1. Your Acceptance of this Agreement.
1.1 Introduction and Certain Definitions.
These terms and conditions are a binding legal agreement (“Agreement”) between You and clickworker.com, Inc. a Delaware corporation (hereinafter referred to as “the Company”, “we”, “us”, or “our”). The term “You” or “Your” refers to the person or entity creating an account with the Company, including, without limitation, You, the company or entity which You represent, together with Your employees, agents, representatives and authorized third parties. The term “Services” means any service that You request and/or receive on or through the Site by means of a Work Request (each as defined below). The term “Service Requestor” means You, if You use the Site to request that a Clickworker perform Services pursuant to a Work Request. The term “Clickworker” means any individual who accesses the Site and agrees to and does provide Services to a Service Requester in response to a Work Request. The term “Work Request” means a request by a Service Requester, such as you, for Services posted on the Site pursuant to the terms hereof. Such Work Request will often be divided up into multiple tasks, with each task to be completed by one Clickworker. The term “Work Product” means the deliverable or other work product produced by a Clickworker or Clickworkers in response to a Work Request.
The terms and conditions which govern Your use of the clickworker.com and resonio.com websites (the “Sites”) and of the Services offered by clickworkers are set forth in this Agreement, as supplemented by the terms and conditions of each specific Work Request. Please read this Agreement carefully and completely before using the Site or requesting any Services.
1.2 Acceptance of Terms and Policies.
You may use the Site and request Services subject to all of the terms and conditions set forth herein as well as the policies and guidelines of the Company, all of which are incorporated herein and considered part of this Agreement, including, without limitation, the Company’s Privacy Policy. The terms, conditions, policies and guidelines set forth herein or incorporated herein by reference are collectively referred to in this Agreement as “Terms and Policies”. To access the Site and request Services, You must first accept this Agreement and all other Terms and Policies. You can expressly accept this Agreement and all other Terms and Policies via click-through or other express means of acceptance; provided, however, if such an express opportunity is not presented, Your use of the Site request of Services shall evidence Your agreement to this Agreement and all other Terms and Policies.
1.3 Eligibility and Authority.
By using the Site and/or requesting Services, You are representing and certifying to the Company that You are of legal age (at least 18) and are competent to enter into a binding contract under applicable law and are not otherwise prohibited from using the Site and/or requesting or receiving Services pursuant to the laws of the local or national jurisdiction from which You are accessing or using the Site or requesting or receiving Services. Upon request, You shall provide us with verification of Your age, identity and other personally identifiable information. If You are accessing and using the Site and requesting Services on behalf of any third party, You hereby represent and warrant to the Company that You are an authorized representative of that third party and that Your use of the Site and request for Services binds that third party to the terms of this Agreement and all other Terms and Policies.
1.4 Modification of this Agreement and all other Terms and Policies.
The Company reserves the right, in its sole and absolute discretion, to change or replace this Agreement and/or any of the Terms and Policies governing the Site and/or the Services, at any time and from time to time. Any material changes will be effective upon posting of the revised Agreement and/or other Terms and Policies on the Site. Changes may be made without any other notice of any kind whatsoever. You are at all times responsible for reading and understanding each version of this Agreement and all other Terms and Policies. YOUR CONTINUED USAGE OF THE SITE FOLLOWING THE COMPANY’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT OR ANY OTHER TERMS AND POLICIES, YOUR ONLY RECOURSE IS TO TERMINATE YOUR USE OF THE SITE AND THE SERVICES.
1.5 The Company’s Right to Modify Site and Services.
Notwithstanding any provision of this Agreement to the contrary, the Company will have the right, in its sole and absolute discretion, to determine the content, appearance, design, functionality and all other aspects of the Site. The Company reserves the right to (i) redesign, modify, change, alter, suspend or discontinue, temporarily or permanently, the content, appearance, design, navigation, functionality, and other aspects of the Site and/or any page thereof and any element, aspect, portion, or feature thereof, at any time and from time to time; and (ii) modify, change, alter, suspend or discontinue, temporarily or permanently, all or any Services at any time and from time to time, without notice. The Company may also impose limits on certain features and Services or restrict Your access to parts or all of any Site without notice or liability to You. The Company shall have absolute discretion as to whom it permits to use or access any of the contents or services available on the Site. The Company will not be liable to You or any third party for any modification, suspension, or discontinuance of the Site or of any Services. The Site and the Services are provided on an “as is” and “as available” basis. Accordingly, You hereby acknowledge and agree that the Site and the Services may not be available at all times and that the Company shall have no liability to you as a result of such unavailability.
