WE DO NOT PERFORM MILESTONES AND DO NOT EMPLOY INDIVIDUALS TO PERFORM MILESTONES. WE DO NOT SUPERVISE, DIRECT OR CONTROL A PROVIDER’S WORK OR THE MILESTONES IN ANY MANNER, WHICH YOU HEREBY ACKNOWLEDGE.
The Platform only enables connections between Users for the fulfillment of Milestones. We are not responsible for the performance of Users, nor do we have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Milestones, Providers, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. We make no representations about the suitability, reliability, timeliness, or accuracy of the Milestones requested and services provided by Users identified through the Platform whether in public, private, or offline interactions.
The Platform may host User Generated Content (as defined hereinafter) relating to reviews and ratings of specific Providers (“Feedback”). Such Feedback is such User’s opinion, not our opinion, and has not been verified or approved by us. As such, each Client should undertake their own research to be satisfied that a specific Provider is the right person for a Milestone. You agree that we are not liable for any Feedback or other User Generated Content. We encourage each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. We do not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that we do so.
Although we may perform background checks of Users as outlined above, we cannot confirm that each User is who they claim to be and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER WE NOR OUR AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM AND YOU HEREBY RELEASE US AND OUR EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, REPRESENTATIVES, AGENTS, AND OUR AND THEIR AFFILIATES AND LICENSORS (“RELEASED PARTIES”) FROM ANY LIABILITY RELATED THERETO. THE RELEASED PARTIES WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM.
The Client shall pay for completed Milestone services as indicated on the Platform at the rates agreed to in the Service Agreement. Each party agrees to comply with the Policies during the engagement, performance and completion of a Milestone.
Provider will not, during or subsequent to the term of this Agreement, (i) use Client Confidential Information for any purpose whatsoever other than in furtherance of the performance of services under a Service Agreement with such Client or (ii) disclose the Client Confidential Information to any third party. Provider agrees that all Client Confidential Information will remain the sole property of Client. Provider also agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Client Confidential Information.
Provider recognizes that Client has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on Client’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Provider agrees that, during the term of the Service Agreement and thereafter, Provider owes Client and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out Milestones for Client consistent with Client’s agreement with such third party.
Provider agrees to assist a Client, or its designee, at such Client’s expense, in every proper way to secure such Client’s rights in Inventions accruing to such Client hereunder and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions in any and all countries, including the disclosure to such Client of all pertinent information and data with respect to all Inventions, the execution of all applications, specifications, oaths, assignments and all other instruments that such Client may deem necessary in order to apply for and obtain such rights and in order to assign and convey to such Client, its successors, assigns and nominees the sole and exclusive right, title and interest in and to all Inventions accruing to such Client hereunder, and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions accruing to such Client hereunder. Provider also agrees that Provider’s obligation to execute or cause to be executed any such instrument or papers shall continue after the termination of this Milestone and the associated Service Agreement.
Provider agrees that if, in the course of performing a Milestone for a Client, Provider incorporates into any Invention developed pursuant to such Milestone any pre-existing invention, improvement, development, concept, discovery or other proprietary information owned by Provider or in which Provider has an interest, (i) Provider will inform such Client, in writing before incorporating such invention, improvement, development, concept, discovery or other proprietary information into any Invention, and (ii) such Client is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make, have made, modify, use and sell such item as part of or in connection with such Invention. Provider will not incorporate any invention, improvement, development, concept, discovery or other proprietary information owned by any third party into any Invention without such Client’s prior written permission.
Provider agrees that, if a Client is unable because of Provider’s unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Provider’s signature for the purpose of applying for or pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions assigned to such Client hereunder, then Provider hereby irrevocably designates and appoints such Client and its duly authorized officers and agents as Provider’s agent and attorney-in-fact, to act for and on Provider’s behalf to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and effect as if executed by Provider.
If you are a Provider, you appoint us as your limited collection agent solely for the purpose of accepting revenues from your Service Agreements with Clients. You agree that payment made from a Client to us will be considered the same as a payment made directly to you as a Provider. Our obligation to pay Providers is subject to and conditional upon successful receipt of associated payments from Clients. In accepting appointment as the limited authorized agent of Provider, we assume no liability for any of the Provider’s acts or omissions. Once both Client and Provider have confirmed on the Services that a Milestone has been completed, we will forward the associated Milestone Payment to you via a payment method as described on the Platform in the manner and via the method described on the Platform; provided, however, that we may deduct a payment processing fee from the Milestone Payment, as indicated on the Platform.
