Edittress Terms of Service
Last updated: August 30, 2017
These Terms of Service constitute a legally binding agreement (“Agreement”) between you and M. Wu. (“Company” or “Edittress”) governing your use of the Edittress Platform (defined below), the Company’s website (edittress.com or the “Site”) or mobile applications. The platform services provided by Company, the Site and mobile applications together are hereinafter collectively referred to as the “Edittress Platform.”
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 20) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE EDITTRESS PLATFORM.
A few highlights of these Terms of Service include:
- Your agreement that the Edittress Platform is provided “as is” and without warranty (Section 17).
- Your agreement that Company has no liability regarding the Edittress Platform (Section 18).
- Your acknowledgment and agreement that Company does not supervise, direct or control a consultant’s work or the services in any manner (Section 1).
- Your agreement that the Company has no liability regarding the performance of the consultation.
- Your consent to release Company from liability based on claims between Users (Section 2) and generally (Section 18).
- Your agreement to indemnify Company from claims due to your use or inability to use the Edittress Platform or content submitted from your account to the Edittress Platform (Section 19).
- Your consent to submit any claims against Company to binding arbitration on an individual basis only (Section 20).
- Edittress Platform Connects Consultants and Clients
The Edittress Platform is a web-based communications platform which enables the connection between Clients and Consultants. “Clients” are individuals and/or businesses seeking to obtain editing services (“consultations”) from Consultants and are therefore clients of Consultants, and “Consultants” are individuals and/or businesses seeking to perform consultation services for Clients. Clients and Consultants together are hereinafter referred to as “Users.” If you agree on the terms of a consultation 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.
CONSULTANTS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF COMPANY. COMPANY DOES NOT PERFORM CONSULTATIONS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM CONSULTATIONS. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A CONSULTANT’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE CONSULTATIONS IN ANY MANNER.
The Edittress Platform only enables connections between Users for the fulfillment of Consultations. Company is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Consultations, Consultants, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Consultations requested and services provided by Users identified through the Edittress Platform whether in public, private, or offline interactions.
- User Vetting and User Representation and Warranties
In the Company’s sole discretion, Users may be subject to an extensive vetting process before they can register for and during their use of the Edittress Platform, including but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. Users hereby give consent to Company to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although Company may perform background checks of Users, as outlined above, Company is not required to do so and cannot confirm that each User is who they claim to be and therefore, Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Edittress Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE EDITTRESS PLATFORM AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE EDITTRESS PLATFORM.
User Representations and Warranties
Contract between Clients and Consultants
You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a Consultation with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the Edittress Platform, and any other contractual terms accepted by both the Consultant and their Client to the extent such terms do not conflict with the terms in this Agreement including this Section 3 and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Consultant.
Where approved in advance by the Client, the Consultant is not obligated to personally perform the Services. Before any Consultation services are performed by any assistants, helpers, subcontractors or other personnel (collectively “Assistants”) engaged by the Consultant, the Consultant shall require any such individuals to become registered Consultants on the Edittress Platform pursuant to Company policies as described on the Edittress Platform. A Consultant’s failure to bring an Assistant who is not a registered Consultant could lead to removal from the platform. The Consultant assumes full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable state and federal income tax withholdings as to the Consultant and all persons engaged by the Consultant in the performance of the Consultation services.
The Client shall pay their Consultant directly for completed Consultation services through the PSP (as defined below) as indicated on the Edittress Platform at the rates agreed to by the parties in the Service Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a Consultation. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding between the parties.
- Billing and Payment
Users of the Edittress Platform contract for Consultations directly with other Users. Company will not be a party to any contracts for Consultations or services. Payment for Consultation services through the Edittress Platform is made directly from the Client to the Consultant and not by Company. If a Client fails to pay a Consultant for services provided through the platform, Company may, in its sole discretion, pay the Consultant for such services but Company is not obligated to do so. Notwithstanding the foregoing, Company is not obligated to pay Consultant for Client’s failure to pay for services.