2. Provision of Services by the Company.
2.1 The Company’s Limited Role.
The Company has created and maintains an online marketplace where Service Requesters or the Company working with Service Providers can submit and, once approved by the Company can post Work Requests on the Site and Clickworkers, as independent contractors of the Company, can respond to such Work Requests and perform requested Services for Service Requesters. Except as expressly provided herein, the Company and its affiliates are not involved in the transactions between Service Requesters and Clickworkers. Accordingly, the Company has no control over (i) whether a given task is actually completed, (ii) the quality, safety or legality of the Services, (iii) the ability of Clickworkers to provide Work Product to a Service Requester’s satisfaction.
Aside from the Company’s verification of Work Product for conformance with the related Work Request and Section 5 below regarding payment facilitation, the Company is not responsible for and will not control the manner in which a Clickworker operates. The Company will not provide any Clickworker with any materials or tools to complete any Work Request aside from materials provided by You as part of Your Work Request.
Neither the Company nor any of its affiliates shall have any responsibility or liability for supervising Clickworkers. The Work Product produced by Clickworkers does not represent the opinion of or Work Product of the Company and the Company shall not be responsible for any derogatory, disparaging, offensive or otherwise objectionable content contained in any Work Request submitted by any Service Requester or in any Work Product produced by any Clickworker. The Company does not conduct any screening or other verification with respect to Clickworkers. As a Service Requester, You use the Site and request services at Your own risk. We expect that You will take necessary precautions and use caution and common sense when using the Site and/or the Services.
2.2 Work Requests.
Each and every Work Request will be posted to the Site either by You, or by the Company, working with You. The Company may not actively monitor the Work Requests that are accessible via the Site, nor do we have any obligation to do so except as otherwise determined by us or required by the laws of applicable jurisdictions. Notwithstanding the foregoing, all Work Requests are subject to the Company’s review and approval prior to appearing on the Site. Final decisions as to inclusion and/or placement of a Work Request on the Site, the category into which a Work Request is placed, and similar matters, are at the Company’s sole and absolute discretion. Without in any way limiting the foregoing, the Company shall have the right to modify the description of Services to be provided as set forth in a given Work Request and shall have the absolute discretion to establish the compensation to be paid to a Clickworker for the satisfactory completion of a task relating to a given Work Request.
Once the Company approves a given Work Request, that Work Request will be posted to the Site and Clickworkers will be able to login to the Site and browse all pending Work Requests. In order to allow Clickworkers to determine whether they are interested in performing tasks relating to a certain Work Request, all Work Requests must provide detailed and clear information regarding the Services to be performed and the expected Work Product. Once a Clickworker identifies a Work Request that he or she is interested in pursuing, that Clickworker may submit to the Company an offer to perform the requested task on the terms set forth in the Work Request. In the event the Company accepts a Clickworker’s offer, that Clickworker will be provided additional information regarding the specific Services to be performed by the Clickworker.
When submitting a Work Request for the Company’s approval, Service Requesters must notify the Company if such Work Request involves (i) Personally Identifiable Information so that the Company can take steps to ensure compliance with all applicable data privacy laws and regulations or (ii) adult content, nudity, violence, or any other potentially objectionable content. For purposes of this Agreement, the term “Personally Identifiable Information” shall mean information which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc. and any information relating to an identified or identifiable natural person, with an identifiable person being one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity.
2.3 Modification/Removal of Work Requests.
The Company reserves the right, exercisable at any time and in the Company’s sole and absolute discretion, to reject, suspend, cancel, modify or remove any Work Request, to make clerical and administrative edits to any Work Request, to assign new category and keyword designations to any Work Request, and to refuse to provide You access to the Site and/or the Services without notice to You for any reason. The Company, its employees, consultants and other agents shall have no liability for taking (or not taking) such actions or decisions.
3. Registration.
3.1 Account Creation.
In order to access the Site and request Services, You must register and create an account (“Account”) and obtain a username and password. You can do this directly through the Site or the Company can assist you. Information gathered through the registration process and information related to Your Account will be subject to this Agreement and all other Terms and Policies. You represent and warrant to the Company that all information provided by You when creating an Account is true, accurate and complete and that You will maintain, at all times, true, accurate, complete and updated information related to Your Account. Your username may not infringe upon the legal rights of any third party, including, without limitation, the intellectual property rights of any third party.
