Terms of Service
MENDER PLATFORM TERMS OF SERVICE
MENDER PLATFORM TERMS OF SERVICE
These Terms of Service constitute a legally binding agreement between you and Mender App L.L.C. (“Mender”) governing your use of the Mender Platform. Mender’s websites (including www.bemender.com and/or www.bemender.com) (the “Sites”), mobile applications (the “Apps”), and related services, information and communications are collectively referred to as the “Mender Platform.”
BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR USING THE MENDER PLATFORM, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT) AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND ABIDE BY ITS TERMS, YOU MAY NOT USE OR ACCESS THE MENDER PLATFORM.
1. The Mender Platform Connects Providers and Clients
The Mender Platform is a web-based communications platform which enables connections between Clients and Providers. “Clients” are individuals and/or businesses seeking to obtain short-term services (“Services”) from Providers and are therefore clients of Providers, and “Providers” are individuals and/or businesses seeking to perform Services for Clients. Clients and Providers together are hereinafter referred to as “Users.” If you agree on the terms of a Service with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
PROVIDERS ARE INDEPENDENT BUSINESS OWNERS. PROVIDERS ARE INDEPENDENT CONTRACTORS OF CLIENTS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF MENDER. MENDER DOES NOT PERFORM SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES. BY CONNECTING PEOPLE AND BUSINESSES SEEKING SERVICES WITH SERVICE PROVIDERS, MENDER OPERATES AS AN ONLINE REFERRAL SERVICE THAT CONNECTS CLIENTS WITH SERVICE PROVIDERS (PROVIDERS) WHO WISH TO PERFORM A VARIETY OF SERVICES.
USERS HEREBY ACKNOWLEDGE THAT MENDER DOES NOT SUPERVISE, SCOPE, DIRECT, CONTROL OR MONITOR A PROVIDER’S WORK AND EXPRESSLY DISCLAIMS, TO THE EXTENT PERMITTED BY LAW, ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE SERVICES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE.
Any reference on the Mender Platform to a Provider being licensed or credentialed in some manner, or "badged," “reliable,” “reliability rate,” “elite,” “great value,” "background checked," “vetted” (or similar language) designations indicates only that the Provider has completed a relevant account process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Mender of such Provider’s skills or qualifications or whether they are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for Clients to evaluate when they make their own decisions about the identity and suitability of Providers whom they contact or interact with via the Mender Platform.
The Mender Platform enables connections between Users for the fulfillment of Services. Mender is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Services, Providers, or Clients, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings or reviews provided by Users with respect to each other. Mender makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Services requested or services provided by, or the communications of or between, Users identified through the Mender Platform, whether in public or private, via on- or off-line interactions, or otherwise howsoever.
2. User Background Checks, COVID-19, and User Representations and Warranties
(a) User Background Checks
Users may be subject to a review process before they can register for and during their use of the Mender Platform, which may include but is not limited to: identity verification, right to work checks, and criminal background checks, using third party services as appropriate (“Background Checks”). Although Mender may perform Background Checks, Mender cannot confirm that each User is who they claim to be, and Mender cannot and does not assume any responsibility for the accuracy or reliability of Background Check information.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Mender will not be liable for any false or misleading statements made by Users of the Mender Platform.
NEITHER MENDER, NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY REFERRED TO AS “AFFILIATES”) IS RESPONSIBLE OR LIABLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE MENDER PLATFORM AND, TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE MENDER AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE MENDER PLATFORM, INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH EXPOSURE, INFECTION, AND/OR SPREAD OF COVID-19. TO THE EXTENT APPLICABLE, YOU AGREE TO WAIVE THE BENEFITS OF CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES: 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.
The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is reported to be extremely contagious. The state of medical knowledge is evolving, but the virus is believed to spread from person-to-person contact and/or by contact with contaminated surfaces and objects, and even possibly in the air. People reportedly can be infected and show no symptoms and therefore spread the disease. The exact methods of spread and contraction are unknown, and there is no known treatment, cure, or vaccine for COVID-19. Evidence has shown that COVID-19 can cause serious and potentially life-threatening illness and even death. We cannot prevent you from becoming exposed to, contracting, or spreading COVID-19 while performing or receiving Services. It is not possible to prevent against the presence of the disease. Therefore, if you choose to contract for Services, you may be exposing yourself to and/or increasing your risk of contracting or spreading COVID-19.
Personal Health Certification
Prior to each instance of contracting for Services, every User will be required to self-certify that they and persons present for the Services will wear face masks throughout their presence at performance of Services, are symptom-free, and will follow CDC and local guidelines related to COVID-19.