Users of the Edittress Platform will be required to provide their credit card and/or bank account details to Company and the Payment Service Provider retained by Company (the “PSP”). Clients will be responsible for paying the invoice for each Consultation (the “Invoice”), which will include (i) the pricing terms of the Consultation agreed with and provided by a Consultant (“Consultation Payment”), (ii) any out of pocket expenses agreed with and submitted by a Consultant in connection with the Consultation, if applicable, (iii) any tip or gratuity, if applicable, (iv) the service fee Company assesses for the Edittress Platform, variable based on the Consultation Payment amount, and (v) the platform fee (sometimes referred to as Edittress Service Fee), which is used to offset Company’s cost of providing Users with customer support, and other various business objectives, and (vi) cancellation fees, if applicable. Consultants will be responsible for paying (i) registration fees (applicable to Consultant registrants), (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments.
To help prevent fraud and safeguard User information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a very temporary charge is placed on account associated with the User and then refunded within 1-3 business days. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary between $0.01 US to $5000.00 US depending on the estimated value of the consultation and reimbursements.
When Client receives confirmation through the Edittress Platform or via email that a consultation reservation has been completed, Client automatically authorizes Company to provide Client’s payment details to the PSP for processing of Consultation Payment, out of pocket expenses owed to Consultant, and the service fee fees owed to Company for the use of the Edittress Platform. You may be charged a cancellation fee through the PSP if you book a Consultation, but cancel it before it is completed, as set forth in the Consultation pricing terms or if you agree to perform a Consultation but fail to complete it, as may be set forth in the Consultation pricing terms.
Company reserves the right, in its sole discretion (but not the obligation), upon request from Client or Consultant or upon notice of any potential fraud, unauthorized charges or other misuse of the Edittress Platform, to (i) place on hold any Consultation Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
Consultation Payment and fees must be paid through the PSP as indicated on the Edittress Platform. Clients may pay using a Gift Card (see Section 5).
Users of the Edittress Platform will be liable for any taxes (including VAT, if applicable) required to be paid on the Consultation services provided under the Agreement (other than taxes on Company’s income).
- Gift Cards and Vouchers
Company gift cards (“Gift Cards”) and vouchers or promotional codes (“Vouchers”) may be available and can be used to pay Consultation Payments and Company fees in part or in full, but may not be used to pay for reimbursement of out of pocket expenses and Company fees associated with a Consultation provided through the Edittress Platform. Vouchers are an offer (subject to the terms of the voucher) by Company to reduce the amount a Client has to pay in relation to a Consultation Payment and/or our service fee and /or platform fee (sometimes referred to as an Edittress Service Fee). Vouchers will not affect the amount of the Consultation Payment a Consultant ultimately receives. You agree that you will only use one Voucher per person, and will comply with Voucher terms, including but not limiting Voucher use to first-time Users (which means that you will not use such a Voucher with a new account you create if you already have an account on the Edittress Platform). Company reserves the right to withhold or deduct credits or other features or benefits obtained through the use of a Voucher by you or any other user in the event that Company determines or believes that the use or redemption of a Voucher was in error, fraudulent, illegal, or in violation of the applicable Voucher terms or these Terms. Client must enter each Gift Card into the reservation system before Client can use that value on the Edittress Platform.
Gift Cards are not replaceable if lost or stolen and expire after five years, but in certain U.S. states, after a period of time, Company may remit the cash associated with unused Gift Card balances to certain states pursuant to their abandoned property laws. Once Company has remitted such cash to a state, if someone tries to redeem the Gift Card, it may no longer be redeemed and Company may direct them to that state’s government instead. Gift Cards have no cash value and are not redeemable for cash except in the following thirteen U.S. states where it is required by law to the extent noted below: California, Colorado, Connecticut, Maine, Massachusetts, Montana, New Jersey, Oregon, Rhode Island, Texas, Vermont, Washington, and West Virginia. If you are a resident of one of these U.S. states, and the balance on your Gift Card is less than the respective dollar amount below, you may redeem it for cash:
- California < USD 10
- Colorado < USD 5
- Connecticut < USD 3
- Maine < USD 5
- Massachusetts < USD 5
- Montana < USD 5
- New Jersey < USD 5
- Oregon < USD 5
- Rhode Island < USD 1
- Texas < USD 2.50
- Vermont < USD 1
- Washington < USD 5
- West Virginia < USD 1
Simply email your address and a copy of the electronic Gift Card to firstname.lastname@example.org with the Subject: Gift Cards.
