Terms of Service
Thank you for downloading the Tispr mobile device application (the “App”) and/or using the Tispr website at https://tispr.com (the “Site”) and using BuddyHOPP, Inc.’s (“Company” or “we” or “our” or “us”) corresponding service that allows talented, independent and skilled people to connect with potential customers (such service collectively with the App and Site, the “Service”). These Terms of Service (“Agreement”) governs your browsing, viewing and other use of the Service, including transactions you agree to enter into with other users.
Please read this Agreement carefully, as it (among other things) provides: (a) in Section 17 that you and the Company will arbitrate certain claims instead of going to court and that you will not bring class action claims against the Company; (b) in Section 8 that certain terms and conditions apply with respect to recurring subscription charges for certain paid account types. Please only create a Service account or otherwise use the Service if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at https://tispr.com/terms. Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not create a Service account or otherwise use the Service.
If you are viewing this on your mobile device, you can also view this Agreement via a web browser on your computer at https://tispr.com/terms.
Note for Children. Use of the Service by anyone under the age of 13 is prohibited. By using the Service, you represent and warrant that are you at least 13 years of age.
The Service allows for users to upload content that may be viewed by other users. As further described in Section 9.4, inappropriate content, including without limitation content that is obscene, pornographic or defamatory, is not allowed and is subject to removal. If you see any prohibited content within the Service, please use the flagging feature to notify the Company. Users who upload prohibited content may have their accounts terminated.
1. How it Works. The Service allows users to post requests for services to be performed (a “Request”) as well as offers to perform services (each an “Offer”). A user posting a request is referred to in this Agreement as a “Requestor,” while a user posting an Offer is referred to in this Agreement as a “Service Provider.” A user can act as both a Requestor and a Service Provider. When a Request is posted, the Service will automatically search for matching Offers. Each Service Provider with an Offer that is determined to be a possible match will then be able to view the Request and the profile of the Requestor, and the Requestor will be able to view the profile of each such Service Provider. The Requestor can then communicate with each such Service Provider regarding the details of a potential transaction between them. When the Requestor and a Service Provider agree on the terms of a deal, the other matching Service Providers are informed. Note that use of the Service is open to the general public, and the Company does not screen in any manner any Service users.
2.1 You acknowledge that all transactions you enter into in connection with the Service are between you and the other Service user acting as a Requestor or Service Provider (as applicable) and the Company is not a party to such transactions. The Company’s sole involvement in user-to-user transactions is to make available a marketplace for Service Providers to list and for Requestors to request services. Any agreement to a proposal made within the Service constitutes a contract directly between the applicable Requestor and Service Providers for the provision of the stated service(s) at the stated price and subject to such other terms as may be agreed to between the Requestor and Service Provider within the Service as part of the agreed-upon proposal (each such contract, a “Project Contract”). The terms set forth in Schedule A shall be deemed to be incorporated into each Project Contract. In the case of conflict between terms set forth in Schedule A and the terms of a Project Contract, the terms set forth in Schedule A shall control except to the extent the terms of the Project Contract expressly override the terms set forth in Schedule A.
2.2 You are solely responsible for investigating the qualifications, experience, skills and credentials of any Service Provider with whom you may communicate with through the Service. You acknowledge that the Company: (i) does not inspect the performance of any services, (ii) does not guarantee that services will be performed or meet your needs, (iii) does not guarantee that services will conform with any provided descriptions or be similar in appearance to any provided photographs, (iv) does not investigate or screen Service Providers in any way, including with respect to their qualifications, experience, skills or credentials and (v) makes no warranties regarding the existence, safety, quality, adequacy, merchantability or fitness for a particular purpose of any services, that a Service Provider has the right to perform any services or that a Service Provider will consummate any transaction. You further acknowledge that the Company cannot and does not guarantee a Requestor will pay amounts owed for a transaction.
2.3 You are solely responsible for determining your legal obligations in relation to any services you may offer or purchase or any Project Contract you may enter into, including as may relate to taxes, insurance or licensing and credentialing requirements. The Company does not provide legal advice.
2.4 While the Company does not control the acts or omissions of Service users, the Company does desire for Service users to have a good experience using the Service and interacting with other users. As such, when you use the Service in a Service Provider capacity, you agree to: (i) accurately describe your skills, qualifications, credentials and experience and not make any false or misleading statements relating to any of the foregoing; and (ii) use your reasonable best efforts to timely complete all of your obligations under the Project Contract and perform services in a professional and workmanlike manner. In addition, when you use the Service in a Requestor capacity, you agree to promptly make payment to the Service Provider in accordance with the payment schedule agreed upon in the Project Contract. All users must abide by the community guidelines promulgated by the Company and available at https://tispr.com/guidelines as well as within the Service itself. Without limiting the Company’s other rights to terminate this Agreement or your use of the Service, you acknowledge that the Company may terminate your use of the Service and this Agreement in the event that the Company determines (in its sole discretion) that you have breached any portion of this Section 2.4.