Specifically, Users will confirm that:
They will wear a face mask or covering;
They will not contract for Services if they have COVID-19, think they have it, or have related symptoms;
They will sanitize their hands frequently; and
To the extent practicable, they will leave windows open and avoid recirculated air.
Anyone who does not agree to the personal health certification will be unable to contract for Services on the Mender Platform.
(c) User Representations and Warranties
All Users represent and warrant that:
You are at least of the legally required age in the jurisdiction in which you reside (18 years of age or older for U.S. based users), and are otherwise capable of entering into binding contracts;
You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide;
You will respect the privacy (including without limitation private, family and home life), property, and data protection rights of Users and will not record (whether video or audio or otherwise) any Service or any interaction by or with any User and/or Mender in connection with the Mender Platform without the prior written consent of Mender and/or the relevant User, as applicable;
You will fulfill the commitments you make to other Users, communicate clearly and promptly through the messaging thread, be present and/or available at the time you agree upon with your Provider or Client as the case may be;
You will act professionally and responsibly in your interactions with other Users;
You will use your real name or business name and an up-to-date photo on your profile;
When using or accessing the Mender Platform, you will act in accordance with all applicable local, state, provincial, national, or international law or custom and in good faith;
You will not use the Mender Platform for the purchase or delivery of alcohol, or any other controlled or illegal substances or services.
Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You do not have any motivation, status, or interest that Mender may reasonably wish to know about in connection with the Mender Platform, including without limitation, if you are using or will or intend to use the Mender Platform for any journalistic, academic, investigative, or unlawful purpose.
If present for any Services, you will wear a face mask or covering, certify that you are symptom-free, and will follow CDC and local guidelines related to COVID-19.
Providers additionally represent and warrant that:
When using the Mender Platform, you are operating as a sole proprietor, partnership, limited liability company, limited liability partnership, corporation or other business entity;
You are customarily engaged in an independently established business of the same nature as the services performed for Clients through the Mender Platform, and maintain an independent clientele, including the ability to obtain work through other referral agencies;
You have the unrestricted right to work in the jurisdiction in which you will be performing Services;
If the Service is performed in a jurisdiction that requires you to have a business license or business tax registration, you have the required business license or business tax registration (including but not limited to a state contractor’s license pursuant to California Business and Professions Code section 7000 et seq., if such license is applicable to the Service you are performing);
You are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Services (including but not limited to a state contractor’s license pursuant to California Business and Professions Code section 7000 et seq., if such license is applicable to the Service you are performing);
You have any and all insurance required to operate your business and/or provide your services;
You will honor your commitments to other Users on the Platform, including by responding to invitations promptly; performing the Service(s) as agreed upon with your Client; and providing timely, high-quality services to your Clients;
You will only offer and provide services for which you have the necessary skills and expertise, and provide those services safely and in accordance with all applicable laws;
You are free from the control and direction of Mender in connection with the Services.
You will deliver the Services to the Client under your name, not under Mender’s name;
You will provide your own tools and supplies to perform the Services;
You set your own hours and terms of work and negotiate your hours and terms of work directly with the Client, through the Service Agreement defined below.
3. Contract between Clients and Providers
You acknowledge and agree that a legally binding contract with another User (the “Service Agreement”) is formed when you and that User agree on the terms of a Service. The terms of the Service Agreement include the terms set forth in this Section, the engagement terms proposed and accepted on the Mender Platform, and any other contractual terms accepted by both the Provider and their Client to the extent such terms do not conflict with the terms in this Agreement, including this Section, and do not expand Mender’s obligations or restrict Mender’s rights under this Agreement. Mender is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstances, create an employment or other service relationship between Mender and the Provider, nor will it create an employment relationship between the Client and the Provider. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Mender. Mender’s role is limited beyond enabling connections between Clients and Providers via its web-based communications platform. Mender disclaims any other agency or authority to act on behalf of the Provider, and assumes no liability or responsibility for any acts or omissions of the Provider, either within or outside of the Mender Platform.
Where approved in advance by the Client, the Provider is not obligated to personally perform the Service. Providers may engage assistants, helpers, subcontractors or other personnel (collectively “Provider Assistants”). The Provider assumes full and sole responsibility for the acts and omissions of such Provider Assistants and is fully responsible for the lawful payment of all compensation, benefits and expenses of Provider Assistants, if any, and for all required and applicable tax withholdings as to such Provider Assistants. Clients are responsible for confirming with their Provider that any Provider Assistants are registered Providers on the Mender Platform and Clients understand that they are entering into separate Service Agreements with the Provider and each Provider Assistant.