3.2 Your Responsibility for Your Account.
Information related to Your Account, including, without limitation, Your username and password, should be maintained by You in a strictly confidential manner. You are solely responsible for the usage of Your Account by any third parties. It is Your responsibility to advise us if You are aware of any unauthorized access to Your Account or if Your Account information has been made available by You to third parties in a manner that may result in unauthorized usage of Your Account. In our sole and absolute discretion, we may terminate Your Account for any reason (including for reasons related to unlawful or unauthorized usage) and we are under no obligation to retain a record of any terminated Account or any data or information that You may have stored.
3.3 Security Procedures; Prohibition on Alter-Egos.
To the extent applicable, when accessing the Site and/or Your Account, or requesting Services, You are required to use the security procedures currently or hereafter used the Company to confirm that only authorized users have access to the Services, the Site, and the Accounts. You are prohibited from utilizing alter-egos or other disguised identities when creating an Account, accessing the Site and/or utilizing the Services. All forms of indirect and ‘spoofed’ access are strictly prohibited. You are prohibited from accessing or attempting to access portions of the Site that are not intended for public usage and Your use of any information obtained from non-public portions of the Site is expressly prohibited.
4. Your Use of the Site.
4.1 Service Requesters’ Responsibility for Resources.
The Company does not provide You with the infrastructure or equipment to access the Site or to request Services. You, at Your sole cost and expense, are responsible for (i) obtaining and maintaining Your access to the Internet including all charges by internet service providers, (ii) obtaining and maintaining a computer system with a browser capable of accessing the Site and with appropriate anti-spyware, anti-malware and antivirus protections to permit You to detect and protect Your computer system from malicious software or other malware, and (iii) all costs, expenses and fees incurred to acquire tools or other equipment to access the Site and any other costs or expenses incurred in order to use the site or to perform Services.
4.2 Acknowledgement of Internet Risks and Associated Obligations.
You understand and acknowledge that the Internet is an unsecure medium and some websites may be hostile and attempt to infect Your computer system or software, or deceive You into divulging personal information for illegal purposes. You should never provide personal, sensitive or confidential information requested in any email, including, without limitation, an email requesting such information which purports to be from the Company. All Services requested and obtained via the Site from Clickworkers are requested and obtained at Your own risk and the Company is not responsible for (i) any loss to You caused during or as a result of Your visit to a third party website, (ii) any fraudulent email or any other fraudulent activity on the Internet, or (iii) any adverse consequences resulting from any virus, spyware or malware infecting Your computer system, including, without limitation, any loss of data, damage to Your computer system, identity theft or any other adverse consequence. You understand that browser protection, anti-spyware, and antivirus software can reduce risk on the Internet, but not eliminate it. You agree to take appropriate measures to protect Yourself from web and email fraud while interacting with the Site.
4.3 Provision of Information.
You must provide accurate and complete information for all Work Requests in accordance with our requirements, as may be designed by us from time to time, including the Terms and Policies. You represent and warrant to the Company that You have all requisite rights necessary to submit such information to the Company.
4.4 General Restrictions.
You must comply with all applicable laws and all provisions of this Agreement and all other Terms and Policies when using the Site and requesting Services. You will not, and will not permit anyone else to, utilize the Site, the Services or any information or other data acquired from Your use of the Site to (i) store, copy, modify, distribute, or resell any of the materials that are part of the Site or compile or collect any materials of the Site as part of a database or other work, (ii) use any automated tool, programs, robotic algorithms or products to automatically download or “spider” the Site or any portion thereof, (iii) take any action that imposes, or may impose, in our sole discretion, an unreasonably or disproportionately large load on our infrastructure, (iv) interfere or attempt to interfere with the proper working of the Site or conduct any activities on the Site intended to circumvent, bypass or disable any digital rights management, usage rules, or other security features of the Site or bypass any measures we may use to prevent or restrict access to the Site, (v) threaten the integrity, performance, or availability of the Site or any Services, (vi) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Site or any materials on the Site, (vii) attempt to incite illegal activity or defame, abuse, harass, threaten, intimidate or otherwise violate the legal rights of others, (viii) post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any user or attempt to impersonate any other user, (ix) create or submit unwanted email or spam to any other user or any URL, (x) access or attempt to access data or materials not intended for You, or (xi) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization. The Company reserves the right to investigate and take legal action against anyone who violates the restrictions set forth in this Agreement, including, without limitation, removing any offending user content, and terminating access to the Site and the Services.