Company will verify your address, confirm that your Gift Card balance qualifies you for redemption, and send you a check for the exact amount in the envelope provided. If your Gift Card balance is equal to or greater than the cap, or Company can’t verify your residency, Company will return your Gift Card in the envelope provided. Company will be unable to redeem or return your Gift Card without a self-addressed envelope and is not responsible for mail that doesn’t arrive at the address provided and cannot guarantee delivery in any way after submittal to the US Postal Service.
A Gift Card cannot be combined with any other Gift Cards, gift certificates or other coupons. A Gift Card cannot be used as a credit or debit card. Company reserves the right to limit quantities of Gift Cards purchased by any person or entity and to cancel a Gift Card if it believes that the Gift Card was obtained through fraudulent or unauthorized means.
No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Card. You cannot “reload” (i.e., you cannot add value/balance to your Gift Card at this time). If a Gift Card holder’s purchase exceeds the amount of that Gift Card’s balance, the Gift Card holder must pay the difference by another means. Unused Gift Card balances are not transferable. Company reserves the right to correct the balance of a Gift Card if Company believes that a billing error has occurred. Company disclaims all liability for any such billing errors. Gift Cards and their use are subject to these Terms of Service use of a Gift Card constitutes acceptance hereof.
The Edittress Platform is only a venue for connecting Users. Because Company is not involved in the actual contact between Users or in the completion of the Consultation, in the event that you have a dispute with one or more Users, you release Company and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS EDITTRESS PLATFORM.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- Public Areas; Acceptable Use
The Edittress Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, 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 material that are relevant and proper to the applicable forum. For the safety and integrity of the Edittress Platform, you may not share your personal contact information with other Users.
Without limitation, while using the Edittress Platform, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Company staff, or use information learned from the Edittress Platform or during the performance of Consultations to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of any other User or Company staff outside of the Edittress Platform.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Edittress Platform.
- Use the Edittress Platform for any purpose, including, but not limited to posting or completing a Consultation, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose through the Edittress Platform which are not relevant to the Consultation services offered through the Edittress Platform.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
- Post the same Consultation repeatedly (“Spamming”). Spamming is strictly prohibited.
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Edittress Platform.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Company, without the prior written consent of Company.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Edittress Platform in any manner.
- Hack or interfere with the Edittress Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the Edittress Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Company.
- Upload content to the Edittress 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 under the age of 18 in an abusive, violent or sexual manner.
- Use the Edittress 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 Edittress Platform as set forth herein.
- Use the Edittress Platform to collect usernames and or/email addresses of Users by electronic or other means.
- Use the Edittress Platform or the Consultation services in violation of this Agreement.
- Use the Edittress Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
- Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the platform, including 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 identities.
- Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
- Termination and Suspension
Company may terminate, limit or suspend your right to use the Edittress Platform in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.
If Company terminates, limits, or suspends your right to use the Edittress Platform as a Client for a User Breach, you will not be entitled to any refund of unused balance in your account, and you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating, limiting, or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing arbitration, criminal, and injunctive redress in accordance with Section 20.
Even after your right to use the Edittress Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Edittress Platform at its sole discretion. Except for refundable fees you have advanced to Company (if any), Company is not liable to you for any modification or discontinuance of all or any portion of the Edittress Platform. Notwithstanding anything to the contrary in this Section 8, Company has the right to restrict anyone from completing registration as a Consultant if Company believes such person may threaten the safety and integrity of the Edittress Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Edittress Platform. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
- Account, Password, Security, and Mobile Phone Use, Texts and Calls
You must register with Company and create an account to make use of membership benefits from the Edittress Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Company for accessing the Edittress Platform. You are solely and fully responsible for all activities that occur under your password or account. Company 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 will contact Company immediately.
By providing your mobile phone number and using the Edittress Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the Edittress Platform, (b) facilitate the carrying out of consultations through the Edittress Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Consultations, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming consultations and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site and specifying you want to out-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing email@example.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
- Your Information and Likeness
“Your Information” is defined as any information and materials you provide to Company or other Users in connection with your registration for and use of the Edittress Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to Company that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The Edittress Platform hosts User Generated Content relating to reviews and ratings of specific Consultants (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake their own research to be satisfied that a specific Consultant is the right person for a Consultation. You agree that Company is not liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Company do so.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the Edittress Platform.
