include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap.
- Your Contribution does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation.
As applicable to Users that post reviews:
- The User has firsthand experience with the User;
- The review does not contain offensive, abusive, racist, discriminatory or defamatory language or reference illegal activity; and
- The review constitutes the User's independent, honest, genuine opinion offered in good faith.
You understand that we have the right, in our sole and absolute discretion, to (i) edit, redact or otherwise change any Contributions, (ii) re-categorize any Contributions to place them in more appropriate locations, or (iii) pre-screen or delete any Contributions that are determined to be inappropriate or otherwise in violation of this Agreement.
You further understand and acknowledge that you are responsible for any Contributions you submit or contribute, and you, not us, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third-party for the content or accuracy of any Contributions posted by you or any other User of the Platform.
- Contributions. You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all of Contributions from or through your account on the Platform, including but not limited to all images, videos, musical works and text included in such postings. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the Platform.
- Photographs. In addition to the Contribution license set forth herein, Requesters expressly permit Service Providers to take before-and-after photographs of the Requester's lawn, landscaping, home and other areas serviced by Service Providers pursuant to a Requester's bid request. As a Requester, you hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all before-and-after photographs taken by our Service Providers. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the Platform.
You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all of Contributions from or through your account on the Platform, including but not limited to all images, videos, musical works and text included in such postings. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the Platform.
XII. PROHIBITED ACTIVITIES
- Attempting to bypass any measures of the Platform designed to prevent or restrict access to the Platform, or any portion of the Platform.
- Attempting to impersonate another User or person or using the e-mail address or telephone number of another User.
- Criminal or tortious activity.
- Deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of the Platform.
- Deleting the copyright or other proprietary rights notice from any Platform content.
- Except as may be the result of standard search engine or Internet browser usage, using or launching, developing or distributing any automated system, including, without limitation, any spider, robot (or "bot"), cheat utility, scraper or offline reader that accesses, data mines, or otherwise extracts data from the Platform, or using or launching any unauthorized script or other software.
- Harassing, annoying, intimidating or threatening any other User or employee of ours.
- Interfering with, disrupting, or creating an undue burden on the Platform or the networks or services connected to the Platform.
- Making any unauthorized use of the Platform, including collecting usernames and/or email addresses of Users by electronic or other means for the purpose of sending unsolicited email, or creating User accounts by automated means or under false pretenses.
- Selling or otherwise transferring your profile.
- Using the Platform as part of any effort to compete with us.
- Using the Platform in a manner inconsistent with any and all applicable laws and regulations or this Agreement.
As a Service Provider, you understand and acknowledge that you will have access to and learn information about Requesters, including, but not limited to, names, phone numbers, addresses, e-mail addresses, Service history, Service preferences, pricing preferences and other information identifying facts and circumstances specific to Requesters and relevant to the Platform (“Requester Information”). As a Service Provider, you understand and acknowledge that loss of Requester Information and/or Requester goodwill will cause significant and irreparable harm to us.
As a Service Provider, you agree and covenant that, during the period beginning with your registration as a User and ending on the two (2) year anniversary of the termination of your User account, you will not directly or indirectly solicit, contact (including but not limited to e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with our current, former or prospective Requesters for purposes of offering or accepting goods or services similar to or competitive with the Services you offered while registered as a Service Provider on the Platform.
XIV. INTELLECTUAL PROPERTY RIGHTS
The Platform, and the information, data, content and materials, which it contains (the “Intellectual Property”) are the property of the Company and/or its affiliates and licensors, excluding User Contributions, which we have a right to use as described above. The Intellectual Property is protected from unauthorized use, copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. The Company and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to the Intellectual Property. Any use of the Intellectual Property, other than as expressly permitted herein, is prohibited without the prior permission of the Company and/or the relevant right holder. The service marks and trademarks of the Company, including without limitation www.mownow.com and our logo are service marks owned by the Company. Any other trademarks, service marks, logos and/or trade names appearing on the Platform are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the Platform without the express prior written consent of the owner.