If you are a Client, you acknowledge and agree that notwithstanding the fact that we are not a party to any Service Agreement, we act as the Provider’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Provider. Upon your payment to us of the full amount of any particular transaction, your payment obligation to the Provider is extinguished.
We reserve the right, in our sole discretion (but not the obligation), upon request from Client or Provider or upon notice of any potential fraud, unauthorized charges or other misuse of the Platform, to (i) place on hold any Milestone Payment and out of pocket expenses, or (ii) refund or provide credits.
WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE PLATFORM, WITH THE EXCEPTION OF OUR ROLE AS A LIMITED PAYMENT COLLECTION AGENT FOR PROVIDERS.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Without limitation, while using the Platform, you may not:
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and we will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
If we terminate or suspend your right to use the Platform as a Client for a User Breach, you will not be entitled to any refund of unused balance in your account, and you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to use the Platform is terminated or suspended, this Agreement will remain enforceable against you.
We reserve the right to modify or discontinue, temporarily or permanently, all or any portion of the Platform at our sole discretion, including your right to use the Platform, for any reason in our sole discretion. Except for refundable fees you have advanced to us (if any), we are not liable to you for any modification or discontinuance of all or any portion of the Platform. Notwithstanding anything to contrary in thisSection 3(c)we have the right to restrict anyone from completing registration as a Provider if we believe that such person may threaten the safety and integrity of the Platform, or if, in our sole discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Platform and by cancelling your Account (as hereinafter defined). All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
By providing your mobile phone number and using the Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts in order to perform and improve upon the Platform. We will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving text messages from us by modifying your account settings on the Platform.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of us. Each User acknowledges that we do not, in any way, supervise, direct, or control a Provider’s work or Milestones performed in any manner. We do not set a Provider’s work hours or location of work. We will not provide any equipment, labor or materials needed for a particular Milestone. We do not provide any supervision to Users.
The Platform is not an employment service and we are not an employer of any User. As such, we are not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Milestone services.
You agree to indemnify, hold harmless and defend us, our employees, agents, managers, officers, directors, and affiliates (our “Affiliates”) from any and all claims that a Provider was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Provider was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that we were an employer or joint employer of a Provider, any claims under any applicable employment-related laws, such as, without limitation, those relating to employment termination, employment discrimination, harassment or retaliation, as well as, without limitation, any claims for unpaid wages, withholdings, overtime pay, failure to provide meal and rest breaks, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
Our service marks and trademarks, including without limitation, our logos are service marks owned by us. Any other trademarks, service marks, logos and/or trade names appearing via the Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. WE DO NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER US NOR OUR AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THE PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY MILESTONE OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE PLATFORM.
NEITHER US NOR OUR AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
NEITHER WE NOR OUR AFFILIATES OR LICENSORS WARRANT THAT THE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
WE AND OUR AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE MILESTONE AND SELECTING THEIR PROVIDER AND WE DO NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR PROVIDER. WE DO NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY PROVIDER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
You hereby represent and warrant to us that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for us or cause us to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the Platform.
Each Provider hereby waives all rights and releases us from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Provider’s identity, likeness or voice in connection with the Platform.
INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim between you and us related to this Agreement (“Dispute”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to us. Our address for such notices is [mailing address] with the subject line reading: Legal.
BINDING ARBITRATION. If you and we are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Platform (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If your claim for damages does not exceed USD 10,000, We will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and we may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
EXCEPTIONS TO ALTERNATIVE DISPUTE RESOLUTION. Claims where mandatory arbitration is prohibited by a valid, non-preempted law, including claims under the Private Attorneys General Act of 2004, California Labor Code § 2698 et seq. (“PAGA”) to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction, are not covered by this arbitration provision. Nothing in this arbitration provision will prevent either party from bringing an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis the California state courts located in San Mateo County, or, if federal jurisdiction exists, the U.S. District Court for the Northern District of California with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and we agree that any arbitration will be limited to the Dispute between us and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and we otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
LOCATION OF ARBITRATION. Arbitration will take place in San Mateo, California. You and we agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the California state courts located in San Mateo County, or, if federal jurisdiction exists, the U.S. District Court for the Northern District of California have exclusive jurisdiction and you and we agree to submit to the personal jurisdiction of such courts.
RIGHT TO OPT OUT OF ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER. You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying us in writing within 30 days of the date you first registered for the Platform or 30 days from the date this Agreement was last updated. To opt out, you must send a written notification to us at [mailing address] that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
Except as expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles.
Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, the enforceability ofSection 4(e)entitled “Dispute Resolution” shall be governed by the Federal Arbitration Act.