While using the Mender Platform, Clients, in their sole and absolute discretion, determine whether they will be present or not when a Service is performed. Clients who elect not to be present when a Service is performed agree that if someone other than them books the Service on their behalf or is present when the Service is performed, they are appointing that person as their agent (“Client’s Agent”) and the Provider may take and follow direction from the Client’s Agent as if such direction was given from the Client him or herself. If you are a Client’s Agent and accessing and using the Mender Platform on behalf of a Client, you represent that you have the authority to act as their agent and to bind that person as the principal to all provisions of the Terms of Service. Client assumes full and sole responsibility for the acts and omissions of Client’s Agents.
The Client shall pay their Provider(s) in full for all Service services at the rates agreed to by the parties in the Service Agreement. Each User agrees to comply with the Service Agreement and this Agreement during the engagement, performance and completion of a Service.
4. Billing and Payment
Users of the Mender Platform contract for Services directly with other Users. Mender will not be a party to any contracts for Services or services. Mender is not obligated to compensate Provider for Client’s failure to pay for services.
Providers are responsible for accurately invoicing their Clients within 24 hours of the work being performed, even if the Service is not completed in its entirety or is designated as “ongoing”. Clients will be responsible for paying the invoice(s) for each Service (the “Invoice(s)”), which will include (i) the pricing terms of the Service provided by the Provider and agreed upon by the parties (“Service Payment”), (ii) any out of pocket expenses agreed upon by the parties and submitted by the Provider in connection with the Service, (iii) any service charges assessed by Mender as payable for the use of the Mender Platform, and (iv) the platform fee Mender assesses to the Client, which is used to offset Mender’s cost of providing Users with customer support, various business objectives, or (vi) cancellation fees, if applicable. In addition, a tip or gratuity, as applicable, may be added by the Client or at the Client’s direction to the Invoice(s) and all such tips or gratuities shall go directly to the Provider. Clients may also be charged credit card processing fees equal to 3% of the aggregate expense amount for all expenses related to a Service individually or Services in the aggregate over a 30-day period. Providers will be responsible for paying (i) cancellation fees, if applicable, and (ii) repayment of erroneous payments.
Users of the Mender Platform will be liable for any and all taxes required to be paid on the Services provided under the Agreement.
5. Public Areas; Acceptable Use
The Mender Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, service postings, messaging (chat) areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Mender Platform, you should not share your personal contact information in Public Areas with other Users.
Without limitation, the Mender Platform may not be used for any of the following purposes:
To defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and Mender staff;
To publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful language, material or information;
To upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or Mender;
To upload files or scripts such as Trojan horses, corrupt files, SQL injections, worms, timebombs, cancelbots or any other files or software that may damage Mender or its Users’ computers;
To advertise or offer to sell any goods or services for any commercial purpose through the Mender Platform which are not relevant to the Service services;
To conduct or forward surveys, contests, pyramid schemes, or chain letters;
To impersonate another person or a User or allow any other person or entity to use your user profile to post or view comments.
While using the Mender Platform, you may not:
Use the Mender Platform for any unauthorized or illegal purpose, including but not limited to posting or performing a Service in violation of local, state, provincial, national, or international law;
Post or upload any content which you have not obtained the necessary rights and permissions to use accordingly;
Post the same Service repeatedly (“Spamming”);
Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the Mender Platform;
Restrict or inhibit any other User from using and enjoying the Public Areas;
Imply or state that any statements you make (whether on or off the Mender Platform) are endorsed by Mender, without the prior written consent of Mender;
Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the Mender Platform, or the electronic addresses or personal information of others, in any manner;
Frame or utilize framing techniques to enclose the Mender Platform or any portion thereof;
Hack or interfere with the Mender Platform, its servers or any connected networks;
Adapt, alter, license, sublicense or translate the Mender Platform for your own personal or commercial use;
Remove, alter, or misuse, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Mender and Affiliates;
Upload content to the Mender Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
Use the Mender Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Mender Platform as set forth herein;
Use the Mender Platform to collect usernames, email addresses, or other personal information of Users by electronic or other means;
Use the Mender Platform or the Service services in violation of this Agreement;
Use the Mender Platform in a manner that is false or misleading (directly or by omission or failure to update information), or for the purpose of accessing or otherwise obtaining Mender’s trade secret information for public disclosure or other purposes;
Attempt to circumvent the service charge or platform fee in any way including, but not limited to, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number;
Cause any third party to engage in the restricted activities above; or
Use tools with the goal of masking your IP address.
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. Mender will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
6. Mobile App Updates and Upgrades
7. Deactivation and Suspension
Mender may suspend your right to use the Mender Platform pending its investigation of a potential breach by you of this Agreement. Mender may deactivate your account or limit your use of the Mender Platform upon its determination that you breached a provision of this Agreement (a “User Breach”). Mender will provide you with written notice of its determination. If you wish to appeal this determination, please contact Account Maintenance at firstname.lastname@example.org within 14 days of receipt of such notice with the grounds for your appeal.
