A. Registration and Acceptance.
B. Account Eligibility.
Company offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting; and (d) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.
C. Account Profile.
To register for an Account to join the Site, you must complete a User profile (“Profile”), which you consent to be shown to other Users and to be shown to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
D. Account Permissions.
E. Identity and Location Verification.
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Company. You authorize Company, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes, but is not limited to, providing official government or legal documents. During verification some Account features may be temporarily limited. When a verification is successfully completed, Account features will be restored.
F. Usernames and Passwords.
2. Purpose of Company
A. Relationship with Company.
Company merely makes the Site and Site Services available to enable Users to find each other and collaborate with each other. Through the Site and Site Services, Users may be notified of other Users or projects; at all times, however, Users are responsible for evaluating and determining the suitability of any project or User on their own. If Users decide to collaborate, the decision to work together and any agreements between Users is directly between the Users and Company is not a party to any third party agreement including between Users.
You also acknowledge, agree, and understand that Users are solely responsible for determining, and have the sole right to determine, which Projects to work on, and the time, place, manner, and means of providing working on Projects. You further acknowledge, agree, and understand that: (i) you are not an employee of Company, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Company will not have any liability or obligations, including under or related to and Projects and/or User services for any acts or omissions by you or other Users; (iii) Company does not, in any way, supervise, direct, or control any User; does not impose quality standards or a deadline for completion of any Projects; and does not dictate the performance, methods or process User uses to perform work; (iv) User is free to determine when and if to perform work, and Company does not set or have any control over User’s schedules or work location; (v) Company does not, in any way, provide or guarantee Users a salary or any minimum, regular payment; (vi) Company does not provide Users with training or any equipment, labor, tools, or materials; (vii) Company does not provide the premises at which Users will perform work. Users are free to use subcontractors or employees to use the Service, and (viii) Company does not provide shipping services for any physical Work Product. If a User uses subcontractors or employees, User further agrees and acknowledges that this Section applies to Company’s relationship, if any, with User’s subcontractors and employees as well and User is solely responsible for User’s subcontractors and employees.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable, Users comply with the Opt Out provisions described in Section 7. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
B. User Content.
You grant Company a license to use the materials you post to the Site or Service. By posting, downloading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”) to the Site or Service, you are granting Company, its affiliates, officers, directors, employees, consultants, agents, and representatives a license to use User Content in connection with the operation of the business of Company, its affiliates, officers, directors, employees, consultants, agents, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. You will not be compensated for any User Content. You agree that Company may publish or otherwise disclose your name in connection with your User Content. By posting User Content on the Site or Service, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content.
C. Compliance with Intellectual Property Laws.
When accessing the Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service and the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, “Content”) in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any Content you provide or transmit, or that is provided or transmitted using your Username. The burden of proving that any Content does not violate any laws or third party rights rests solely with you. All Users are approved to use the Service only if they agree that they will not infringe on any third party’s Intellectual Property rights, including the rights of other Users. If a User breaches this requirement, you will be subject to termination from the Service, and legal action taken by the infringed third party and by Company, including but not limited to all monetary damages resulting from such infringement and any harm that is caused to the goodwill of Company as a result of such breach.
D. Inappropriate Content.
E. Taxes and Benefits.
User acknowledges and agrees that User is solely responsible for all tax liability associated with the Service; and to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that User is not covered by or eligible for any insurance from Company.
F. Marketplace Feedback and User Content.
You hereby acknowledge and agree that Users publish and request Company to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Users or Clients voluntarily submit to Company and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Company; Company provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Company post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site.
G. Prohibited Uses.
Company imposes certain restrictions on your permissible use of the Site and the Service. You are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing the Site or Service. Any violation of system or network security may subject you to civil and/or criminal liability.
3. Relationship Between Users
If Users decide to work together, they may elect to enter into a contractual relationship directly. Users have complete discretion both with regard to whether to enter into a contract with each other and with regard to the terms of such contract. You acknowledge, agree, and understand that Company is not a party to any contract between Users, that the formation of a contract between Users will not, under any circumstance, create an employment or other service relationship between Company and any User or a partnership or joint venture between Company and any User.