Each Consultant who provides to Company any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the Edittress Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- Use any videotape, film, record or photograph that such Consultant provides to Company or that Company takes of Consultant, and use, reproduce, modify, or creative derivatives of such Consultant 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 and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such Consultant in connection with the Edittress Platform.
- Reproduce in all media any recordings of such Consultant’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Edittress Platform.
- Use, and permit to be used, such Consultant’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Edittress Platform in any media.
- Use, and permit to be used, such Consultant’s name and identity in connection with the Edittress Platform.
Each Consultant hereby waives all rights and releases Company from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Consultant’s identity, likeness or voice in connection with the Edittress Platform.
Each Consultant acknowledges that Company shall not owe any financial or other remuneration for using the recordings provided hereunder by such Consultant, either for initial or subsequent transmission or playback, and further acknowledges that Company is not responsible for any expense or liability incurred as a result of such Consultant’s recordings or participation in any recordings, including any loss of such recording data.
- Links to Other Websites
The Edittress Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by Company of those sites or their content. They are provided as an information service, for reference and convenience only. Company does not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the Edittress Platform to such websites (including without limitation external websites that are framed by the Edittress Platform as well as any advertisements displayed in connection therewith) does not mean that Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the Edittress Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Edittress Platform; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the Edittress Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Edittress Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Edittress Platform. You will have the ability to disable the connection between your account on the Edittress Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Edittress Platform. At your request made via e-mail to firstname.lastname@example.org Company will deactivate the connection between the Edittress Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
- Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM CONSULTATIONS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM CONSULTATIONS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, control or monitor a Consultant’s work or Consultations performed in any manner. Company does not set a Consultant’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a particular Consultation. Company does not provide any supervision to Users.
The Edittress Platform is not an employment service and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Consultation services.
- Edittress Non-Disclosure Pledge
The Edittress Non-disclosure Pledge (the “Pledge”) is part of these Terms of Services and incorporated by reference. Consultants determine what industries they are qualified to consult in and scope the consultation directly with their Client. Edittress does not direct how a Consultant performs a consultation and does not monitor consultations or chat threads between Users. Clients are advised to confirm with their Consultant that their Consultant is qualified to perform the consultation prior to the consultation taking place. Accordingly, the Company is not liable for the acts or omissions of Users and the Edittress Non-disclosure Pledge in no way contradicts that premise. That said, Edittress wants Users to be satisfied about their experience using the Edittress Platform and the Non-disclosure Pledge is in place to encourage continued use of the Platform.
The Pledge is entered into by and between User and Consultant for the purpose of preventing the unauthorized disclosure of Confidential Information as defined below. The parties agree to enter into a confidential relationship with respect to the disclosure of certain proprietary and confidential information (“Confidential Information”) during a consultation.
For purposes of this Agreement, “Confidential Information” shall include all information or material that has or could have commercial value or other utility in the business in which User is engaged. If Confidential Information is in written form, the Disclosing Party shall label or stamp the materials with the word “Confidential” or some similar warning. If Confidential Information is transmitted orally, the Disclosing Party shall promptly provide a writing indicating that such oral communication constituted Confidential Information.
Consultant’s obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Consultant; (b) discovered or created by the Consultant before disclosure by User; (c) learned by the Consultant through legitimate means other than from the User or User’s representatives; or (d) is disclosed by Consultant with User’s prior written approval.
Consultant shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the User. Consultant shall carefully restrict access to Confidential Information to employees, contractors and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Pledge. Consultant shall not, without prior written approval of User, use for Consultant’s own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of User, any Confidential Information. Consultant shall return to User any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if User requests it in writing.
The nondisclosure provisions of this Pledge shall survive the termination of this Agreement and Consultant’s duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until User sends Consultant written notice releasing Consultant from this Pledge, whichever occurs first.
Nothing contained in this Pledge shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Pledge shall be interpreted so as best to effect the intent of the parties.
This Pledge expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Pledge may not be amended except at the sole discretion of the Company.
The failure to exercise any right provided in this Pledge shall not be a waiver of prior or subsequent rights.
- Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Edittress Platform is owned by Company, excluding User Generated Content that Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Edittress Platform without Company’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the Edittress 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.