3. Representations and Warranties.You represent, warrant and covenant that, in connection with this Agreement or the Service, you will not and will not attempt to: (i) violate any laws, third party rights or our community guidelines and other policies; (ii) offer for sale or rent, sell or rent, purchase or otherwise transfer, deal in or dispose of illegal products or services or products or services that encourage illegal activities, controlled substances, offensive materials, stocks or other securities, pharmaceuticals, medical devices, firearms, weapons, explosives, hazardous materials, any item that has been subject to a recall or that you believe may be unsafe when used in an ordinary manner, alcohol, tobacco products, animals, plants or seeds; (iii) re-join or attempt to use the Service if the Company has banned or suspended you; (iv) defraud the Company or another user; or (v) use another user’s account or allow another person to use your user account. Any illegal activities undertaken in connection with the Service may be referred to the authorities.
4. License to Use the App.If you have downloaded the App, then, subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to use the App on a compatible mobile device for your personal use, in each case in the manner enabled by the Company. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service.
5. Ownership; Proprietary Rights.As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm or programs underlying the Company Materials. The Company reserves the right to modify or discontinue the Service or any version(s) thereof at any time in its sole discretion, with or without notice.
6. Third Party Sites.The Service may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third party sites and services, products or services made available through them, or your use of or interaction with them.
7. Mobile Services; SMS.Use of the App requires usage of data and messaging services provided by your wireless service carrier. In particular, the App may use SMS messaging to provide you information relating to your use of the App. For example, SMS may be used to notify you that a Requestor has made a Request that may be a match for services you have offered within the App. You hereby consent to receiving such messages. You acknowledge and agree that you are solely responsible for data usage fees, messaging fees and any other fees that your wireless service carrier may charge in connection with your use of the App.
8.2 Fees for Service Account. By signing up for any paid Service account and providing your payment information, you agree to pay us (and authorize our Payment Processor to charge you) the recurring and/or nonrecurring fees as displayed to you at the time you create your account and as may be modified from time to time as described in this Agreement, as well as any other fees you expressly choose to incur in connection with your use of the Service. Unless otherwise specified upon enrollment, for subscription products or services, your payment method will be authorized for up to a month for the applicable Service account type and on a monthly basis thereafter until you cancel the subscription. You acknowledge and agree that the payment method provided by you will be automatically charged the fees you incur in connection with your use of the Service, and represent and warrant that you have all necessary rights relating to such payment instrument to authorize Company to make such charges. Your use of the Service may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. The fees applicable to your account may be subject to modification from time to time pursuant to notice (which may be given via e-mail) provided by us at least thirty (30) days in advance of the payment date for which the modification would be effective. You may at any time cancel your account as set forth below if you do not agree to any modified fees. All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by Company from time to time, as indicated at the time of payment) and are non-refundable.
8.3 Cancellation of Service Account. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING US AT firstname.lastname@example.org OR BY DOWNGRADING YOUR ACCOUNT IN THE SETTINGS SECTION ON THE WEBSITE. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY STILL USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION MONTH. TO NOT BE CHARGED FOR YOUR SUBSCRIPTION FOR THE FOLLOWING SUBSCRIPTION MONTH, YOU MUST CANCEL YOUR SUBSCRIPTION AT LEAST THIRTY (30) DAYS PRIOR TO THAT MONTH, OR YOU WILL OTHERWISE BE CHARGED FOR THAT MONTH’S SUBSCRIPTION. ALL CANCELLATION REQUESTS RECEIVED LESS THAN THIRTY (30) DAYS BEFORE THE FOLLOWING SUBSCRIPTION MONTH WILL APPLY TO THE FOLLOWING CYCLE.
8.4 Payments for Project Contracts.
8.4.2 How Payments Work. Upon acceptance of a Project Contract by Service Provider and Requestor, Requestor shall initiate all payments with respect to such Project Contract through the Service (including any service fees as outlined in Section 8.5 below). Stripe will hold the portion of the payments owed to Service Provider in escrow pending completion of the services and resolution of any disputes concerning the Project Contract, provided that amounts cannot be held in escrow for more than ninety (90) days. As such, the Company does not recommend entering into Project Contract for the performance of services that will take longer than ninety days to complete or which are reasonably likely to be the subject of a payment dispute that may take longer than ninety days from entry into the Project Contract to be resolved. Company may, in its sole discretion (but without obligation), assist the parties in resolution of a dispute between Requestor and Service Provider with respect to any payment upon receiving notice thereof. Upon the earlier of (i) Requestor’s confirmation that payment should be released and (ii) ninety days after payment has been received by Stripe, the payment shall be automatically released to Service Provider (less any service fees as outlined in Section 8.5 below). Please note that if Service Provider does not provide accurate, complete and current instructions to Stripe or the Company on where to send the funds due to Service Provider, Stripe or the Company may be required by applicable law to deem the funds abandoned by the Service Provider and may be required to deliver such funds to various government agencies.