For disputes arising between Users, you may pursue your dispute independently, but you acknowledge and agree that Company will not and is not obligated to provide any dispute assistance.
A. Confidential Information.
All Users agree to keep all Confidential Information on behalf of all other Users strictly confidential. To the extent a User provides Confidential Information to others through the Service, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
4. Warranty Disclaimer
5. Limitation of Liability
* your use of or your inability to use our Site or Site Services;
* delays or disruptions in our Site or Site Services;
* viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
* glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
* damage to your hardware device from the use of the Site or Site Services;
* the content, actions, or inactions of third parties’ use of the Site or Site Services;
* a suspension or other action taken with respect to your Account;
* your reliance on the quality, accuracy, or reliability of postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
In addition to the recognition that Company is not a party to any contract between Users, you hereby release Company, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the User Services provided to Client by a User and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.
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 THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
“Indemnified Claim” means 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 or a third party or other User against an Indemnified Party.
“Indemnified Liability” means 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 an Indemnified Party against you or a third party or other User.
8. Agreement Term And Termination
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users. You therefore agree as follows: IF COMPANY DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, COMPANY HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENGAGED WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT COMPANY WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
B. Account Data on Closure.
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and any closure of your Account may involve deletion of any content stored in your Account for which Company will have no liability whatsoever. Company, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
9. Disputes Between You and Company
Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.
A. Choice of Law.
B. Informal Dispute Resolution.
Before serving a demand for arbitration of a Claim, you and Company agree to first notify each other of the Claim. You agree to notify Company of the Claim at Attn: Clicked, 101 California Street, Suite 2710, San Francisco CA 94111 or by email to [email protected], and Company agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Company then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Company, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Company will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
C. Binding Arbitration and Class Action/Jury Trial Waiver.
This Arbitration Provision applies to all Users.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Company, and our Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
D. Scope Of Arbitration Agreement And Conduct Of Arbitration.
Except as otherwise provided herein, arbitration will be conducted in San Francisco County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Users that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where User is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and Company will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with Company to make up the difference, if any. In any arbitration under the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect in which a User makes a claim under a consumer protection statute, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, or $250.00, whichever is less, with Company to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between Company and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Company will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
E. Class and Collective Waiver.
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Company agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach 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 dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. You and Company agree that you will not be retaliated against, disciplined or threatened with discipline as a result of your filing or participating in a class or collective action in any forum. However, Company may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
F. Right to Opt Out of The Arbitration Provision.
You may opt out of the Arbitration Provision contained in this Section by notifying Company in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Company at 101 California Street, Suite 2710, San Francisco CA 94111 includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to [email protected] Opting out of this Arbitration Provision will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section, continuing your relationship with Company constitutes mutual acceptance of the terms of this Arbitration Provision by you and Company. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
G. Enforcement of this Arbitration Provision.
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver above, is deemed to be unenforceable, you and Company agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
A. Entire Agreement.
B. Modifications; Waiver.
D. Severability; Interpretation.
E. Force Majeure.
The parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, pandemics, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
F. Prevailing Language and Location.
G. Affiliated Sites.
H. No License.
Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Company or by any third party.
I. Access Of The Site Outside The United States.
Company makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
J. Consent to Use Electronic Records.
K. Copyright Infringement.
Company has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or with the Service. Company has adopted a policy that provides for the immediate suspension and/or termination of any Site or Service user who is found to have infringed on the rights of Company or of a third party, or otherwise violated any intellectual property laws or regulations. Company’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Company to delete, edit, or disable the material in question, you must provide Company with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material; (d) information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Company’s designated agent at Clicked, 101 California Street, Suite 2710, San Francisco CA 94111 or [email protected]
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of a User; (b) was lawfully received by User without restriction from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.
“Project” means work that is conducted through the Service between Users.
“User Content” means, in addition to other definitions herein, any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any User posts to any part of the Site.