4.5 Fraud and Unacceptable Activity.
The existence of Fraud and Unacceptable Activity on the Site will be determined by the Company, in its sole discretion, and shall include, without limitation: (i) any attempts to provide credit or consideration for Services that were not performed; (ii) awarding approval grades with respect to clearly unacceptable or poor work; (iii) providing false or misleading Feedback regarding Your performance or the performance of others; (iv) agreeing to or attempting to influence Feedback regarding Your performance or the performance of others; (v) any actions that may compromise the integrity of the Feedback system; (vi) use of any methods of requesting Services that are unlawful or unethical; and (vii) use of any property, intellectual property or rights of any third party without receiving proper authorization or consent. The Company reserves the right to (i) investigate and take legal action against anyone who, in our sole discretion, violates the restrictions set forth in this Agreement or in any other Terms and Policies or engages in any Fraud and/or Unacceptable Activity, and/or (ii) terminate Your Account and Your access to the Site and the Services in the event that You violate the restrictions set forth in this Agreement or in any other Terms and Policies or engage in any Fraud and/or Unacceptable Activity.
5. Payment Facilitation.
5.1 Payment Facilitation Generally.
The Company will process all payments from Service Requesters and all payments to Clickworkers. Service Requesters shall pay for Services in one of two ways, as determined by the Company in its sole and absolute discretion: (1) with respect to those Service Requesters that have received the Company’s authorization to post Work Requests directly to the Site, which authorization may be granted, withheld, and/or revoked in the Company’s sole and absolute discretion, that Service Requester shall pay, directly to the Company’s PayPal account, at the time a given Work Request is posted to the Site, the total compensation agreed upon by such Service Requester and the Company for the completion of such Work Request (the “Pre-Payment Option”); or (2) with respect to those Service Requesters who do not have the Company’s authorization to post Work Requests directly to the Site such Service Requesters will submit Work Requests to the Company’s customer service department and will be billed by the Company in the amount and pursuant to the payment terms agreed upon by the Service Requester and the Company with respect to a given Work Request (the “Billing Option”).
5.2 Payment for Completed Services.
Upon timely receipt of a completed task from a Clickworker Work Product, the Company will check to see that such Work Product reasonably conforms to the provisions of the related Work Request and will identify any deficiencies with such Work Product. In the event the Company in its sole and absolute discretion, determines a particular Work Product is deficient for any reason, the Clickworker who produced such Work Product will be given a period of seventy-two (72) hours within which he or she may cure such deficiencies. In the event the Company does not identify any deficiencies with a particular Work Product upon the initial submission of such Work Product to the Company, or if the Clickworker responsible for such Work Product cure any deficiencies within the aforementioned seventy-two (72) hour period, the Company will accept such Work Product and the provisions of this Section 5.2 will apply.
In the event a Clickworker fails to cure any deficiencies in his or her Work Product, as determined by the Company in its sole discretion, You will not be obligated to pay for such deficient Work Product and the provisions of this Section 5.2 will not apply unless and until another Clickworker completes Your Work Request and the related Work Product is accepted by the Company. The Company will only disburse funds in accordance with all applicable laws and regulations, including, without limitation, the United States Patriot Act and the regulations of the United States Office of Foreign Assets Control, and pursuant to the following:
- (a) Work Requests Paid via Pre-Paid Option. Upon the Company’s acceptance of Work Product with respect to a completed task that was paid for via the Pre-Payment Option, the Company will allocate funds to each applicable Clickworker’s payment account and will disburse such funds to such Clickworker in accordance with the Company’s terms and conditions for Clickworkers; or
- (b) Work Requests Paid via Billing Option. Upon the Company’s acceptance of Work Product with respect to a completed task that was submitted via the Billing Option, the Company will allocate funds to the applicable Clickworker’s payment account, will disburse such funds to such Clickworker in accordance with the Company’s terms and conditions for Clickworkers, and will invoice the Service Requester for the total amount of compensation and pursuant to the payment terms agreed upon by such Service Requester and the Company. Service Requesters may pay the amounts due pursuant to such invoices by remitting a check to the Company, by paying by credit card via the Company’s PayPal account, by wire transfer, or by any other means approved by the Company.