XV. THIRD-PARTY WEBSITES AND CONTENT
XVI. SITE MANAGEMENT
The Company reserves the right but does not have the obligation to:
- Monitor the Platform for violations of this Agreement and otherwise manage it in a manner designed to facilitate the proper functioning of the Platform.
- Take appropriate legal action against anyone who, in our sole discretion, violates this Agreement.
XVIII. TERM AND TERMINATION
This Agreement shall remain in full force and effect until such time as it is terminated by you or us. You may terminate your account at any time, for any reason, by following the instructions for terminating user accounts in your account settings, if available, or by contacting us using the contact information below.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO THE PLATFORM FOR ANY OR NO REASON (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION). IN SUCH EVENT, WE MAY DELETE YOUR PROFILE AND ANY CONTENT OR INFORMATION THAT YOU HAVE POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If the we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third-party, even if you may be acting on behalf of the third-party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Any provisions of this Agreement that fulfill the purpose of this Section shall survive this Agreement.
XIX. MODIFICATIONS AND CORRECTIONS TO THE PLATFORM
The Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third-party for any modification, suspension or discontinuance of the Platform.
Occasionally there may be information on the Platform that contains typographical errors, inaccuracies or omissions that may relate to service descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time, without prior notice to you. YOU HEREBY AGREE TO INDEMNIFY, HOLD HARMLESS, AND RELEASE THE COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS IN RIGHTS FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH INACCURACIES OR CORRECTIONS.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RELINQUISH YOUR RIGHT TO A JURY TRIAL AND RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Disputes Between Users
WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO THE INJURIES OR DAMAGES SET FORTH IN THIS PARAGRAPH. THE PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. BECAUSE WE ARE NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY SERVICES, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE US AND OUR MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
Disputes with Us
You agree that any dispute, controversy, or claim with us arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof, or arising out of or relating to the Platform (each, a “Dispute”), shall be resolved under the provisions set forth in this Section. The procedures set forth in this Section shall be the exclusive mechanism for resolving any Dispute that may arise from time to time, and are an express condition precedent to binding arbitration or litigation of the Dispute.
- Informal Resolution. To expedite resolution and control the cost of any Dispute, you and the Company agree to first attempt to negotiate a resolution to any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice as set forth in this Agreement.
Binding Arbitration. If you and the Company are unable to resolve a Dispute informally as set forth in Subsection A of this Section, you or we may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, AAA's Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website located at www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by AAA rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide findings of fact and conclusions of law unless requested by a party. All decisions of the arbitrator shall be binding on the parties. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in Cincinnati, Hamilton County, Ohio. Except as otherwise provided in this Agreement, you and the Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
Restrictions. You and the Company agree that any arbitration shall be limited to individual Disputes. To the fullest extent permitted by law:
- No arbitration shall be joined with any other.
- There is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures.
- There is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons or entities.
- Exceptions to Informal Negotiations and Arbitration. Notwithstanding the anything to the contrary set forth in this Section, you and the Company agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration:
- Any Disputes seeking to enforce or protect, or concerning the validity of any of your or our Intellectual Property rights.
- Any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use.
- Any claim for injunctive relief.
- Governing Law; Jurisdiction. This Agreement and all aspects of the Platform shall be governed by and construed in accordance with the internal laws of the State of Ohio, without regard to conflict of law provisions. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth in this Section), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Cincinnati, Hamilton County, State of Ohio, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in such state and federal courts.
- Time Limitation. In no event shall any claim, action or proceeding by you related in any way to the Platform or this Agreement be instituted more than two (2) years after the cause of action arose, regardless of discovery of the same.
- Severability. If the arbitration provisions contained in this Section are found to be illegal or unenforceable, then any Disputes that would have been subject to the arbitration provisions of this Section shall be decided by a court within Hamilton County, Ohio as set forth above.