If Mender suspends or deactivates your account or limits your use of the Mender Platform pursuant to this Section, you are thereafter prohibited from registering and creating a new account under your name or business 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.
Even after your right to use the Mender Platform is suspended, terminated or limited, this Agreement will remain enforceable against you. Mender reserves the right to take appropriate legal action pursuant to the Agreement.
Mender reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Mender Platform at its sole and absolute discretion. Mender will provide you with notice of any such modification or discontinuation as required by law. To the extent permitted by law, Mender shall not be liable to you for any modification or discontinuance of all or any portion of the Mender Platform. Mender has the right to restrict anyone from completing registration as a Provider if such person may threaten the safety and integrity of the Mender Platform, or if 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 Mender Platform and deactivating your account. All parts of this Agreement 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 or your use of the Mender Platform.
8. Account, Password, Security, and Telephone Communications
You must register with Mender and create an account to use the Mender Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Mender for accessing the Mender Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. Mender has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to notify Mender immediately.
You acknowledge that telephone calls to or from Mender, together with its agents and Affiliates, may be monitored and recorded for the purposes of quality control and training.
You verify that any contact information provided to Mender, our agents and affiliates, and Users, including, but not limited to, your name, business name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or deactivate your account. Should any of your contact information change, you agree to immediately notify Mender before the change goes into effect by visiting https://www.menderapp.com/faqs and https://www.menderapp.com/contact-us. If the change regards ownership of your telephone numbers, you may notify Mender by texting STOP to any text message sent to the retiring phone number.
9. User Generated Content
“User Generated Content” is defined as any information and materials you provide to Mender, its corporate partners, or other Users in connection with your registration for and use of the Mender Platform and participation in Mender promotional campaigns, including without limitation the information and materials posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Mender is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that Mender has no obligation to monitor or review User Generated Content but reserves the right to limit or remove User Generated Content if it is not compliant with the terms of this Agreement.
You hereby represent and warrant to Mender that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the transfer or sale of illegal, counterfeit or stolen items; (c) will not infringe on any third party’s privacy, or copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or personality (to the extent recognized by law in the country where the Service is performed); (d) will not violate any law, statute, ordinance, code, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, incitement of hatred or false or misleading advertising, anti-spam or privacy); (e) will not be defamatory, libelous, malicious, threatening, or harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, scripts such as Trojan Horses, SQL injections, worms, time bombs, corrupt files, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not claim or suggest in any way that you are employed or directly engaged by or affiliated with Mender or otherwise purport to act as a representative or agent of Mender; and (i) will not create liability for Mender or cause Mender to lose (in whole or in part) the services of its Internet Service Providers (ISPs) or other partners or suppliers.
The Mender Platform hosts User Generated Content relating to reviews and ratings of specific Providers (“Feedback”). Feedback is such User’s opinion and not the opinion of Mender, and has not been verified or approved by Mender. You agree that Mender is not responsible or liable for any Feedback or other User Generated Content. Mender encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Mender is not obligated to investigate any remarks posted by Users for accuracy or reliability or to consider any statements or materials posted or submitted by Users about any Feedback but may do so at its discretion. You agree that Feedback enables Users to post and other Users to read about Users’ expression of their experiences and that you will not complain or take any action merely because you happen to disagree with such feedback. You may request removal of a review that violates this Agreement or [????MENDER’S RATINGS AND REVIEWS POLICY] by contacting the Support team at email@example.com. Each Client should undertake their own research to be satisfied that a specific Provider has the right qualifications for a Service.
Mender respects the personal and other rights of others, and expects Users to do the same. Mender is entitled to identify a User to third parties who claim that their rights have been infringed by User Generated Content submitted by that User, so that they may attempt to resolve the claim directly.
If a User believes, in good faith, that any User Generated Content provided on or in connection with the Mender Platform is objectionable or infringes any of its rights or the rights of others (e.g. counterfeiting, insult, invasion of privacy), the User is encouraged to notify Mender. If a User discovers that User Generated Content promotes crimes against humanity, incites hatred and/or violence, or concerns child pornography, the User must notify Mender. Such notification can be made at firstname.lastname@example.org or mailed to 3964 Delta St, San Diego Ca 92113.