5.3 Delay of Payments and Results of Termination of Account.
The Company reserves the right to delay or refuse to transfer or disburse any amounts in the event the Company believes that a Clickworker or a Service Requester is in violation of this Agreement or any other Terms and Policies. In the event this Agreement is terminated by either party pursuant to Section 10 below, all tasks that have been completed by Clickworkers but not accepted by the Company as of the effective date of such termination, as well as all tasks that have been assigned to a Clickworker but not yet completed, shall be deemed to be accepted and the Clickworkers who performed Services related to such tasks shall be entitled to payment therefor and You shall be obligated to pay the Company the amount agreed with respect to each such Work Request. Further, in the event this Agreement is terminated by either party pursuant to Section 10 below, unless the Company and You agree otherwise, the Company will use its reasonable best efforts to promptly terminate all activities related to Your Work Requests so as to prevent any additional tasks from being assigned to Clickworkers. With respect to those tasks for which You have prepaid the Company but which have not been assigned to a Clickworker as of the Company’s receipt of Your notice of termination, the Company will refund ninety percent (90%) of such prepaid amount within thirty (30) days of the effective date of termination; provided, however, that the Company shall have the right to off set any such refund against any other amounts You owe to the Company at the time of termination.
5.4 The Company’s Responsibility for Payments.
The Company shall only be responsible for transferring or disbursing funds pursuant to the terms of this Agreement.
5.5 PayPal Acknowledgement.
You hereby acknowledge and agree that the Company has no affiliation with PayPal, makes no representations or warranties regarding PayPal or its services, and has no ability to control or exert influence over PayPal or its website, systems or services. The Company shall not be responsible for any fees, costs and/or expenses You may incur in connection with Your use of PayPal and shall not be liable for any losses You may incur as a result of PayPal’s performance or failure to perform.
6. Compliance with Laws.
6.1 Taxes.
Except as expressly set forth herein with respect to the Company’s preparation of applicable tax documentation, you agree that it is Your responsibility to determine any and all taxes and duties, including, without limitation, sales, use, transfer, value added, withholding and other taxes and/or duties assessed, incurred or required to be collected, paid or withheld for any reason in connection with any Work Request or performance of Services, or Your use of the Site, or otherwise in connection with any action, inaction or omission of You or any of Your affiliates, or any of Your or Your affiliates respective employees, agents, contractors or representatives (“Taxes”) and to collect, withhold, report, and remit correct Taxes to the appropriate tax authorities, and to otherwise be responsible for the collection and payment of any and all Taxes. YOU ALSO ACKNOWLEDGE AND AGREE THAT THE COMPANY AND ITS AFFILIATES HAVE NO OBLIGATION TO DETERMINE WHETHER TAXES APPLY AND ARE NOT RESPONSIBLE FOR THE COLLECTION, REPORTING OR REMISSION OF ANY TAXES OWED BY ANY SERVICE REQUESTER OR ANY CLICKWORKER.
6.2 Permits.
You acknowledge and agree that it is Your responsibility to determine whether and to what extent any permits, registration, authorizations and/or filings (including, without limitation, with respect to the transfer of technology) are required by any governmental agency in any jurisdiction in which You have requested or received Services (collectively, “Permits”). YOU ALSO ACKNOWLEDGE AND AGREE THAT THE COMPANY AND ITS AFFILIATES HAVE NO OBLIGATION TO DETERMINE WHETHER ANY SUCH PERMITS APPLY TO ANY TRANSACTION BETWEEN ANY SERVICE REQUESTER AND ANY CLICKWORKER.
6.3 Compliance with Laws Generally.
The Site and the Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations of any jurisdiction in which You request or receive Services. Your compliance with applicable laws is not limited to jurisdictions within the United States (including US Federal law) but also the laws, regulations and ordinances of any jurisdiction from which You access the Site or from which You request or receive Services.
7. Disclosure of Information; Preparation of Tax Notices.
7.1 Our Use of Data and Communications; Tax Information.
The Company’s Privacy Policy and this Agreement describe our collection, use, and disclosure of information associated with the Site, including how we handle Personally Identifiable Information. Each Service Requester must provide the Company with that Service Requester’s company name and Employer Identification Number (“Service Requester Tax Information”). Your Service Requester Tax Information may be used by the Company to prepare any tax forms or other documentation required by applicable law for those Clickworkers who perform Services relating to your Work Request. You hereby consent to the disclosure of Your Service Requester Tax Information and other data as set forth in this Section 7 and in the Company’s Privacy Policy.