- Copyright Complaints and Copyright Agent
Company 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 Edittress Platform infringe upon your copyright or other intellectual property right, please send the following information to 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 Edittress Platform where the material you claim is infringed is located. Include enough information to allow Company 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 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
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
- Confidential Information
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company 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, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
- Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE EDITTRESS PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE EDITTRESS PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE EDITTRESS PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE EDITTRESS PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE EDITTRESS PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE EDITTRESS PLATFORM WILL BE UNINTERRUPTED OR THAT THE EDITTRESS PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE EDITTRESS PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY CONSULTATION OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE EDITTRESS PLATFORM. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE EDITTRESS PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE EDITTRESS SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE CONSULTATION AND SELECTING THEIR CONSULTANT AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR CONSULTANT. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY CONSULTANT’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
- No Liability
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE EDITTRESS PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE EDITTRESS 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 COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION, OTHER THAN PURSUANT TO THE NON-DISCLOSURE PLEDGE.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE EDITTRESS PLATFORM OR THE CONSULTATION SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE EDITTRESS PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS 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 COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, successors and assigns, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with (i) your use or inability to use the Edittress Platform or Consultation Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law the rights of any User or third party (iv) any content submitted by you or using your account to the Edittress Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
- Dispute Resolution – Arbitration
(a) Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Company (each a “Claim” and collectively “Claims”), you and Company agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Company. Company’s email address for such notices is firstname.lastname@example.org. If necessary to preserve a Claim under any applicable statute of limitations, you or Company may initiate arbitration while engaging in the informal negotiations.
(b) Binding Arbitration.
YOU AND COMPANY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) 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, contained in Section 20, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Company. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the Edittress Platform, services, Consultations, your relationship with Company, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by Company, breach of any express or implied contract or breach of any express or implied contract or 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; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, 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 Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED 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 WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief.
You and Company agree that any arbitration will be limited to the Dispute between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Company 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. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against the Company which are addressed separately in Section 20 (d) below. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on a class, collective, or representative basis.
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: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated 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.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent allowed by law: (1) you and Company agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“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 the California PAGA, both you and Company agree that any such Dispute will be resolved in arbitration on an individual basis only (that is, 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 litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) 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, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Company 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 shall not be bound by rulings in prior arbitrations involving different Consultants or Clients, but is bound by rulings in prior arbitrations involving the same Consultant or Client to the extent required by applicable 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, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
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 Company initiates arbitration under this Arbitration Agreement, Company will pay all AAA filing and arbitration fees. If a Client or Consultant, however, files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD 1,000, Company will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); (ii) For Claims that (A) are based on an alleged employment relationship between Company and the Consultant; (B) arise out of, or relate to, the Company’s actual or threatened deactivation of a Consultant’s User account; (C) arise out of, or relate to the Company’s actual or threatened termination of a Consultant’s Agreement with the Company; or (D) arise out of, or relate to, monies earned or paid for Consultation services (as defined above, including the service feeor Trust and Support Fee), tips, bonuses or monies owed by Clients or Company to a Consultant, other than disputes relating to referral bonuses, other Company sponsored promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Consultant Claims”), Company 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 (to the extent not paid by Company pursuant to the fee provisions above). However, if you are the party initiating the Consultant Claim, you 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 you provide Services to Clients, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection 20(e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. (iii) Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, 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 Dispute(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). (iv) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Unless you and Company agree otherwise, any arbitration hearings between Company and a Consultant will take place in the county of your billing address, and any arbitration hearings between Company and a Client will take place in the county in which you received Consultation services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
- 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;
- A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section __ is deemed unenforceable by a court of competent jurisdiction;
- Claims that may not be subject to arbitration as a matter of law.
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 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. However you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. 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 Provision and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in Section 20(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
You may opt out of the Arbitration Agreement by notifying Company in writing within 30 days of the date you first registered for the Edittress Platform or 30 days from the date this Agreement was last updated. To opt out, you must send a written email notification to email@example.com Subject: 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 do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
- Governing Law
Except as provided in Section 20 or expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of New York, without regard to choice of law principles.
- Special Promotions
Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified or removed at any time by Company without advance notification and the liability of any of Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to Section 18 of these Terms of Service, including but not limited to Section 18 of these Terms of Service.
- No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
- General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned or transferred by you without our prior written approval. 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. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
- Changes to this Agreement and the Edittress Platform