10. Mender Operates as an Online Marketplace
Mender operates as an online marketplace that connects Clients with service providers (Providers) who wish to perform a variety of Services. Mender does not perform Services and does not employ people to perform Services. Providers operate as independent business owners and are customarily engaged in an independently established business of the same nature as that involved in the services performed for Clients through the Mender Platform. Mender does not control or direct the Providers’ performance of their services or set their work locations or work hours. Providers provide services under their own name or business name, and not under Mender’s name. Providers provide their own tools and supplies to perform their services; Mender does not provide the tools or supplies. Providers are free to maintain a clientele without any restrictions from Mender and are free to offer and provide their services elsewhere, including through competing platforms. Mender does not set Providers’ hours or terms of work. Providers are free to accept or reject Clients and contracts. Providers are not penalized for rejecting Clients or contracts, though if Providers accept a Client or contract through the Mender Platform, they are expected to fulfill their contractual obligations. Providers set their own rates for services performed in the Mender general marketplace, without deduction by Mender.
The Mender Platform is not an employment agency service or business and Mender is not an employer of any User. Providers acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Agreements and performing Services and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
11. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, typefaces and other content, including Mender designs, trademarks, and logos (collectively “Proprietary Material”) that Users see or read through the Mender Platform is owned by Mender, excluding User Generated Content, which Users hereby grant Mender a license to use as set forth below in Section 27. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Mender owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials. The Proprietary Material is protected by domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Mender Platform without Mender’s express prior written consent and, if applicable, the consent of the holder of the rights to the User Generated Content. Any use of such Proprietary Material other than as permitted herein is expressly prohibited.
The service marks and trademarks of Mender, including without limitation Mender, Mender for Good, and associated logos, are service marks owned by Mender. Any other trademarks, service marks, logos and/or trade names appearing via the Mender 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.
12. Copyright Complaints and Copyright Agent
Mender respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Mender Platform infringe upon your copyright or other intellectual property right, please send the following information to Mender’s Copyright Agent at: email@example.com):
A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Mender Platform where the material you claim is infringed is visible. Include enough information to allow Mender to locate the material, and explain why you think an infringement has taken place;
A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
Your name, address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
Your electronic or physical signature as the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
13. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Mender and agree that you will not, for the lifetime of your account on Mender plus 10 years thereafter, disclose, transfer, or use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than use of the Mender Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall promptly notify Mender in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall return all originals and any copies of any and all materials containing Confidential Information to Mender promptly upon deactivation of your User account or termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Mender’s trade secrets, confidential and proprietary information, and all other information and data of Mender that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other Proprietary Materials and confidential information relating to Mender or Mender’s business, operations or properties, including information about Mender’s staff, Users or partners, or other business information disclosed or obtained directly or indirectly in writing, orally or by drawings or observation.
14. Disclaimer of Warranties
(a) Use Of The Mender Platform Is Entirely At Your Own Risk
THE TECHNOLOGY OF THE MENDER PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, AND NON-INFRINGEMENT. MENDER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE MENDER PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE MENDER PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT 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 MENDER PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
Mender does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third-party through the Mender Platform or any hyperlinked website or featured in any banner or other advertising, and Mender will not be a party to or in any way be responsible for monitoring any transaction between you and other Users, or you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, Mender and Affiliates do not warrant that access to the Mender Platform will be uninterrupted or that the Mender Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Mender Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Service, service, information or materials provided through or in connection with the use of the Mender Platform. Mender and Affiliates are not responsible for the conduct, whether online or offline, of any User. Mender and Affiliates do not warrant that the Mender Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Mender and Affiliates will implement appropriate technical and organizational measures to ensure a level of security adapted to the risk for any personal information supplied by you.
Notwithstanding any feature a Client may use to expedite Mender selection, each Client is responsible for determining the Service and selecting their Provider and Mender does not warrant any goods or services purchased by a Client and does not recommend any particular Provider. Mender does not provide any warranties or guarantees regarding any Provider’s ability, professional accreditation, registration or license.
(b) No Liability
You acknowledge and agree that Mender is only willing to provide the Mender Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Mender and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the Mender Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by Mender and Affiliates, and any destruction of your User Generated Content. YOU AGREE TO WAIVE THE BENEFITS OF CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES: 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.
UNDER NO CIRCUMSTANCES WILL MENDER AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR, AND YOU HEREBY RELEASE MENDER AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY MENDER, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR ATTORNEYS FEES AND COSTS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE MENDER PLATFORM OR THE PROVIDER SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN SUCH CASES THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY BUT SHALL APPLY TO THE EXTENT ALLOWED BY APPLICABLE LAW.