7.2 Your Use of Data and Communications.
You may only use information or other data obtained from Your use of the Site to the extent necessary for You to use the Site in compliance with this Agreement and all other Terms and Policies. Without limiting the foregoing, You may not use information or other data obtained from Your use of the Site for purposes of solicitation, advertising, marketing, unsolicited email or spamming, harassment, invasion of privacy, or other objectionable conduct. The Company will not provide you any contact or personal information regarding any Clickworker and You hereby agree to not seek any such information. Further, You agree that You will only accept Work Product that has been submitted to You via the Site and that You will not contact, attempt to contact, or directly contract with any Clickworker.
8. NO WARRANTIES; LIMITATION OF LIABILITY.
8.1 Use at Service Requester’s Own Risk.
Any use of the Site, the Services, reliance upon any of the information received or provided in connection therewith and any use of the Internet generally shall be at Your sole risk. The Company disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of any Work Product received from Clickworkers and of information accessible by use of the Site. In no event shall the Company’s provision of the Site be deemed or otherwise interpreted as the Company’s guaranty, recommendation, referral, sanction or endorsement of any person, product, a service. IN ALL INSTANCES, WE ENCOURAGE SERVICE PROVIDERS TO SEEK LEGAL COUNSEL AND/OR OTHER PROFESSIONAL ADVICE AS NECESSARY OR APPROPRIATE.
8.2 “As Is” and “As Available”.
THE SITE AND ANY WORK PRODUCT (INCLUDING INFORMATION PROVIDED IN CONNECTION THEREWITH) IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. THE COMPANY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. THE COMPANY DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, TIMELINESS AND PERFORMANCE OF THE SERVICES, AND ANY INFORMATION, ADVICE OR SERVICES OBTAINED FROM CLICKWORKERS AND THE TIMELINESS THEREOF THROUGH THE USE OF THE SITE OR ANY LINKS PROVIDED THEREIN. FURTHERMORE, THE COMPANY SHALL NOT BE LIABLE TO YOU FOR THE CONSEQUENCES ARISING FROM ANY INTERRUPTION OF THE SITE OR THE SERVICES OR ANY ERRORS.
8.3 No Representations or Warranties.
NEITHER THE COMPANY, NOR ITS AFFILIATES, MAKES ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING (1) THE OPERATION OR PERFORMANCE OF THE SITE OR THE SERVICES, (2) THE NATURE, CONTENT OR ACCURACY (EITHER WHEN POSTED OR PROVIDED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY INFORMATION, MATERIAL, APPARATUS OR OTHER PROCESS CONTAINED ON, DISTRIBUTED THROUGH, OR LINKED, DOWNLOADED OR ACCESSED FROM THE SITE, OR (3) THE INTERNET GENERALLY.
8.4 Disclaimer of Damages.
UNDER NO CIRCUMSTANCES SHALL THE COMPANY, OR ITS AGENTS, AFFILIATES, SUPPLIERS OR PARTNERS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, LOST PROFITS, OR SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE AND/OR THE SERVICES WHETHER THE DAMAGES ARE FORSEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.5 Limitation of Liability.
WITHOUT LIMITING THE FOREGOING, THE COMPANY’S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT AND YOUR USE OF THE SITE AND THE SERVICES SHALL NOT EXCEED THE AMOUNT OF FEES EARNED BY THE COMPANY IN CONNECTION WITH YOUR REQUESTS FOR SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
8.6 Jurisdictional Limitations.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION AND THAT MAY NOT BE LIMITED BY THESE TERMS, PROVIDED HOWEVER YOU ACKNOWLEDGE AND AGREE THAT TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU WAIVE ANY SUCH STATUTORY RIGHTS WITH RESPECT TO IMPLIED WARRANTIES.
9. Indemnification.
You hereby agree to indemnify and hold harmless the Company and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees actually incurred) arising out of or related to any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity (a “Claim”) that arises out of or relates to: (i) any actual or alleged breach of Your representations, warranties, or obligations set forth in this Agreement (or any other violation of this Agreement or the Terms and Policies); (ii) Your use of the Site and/or Your receipt of Services; and/or (iii) Your violation of any law, or Your violation of the rights of any third party, including, without limitation, Your infringement or alleged infringement of any intellectual property or other right of any person or entity. The foregoing indemnification obligations shall survive any termination of this Agreement. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You, which will not excuse Your indemnity obligations under this Section 9. You agree not to settle any matter subject to the foregoing indemnification obligations without the express written consent and approval of the Company.