The Company cannot control the nature of all content available on the Platform. By operating the Platform, the Company does not represent or imply that the Company endorses Contributions or other content available on or linked to by the Service, including without limitation content hosted on Third-Party Sites or provided by third-party applications. We and are not responsible for unlawful or otherwise objectionable content you may encounter on the Platform or in connection with any Contributions. The Company is not responsible for the conduct, whether online or offline, of any User.
YOU AGREE THAT YOUR USE OF THE PLATFORM WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PLATFORM AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PLATFORM'S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM.
THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND THE 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. 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.
XXII. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL THE COMPANY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA OR OTHER DAMAGES ARISING FROM YOUR USE OF THE PLATFORM, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT OF SERVICE FEES PAID, IF ANY, BY YOU TO THE COMPANY FOR THE PERIOD COMMENCING THIRTY (30) DAYS PRIOR TO ANY CAUSE OF ACTION ARISING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You understand and agree that your use of any aspect of the Platform shall be sufficient consideration for the promises set forth in this Agreement.
TO THE FULLEST EXTENT AVAILABLE BY LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD THE COMPANY, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR RESPECTIVE OFFICERS, AGENTS, PARTNERS AND EMPLOYEES, HARMLESS FROM AND AGAINST, ANY LOSS, DAMAGE, LIABILITY, CLAIM, OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, MADE BY ANY THIRD-PARTY OR USER DUE TO OR ARISING OUT OF YOUR CONTRIBUTIONS, USE OF THE PLATFORM, AND/OR ARISING FROM YOUR BREACH OF THIS AGREEMENT AND/OR ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE. NOTWITHSTANDING THE FOREGOING, THE COMPANY RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY THE COMPANY, AND YOU AGREE TO COOPERATE, AT YOUR EXPENSE, WITH THE COMPANY'S DEFENSE OF SUCH CLAIMS. THE COMPANY WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING WHICH IS SUBJECT TO THIS INDEMNIFICATION UPON BECOMING AWARE OF IT.
Except as explicitly stated otherwise, any notices given to us shall be given by email at the email address listed in the contact information below. Any notices given to you shall be given to the email address you provided during the registration process, or such other address as each party may specify in writing. Notice shall be deemed to be given twenty-four (24) hours after the email is sent, unless the sending party is notified that the email address is invalid. We may also choose to send you notices by regular mail, such notice being deemed to have been given upon the time of mailing.
XXV. USER DATA
We may maintain certain data that you transfer to us through the Platform, as well as data relating to your use of the Platform or the Services. Although we perform regular routine backups of data, you are primarily responsible for all data that you have transferred or that relates to any activity you have undertaken using the Platform. You agree that the Company shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against the Company arising from any such loss or corruption of such data.
XXVI. ELECTRONIC CONTRACTING
Your use of the Platform includes the ability to enter into agreements and/or to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into relating to the Company Services, including notices of cancellation, policies, contracts, and applications.
In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
XXVII. ENTIRE AGREEMENT
This Agreement, along with any prior versions of this Agreement which may still be in effect, constitutes the entire agreement between you and the Company regarding the use of the Platform and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the Platform.
XXVIII. NO WAIVER
No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
XXIX. SECTION TITLES FOR CONVENIENCE ONLY
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
This Agreement and your account may not be assigned by you without our express written consent. The Company may assign any or all of its rights and obligations to others at any time.
If any provision or part of a provision of this Agreement is found to be unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
There is no joint venture, partnership, employment or agency relationship created between you and the Company as a result of this Agreement or use of the Platform. Upon the Company's request, you will furnish the Company any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You understand and agree that you have had the opportunity to review this Agreement and the opportunity to opt out of it by not accessing our Platform.
In order to contact us regarding use of the Platform or anything contained in this Agreement, please contact the Company at:
320 West Fourth St
Cincinnati, OH 45202
Phone: (513) 299-0007