MENDER AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS MENDER PLATFORM. MENDER AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE MENDER PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT MENDER AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO MENDER (IF YOU ARE A CLIENT) OR TOTAL SERVICE PAYMENTS PAID TO YOU BY CLIENTS (IF YOU ARE A PROVIDER), DURING THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless Mender and Affiliates from and against any and all Liabilities arising from or in connection with (i) your use or inability to use, or your participation on, the Mender Platform; (ii) your participation in Services, or your ability or inability to perform or obtain the performance of Services or to receive payment therefore; (iii) your breach or violation of this Agreement; (iv) your violation of any law, or the rights of any User or third party; (v) your failure to abide by your representations and warranties in Section 2; (vi) any content submitted by you or using your account to the Mender Platform, including but not limited to the extent such content may infringe on the intellectual property rights of a third party or otherwise be illegal or unlawful; (vii) if you are a Provider, the acts or omissions of any Provider Assistants; and (viii) if you are a Client, the acts or omissions of any Client’s Agents. Mender reserves the right, in its own sole and absolute discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Mender.
16. Informal Dispute Resolution
To expedite resolution and reduce the cost of any dispute, controversy or claim related to, arising from or regarding your use of the Mender Platform, your relationship with Mender, Services, or this Agreement (including previous versions), (“Dispute”), you and Mender agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least 30 days before initiating any out of court settlement, arbitration, or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is the one associated with your account, with an email copy to the email address you have provided to Mender. Mender’s address for such notice is firstname.lastname@example.org Attention: Legal.
PLEASE NOTE: FOR MORE INFORMATION ABOUT DISPUTE RESOLUTION TERMS, PLEASE REVIEW SECTION 30 BELOW).
17. App Store Sourced Apps
The following applies to any App accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"):
You acknowledge and agree that (i) the Agreement is entered into between you and Mender only, and Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) Mender, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Mender and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Mender, subject at all times to warranty limitations and exclusions set forth in this Agreement.
You and Mender acknowledge that, as between Mender and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Mender acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Mender and Apple, Mender (and not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, though only to the extent required by this Agreement.
You and Mender acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
18. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
19. General Provisions
Failure by Mender to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Mender with respect to its subject matter, and supersedes and governs any and all prior agreements or communications except as otherwise specified in the Arbitration Agreement in Section 30. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” provision in Section 30 below, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. You hereby acknowledge and agree that we may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Upon the effective date of the assignment of the Agreement (a) Mender shall be relieved of all rights, obligations and/or liabilities to you arising in respect of events postdating the effective date of the assignment and, (b) the assignee entity shall replace Mender for the performance of this Agreement. This Agreement may not be assigned or transferred by you without our prior written approval. Any assignment in violation of this Section shall be null and void. This Agreement will inure to the benefit of Mender, its successors and assigns.
Providers alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Services. Indeed, certain types of Services and services may be prohibited altogether, and it is the responsibility of Providers to avoid such prohibited Services and services. Penalties may include fines or other law enforcement. If you have questions about how national/ state/ provincial/ territorial and local laws apply to your Services and services on the Mender Platform, you should first seek appropriate legal guidance.
Because Mender does not supervise, scope, direct, control, or monitor a Provider’s work or performance of Services, Clients must determine for themselves whether a Provider is qualified to perform the specific Service at hand. Clients may wish to consult their national/state/provincial/territorial or local requirements to determine whether certain Services are required to be performed by a licensed or otherwise registered professional. Clients may also wish to discuss with their Provider any specific hazards, obstacles, or impediments in the Service location (both visible and concealed) that may impact the performance of the Service.
21. Changes to this Agreement and the Mender Platform
22. No Rights of Third Parties
The provisions of this Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and they will not be construed as conferring any rights to any third party (including any third party beneficiary rights except as set forth in Section 17) or to give any person or entity other than the User any interest, remedy, claim, liability, reimbursement, claim of action or any other claim of action with respect to or in connection with any agreement or provision contained herein or contemplated hereby. None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement, provided, however, that a Client’s Agent may act in the name of and on behalf of his/her Client.
23. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically, including without limitation by email or by posting Notices on the Sites. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all Notices under this Agreement will be in writing and will be deemed to have been duly given when posted, if by posting on the Sites; when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day it is shown as delivered by the overnight delivery service’s tracking information, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the Mender Platform, please contact us by email at email@example.com or by mail to 3964 Delta St, San Diego CA 92113.
24. Consent to Electronic Signatures
By using the Mender Platform, you agree to transact electronically through the Mender Platform. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
25. Telephone Communications and Agreement to be Contacted
(a) Your Consent to Receive Automated Calls/Texts.