10. Termination.
Your access to the Site and this Agreement may be suspended or terminated by the Company at any time for any reason or no reason, with or without prior notice, without liability to the Company. Subject to the provisions of Section 5.3 above, You may terminate this Agreement and all pending Work Requests by providing written notice to the Company pursuant to Section 13.4 below. Notwithstanding the foregoing or anything to the contrary contained herein, obligations and liabilities that arose prior to termination shall survive the termination of Your access to the Site and this Agreement.
11. Remedies Available to the Company.
11.1
The Company reserves the right to seek any and all remedies available at law or in equity in connection with Your violation of this Agreement.
11.2
We reserve the right to investigate complaints or reported violations of this Agreement and any other Terms and Policies and to take any action we deem necessary and appropriate. Such action may include reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties. In addition, we may take action to disclose any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, IP addresses and traffic information.
11.3
You agree that monetary damages may not provide a sufficient remedy to the Company for violations of this Agreement or any other Terms and Policies and You consent to injunctive or other equitable relief for such violations.
12. Digital Millennium Copyright Complaints.
The Company respects the copyright rights of others, and we ask our users and other third parties to do the same. In appropriate circumstances and at our discretion, we may remove, suspend, terminate access, or take other appropriate action against users or other third parties who infringe or repeatedly infringe the copyright rights of others. Therefore, if You reasonably believe that any material on the Site contains unauthorized reproductions of Your copyrighted work or otherwise infringes any copyright, and You reasonably believe it is appropriate to notify us to take any action/and You want us to take any action, then, as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512), (“DCMA”) You must promptly provide by email the following information to our Designated Agent at [email protected]:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single on-line site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing 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 us to locate the material;
- Information reasonably sufficient to permit us to contact You, such as an address, telephone number and e-mail address;
- A statement that You have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
- A statement that the information in the notice 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.
Attention: Operations Department
ANY NOTICE THAT DOES NOT COMPLY WITH THE REQUIREMENTS OF TITLE 17, UNITED STATES CODE, SECTION 512(C)(3) WILL NOT RECEIVE A RESPONSE. NOTHING IN THIS SECTION 12 IS INTENDED TO EXPAND OR SUPPLEMENT THE LEGAL RIGHTS, PROCEDURES AND REMEDIES AUTHORIZED AND GRANTED UNDER DCMA AND WE DO NOT REPRESENT ANY RELATED UNDERTAKING BY THE COMPANY NOT OTHERWISE EXPRESSLY REQUIRED BY APPLICABLE LAW.
13. Miscellaneous.
13.1 Assignment.
You may not assign this Agreement or any of Your rights herein, and any attempt to do so is null and void.
13.2 Severability.
If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
13.3 Notices.
You consent to the use of electronic means to complete this Agreement and to provide You with any notices related to this Agreement. You also consent to the use of electronic records to store information related to this Agreement and Your use of the Site.
Any notices to the Company must be sent in writing to the Company, 2 Park Avenue, 20th Floor, New York, NY 10016, Attention: Operations Department, via first class mail, return receipt with a copy to [email protected], and are deemed given upon the date of receipt.
13.4 Governing Law.
Performance under this Agreement shall be deemed to take place in the State of New York. This Agreement shall be governed by the laws of the State of New York, excluding its conflicts of laws principles. Any disputes arising from this Agreement shall be exclusively adjudicated in the state and federal courts having jurisdiction over the City Rochester and Monroe County, New York and You hereby irrevocably and unconditionally agree and consent to the exercise of jurisdiction over You by the state or federal courts having jurisdiction over the City of Rochester and in Monroe County, New York.
13.5 Waviers.
The Company will not be considered to have waived any of its rights or remedies, or any portion thereof, unless the waiver is in writing and signed by an authorized representative of the Company. The Company 's failure to enforce the strict performance of any provision of this Agreement or any other Terms and Policies shall not constitute a wavier of the Company’s right to subsequently enforce such provision or any other provisions of this Agreement or any other Terms and Policies.
13.6 Survivability.
Terms and conditions of this Agreement which by their express language or by their sense and context survive the termination or cancellation of this Agreement will so survive.
13.7 Entire Agreement.
This Agreement, as supplemented by any Work Request, together with all other Terms and Policies constitute the entire agreement between You and the Company with respect to the subject matter contained herein.