You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive calls or text messages (which may include prerecorded voice messages, and/or autodialed calls) from Mender and Affiliates, or from independent contractors (including Providers) related to promotions, your account, registration, orientation, upcoming or scheduled Services, product alterations, changes and updates, service outages, reminders about incomplete or upcoming Services, follow ups to any push notifications delivered through our mobile application, any transaction with Mender, and/or your relationship with Mender. You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that Mender may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means. You agree to receive automated calls and text messages from Mender and Affiliates, or from independent contractors (including Providers) even if you cancel your account or terminate your relationship with Mender, except if you opt-out (see below). You understand that you do not have to agree to receive automated promotional calls/texts as a condition of purchasing any goods or services. To opt-out, please see the Opt-Out Instructions below.
(b) Opt-Out Instructions.
Your consent to receive automated calls and texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, text STOP to any text message you receive or email firstname.lastname@example.org and specify that you want to opt out of text messages. You may also text HELP for help. You acknowledge and agree to accept a final text message confirming your opt-out. To opt-out of automated voice calls (not text messages), you must (i) provide Mender with written notice revoking your consent to receiving automated calls; (ii) in that written notice, you must include your full name, mailing address, account number, and the specific phone number(s) for which you wish to stop automated calls; and (iii) send this written notice to email@example.com. It is your sole responsibility to notify Mender if you no longer want to receive automated calls or text messages. You waive any rights to bring claims for unauthorized or undesired calls or text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request. Please note that if you opt out of automated calls or text messages, we reserve the right to make non-automated calls to you.
(c) Fees and Charges.
There is no fee to receive automated telephone calls or text messages from Mender, our agents, affiliates, and independent contractors (including Providers). However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Mender and Affiliates, and independent contractors (including Providers) are not responsible for such charges.
(d) Unauthorized Use of Your Telephone Device.
You must notify Mender immediately of any breach of security or unauthorized use of your telephone device. Although Mender and Affiliates, and independent contractors (including Providers) will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.
(e) Your Indemnification to Mender.
You agree to indemnify Mender and Affiliates, and independent contractors (including Providers) for any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify Mender of any changes in your contact information, including telephone number. You agree to indemnify, defend and hold Mender and Affiliates harmless from and against any and all such claims, losses, liability, costs and expenses (including reasonable attorneys’ fees). Mender shall have the exclusive right to choose counsel, at your expense, to defend any such claims.
You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service provider, mobile service, and other services needed to receive calls and text messages. Text messaging may only be available with select carriers with compatible handsets. Your obligations under this Section 25 will survive termination of these Terms of Service.
26. Worker Classification and Withholdings
Mender does not employ Providers. Mender is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with a User’s use of the Mender Platform. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
27. Media and User Generated Content
To the extent permitted by law, you hereby grant Mender a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully-paid, unrestricted, sublicensable (through multiple tiers), transferable right to exercise all copyrights, publicity rights, and any other rights you have in (1) your User Generated Content and (2) any videotape, film, recording, photograph, voice, or any instrumental, musical, or other sound effects you provide to Mender (collectively, “Media”) in exchange for use of the Mender Platform, in any media now known or not currently known in order to market, operate, and improve upon the Mender Platform, including but not limited to the right to the following:
Use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Media or User Generated Content;
Exhibit, distribute, display, transmit, and broadcast on any and all media (including, without limitation, the internet), any Media or User Generated Content (or portion thereof) or any videotape, film, recording, or photograph (or portion thereof) that such User provides to Mender or that Mender takes of User, and use, reproduce, modify, or creative derivatives of such User Generated Content or Media, including such User’s picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”) in any format and through any distribution channels;
Reproduce in any and all media any recordings of such User’s voice, and any related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Mender Platform or any Mender promotional campaigns;
Use, and permit to be used, such User’s Media, Physical Likeness, and Voice in the advertising, marketing, and/or publicizing of the Mender Platform in any media, in any format and through any distribution channels; and
Use, and permit to be used, such User’s name and identity in connection with the Mender Platform or any Mender promotional campaigns.
Further, you hereby waive any and all moral rights in connection with the Media. Each User warrants and represents that they have the lawful authority to grant the rights set out above, and that such rights do not negatively impact any third party rights.
Each User acknowledges that Mender shall not owe any financial or other remuneration for using the Media, Physical Likeness, or Voice provided hereunder by such User, either for initial or subsequent transmission or playback.
Each User hereby waives all rights and releases Mender and Affiliates from, and shall hold harmless against any such parties for, any claim or cause of action, whether now known or unknown, including without limitation, for defamation, malicious falsehood, invasion of right to privacy, data protection, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s identity, Physical Likeness, Media, or Voice in connection with the Mender Platform. TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542, WHICH READS AS FOLLOWS:
“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.”
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542, WHICH READS AS FOLLOWS:
“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.”
If you are not a California resident, you waive your rights under any statute, regulation, or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Further, in consideration of the services provided by Mender, you hereby release Mender from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities or other harms resulting from or relating to telephone calls or text messages, including without limitation any claims, causes of action, or lawsuits based on any alleged violations of the law (including, without limitation, the Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, or any similar state and local acts or statutes, and any federal or state tort or consumer protection laws).
Mender and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
29. Background Checks
You will promptly notify Mender in writing if you have any potentially relevant criminal convictions (other than minor fixed penalty parking or speeding offenses) that arise during your use of the Mender Platform, and disclose the details of the conviction. Mender’s address for such notice is Attention: Background Verification call 3964 Delta St, San Diego CA 92113.
30. Dispute Resolution - Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND MENDER CAN BRING CLAIMS COVERED BY THIS ARBITRATION AGREEMENT. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND MENDER TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND MENDER MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL DISPUTES OR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act (“FAA”) and survives the termination of this Agreement and your relationship with Mender.
To the fullest extent permitted by applicable law, you and Mender agree to arbitrate any and all disputes and claims (“collectively, “Claim” or “Claims”) relating to, arising from or regarding your use of the Mender Platform, your relationship with Mender, Services, or this Agreement (including previous versions), including Claims by Mender, Claims against Mender and Claims against Mender’s Affiliates (including its parent company).
To the fullest extent permitted by applicable law, this includes, but is not limited to, claims related to payments, any city, county, state or federal wage and hour law, compensation, meal or rest breaks, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, personal injury, property damage or loss, emotional distress, any promotions or offers made by Mender; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; claims arising under the Fair Labor Standards Act, Civil Rights Act, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Mender and covered by the Employee Retirement Income Security Act or funded by insurance), and state or local statutes, if any, addressing the same or similar subject matters; and all other federal, state or local statutory and common law claims.
If there is a dispute about the arbitrability of any claim (including about the formation, scope, applicability, interpretation, validity, and enforceability of this Arbitration Agreement), you and Mender agree that this threshold dispute shall be resolved by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND MENDER ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL DISPUTES AND CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES THAT, BY THE TERMS OF THIS ARBITRATION AGREEMENT, ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(b) Prohibition of Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and Mender agree that any arbitration will be limited to the Claim between Mender (and/or, if applicable, its Affiliates) and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND MENDER ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and Mender 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. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to California Private Attorney General Act Claims, which are addressed separately below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity 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: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, to the fullest extent allowed by law: (1) you and Mender agree not to bring a representative action on behalf of others under the California Private Attorneys General Act (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Mender agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”).
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules and Logistics Governing Arbitration
In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party. The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, 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 or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules. You and Mender agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within 30 days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, the parties will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
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) subject to the following modifications:
(i) If Mender initiates arbitration under this Arbitration Agreement, Mender will pay all AAA filing and arbitration fees.
(ii) If a Client or Provider files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD $10,000, Mender will pay all AAA filing and arbitration 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)).
(iii) If a Client or Provider files a Claim in accordance with this Arbitration Agreement and the associated claim for damages exceeds USD $10,000, Mender shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses, and the Client or Provider shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which the Service was performed, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), however, then the allocation of fees will be governed by the applicable AAA Rules.
(iv) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(v) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Mender agree otherwise, any arbitration hearings with a Provider will take place in the county of the Provider’s billing address, and any arbitration hearings with a Client will take place in the county in which the Client received Service services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(e) Exceptions to Arbitration
The Arbitration Agreement shall not require arbitration of the following types of claims:
Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
Applications for provisional remedies, preliminary injunctions, and temporary restraining orders relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
Representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 30(c) is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; and
Claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or a similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in subsections (b) and (c), in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(g) Opt Out of Arbitration Agreement
For Providers, you may opt out of the requirement to arbitrate if you have not previously agreed to an arbitration provision in Mender’s Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this version of the arbitration agreement in the manner specified below, but opting out of this arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with Mender.
Except as specified in this arbitration agreement, if you are a Provider, you may opt out of the Arbitration Agreement by notifying Mender in writing within 30 days of your agreement to these Terms of Service. To opt out, you must send a signed written notification to 3964 Delta St, San Diego CA 92113, Attention: Legal, 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 wish to opt out of the Arbitration Agreement.
(h) Provider Claims in Pending Class Action
If you are a member of a putative class in a wage and hour class action lawsuit against Mender that is pending as of the effective date of these Terms of Service (a “Pending Class Action”), then this Arbitration Agreement shall not apply to your claims in that particular class action. Instead, your claims in that Pending Class Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
31. Governing Law
Except as expressly provided otherwise, this Agreement and your use of the Mender Platform will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create any substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND MENDER CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE MENDER PLATFORM.
32. Acknowledgement and Consent