8.4.3 Information. Requestors and Service Providers agree to provide all information requested by Company and/or Stripe in connection with enabling payment processing hereunder, verifying their identities, satisfying IRS reporting obligations and complying with any legal or compliance requirements. Requestors and Service Providers shall promptly notify Company and/or Stripe of any change or update to any information previously provided to Company and/or Stripe (as applicable). Requestors and Service Providers acknowledge that Company may provide their transaction activity and other information relating to payments made on the Service to Stripe. In addition, from time to time, Stripe may have an obligation to provide certain notices or forms, such as tax invoices, to Requestors and Service Providers. Requestors and Service Providers hereby agree that Company is entitled to receive such notices and forms on their behalf, without Stripe being obliged to directly provide the notices and forms to them. Upon receipt of any such form, Company shall promptly make such notices and forms available to the applicable Requestor or Service Provider’s account in a manner consistent with applicable law.
8.4.4 Modifications. Company may from time to time change the Payment Processor upon notice to you. In such event, you acknowledge that, as a condition of your continued use of the Service, you shall be required to: (i) agree to different terms and conditions applicable to such Payment Processor which may be materially different than the terms and conditions applicable to the then-current Payment Processor, (ii) agree to a modified version of this Agreement and/or (iii) provide all information and take such other actions as are required by the Payment Processor in connection with its payment processing service. In the event you do not wish to comply with any of the foregoing requirements, your sole remedy shall be to cease using the Service.
8.4.5 Liability. Service Providers and Requestors acknowledge that by entering into this Agreement, creating a Service account and/or engaging in payments through the Service, they are also entering into separate agreements directly with Stripe, that Company is not a party to such separate agreements and that Company is not an affiliate of Stripe. Service Providers and Requestors acknowledge and agree that Company does not control Stripe or its performance of payment processing services, and that Company shall have no liability of any kind for any act or omission (including negligence) of Stripe or any claim, demand, suit, damage, judgment, liability, loss, expense or cost incurred by such Service Providers or Requestors in relation to the performance or non-performance of payment processing services by Stripe, other than to the extent to which any of the foregoing may arise from the gross negligence or willful misconduct of Company.
8.4.6 Data. Company shall have the right to retain all data and information collected through Requestors and Service Providers use of Stripe’s payment service and: (i) use such data and information for its internal business purposes, such as analyzing usage of the Services and informing the development of its products and services; and (ii) disclose such data and information in aggregate form in a manner that does not identify Requestors or Service Providers. In addition, Company may disclose such data and information to the extent required by law or legal process.
8.5 Service Fees. Company may charge fees to Requestors and Service Providers in consideration for the use of the Service in connection with any Project Contracts. We may charge Requestors a fee upon receipt of the invoice by Requestor for a Project Contract from Service Provider. We may also charge Service Providers a fee upon release of payments made by Requestor to Service Provider in connection with a Project Contract. Requestors and Service Providers will see these fees prior to execution of a Project Contract.
9.1 The Service may allow you and other users to upload, post and share Work Product (as defined in Schedule A), Background Technology (as defined in Schedule A) and other text, images, audio and video, including in a manner such that it may be viewed by other end users of the Service (“Media”). You acknowledge that all posted Media is stored on and made available through the Service by the Company’s servers and not on your device.
9.2 You understand that all Media is provided to you through the Service only on an “as-available” basis and the Company does not guarantee that the availability of Media will be uninterrupted or bug free. You agree you are responsible for all of your Media and all activities that occur under your user account.
9.3 You hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, display, transmit and prepare derivative works of your Media, and to additionally distribute and publicly perform Media in connection with the Service and the Company’s (and its successor’s) business, in any media formats and through any media channels. The Company agrees not to display your Media in any advertising materials without your consent, other than the display of Media on web sites owned or controlled by the Company (such as http://www.tispr.com). You also hereby grant to each user of the Service a non-exclusive license to access, view and/or download your Media as permitted by the functionality of the Service and this Agreement. The aforementioned licenses will terminate with respect to any particular item of your Media when you or the Company remove it from the Service, provided that (i) any sublicenses may be perpetual and irrevocable and (ii) you acknowledge that such licenses survive to the extent necessary for a copy of your Media to be retained by the Company.
(a) For purposes of clarity, anything that is not uploaded or posted to the Service is not “Media” and is not subject to the license granted in this Section 9.3. For example, if you create a piece of artwork for a Requestor when acting in a Service Provider capacity and you do not upload such artwork to the Service, it is not Media and the Company does not receive any license to it.
9.4 In connection with your Media, you further agree that you will not: (i) use material that is subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) use material that is unlawful, defamatory, libelous, threatening, pornographic, obscene, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) post advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company may investigate an allegation that any Media does not conform this to Agreement and may determine in good faith and in its sole discretion whether to remove such Media, which it reserves the right to do at any time. If you are a copyright holder and believe in good faith that your content has been made available through the Service without your authorization, you may follow the process outlined at https://tispr.com/copyright to notify the Company’s designated agent (pursuant to 17 U.S.C. § 512(c)) and request that the Company remove such content.
9.5 You hereby acknowledge that you may be exposed to Media from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that the Company does not control the Media posted by Service users and does not have any obligation to monitor such content for any purpose.
10. Prohibited Uses.As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement. You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of it. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree not to scrape or otherwise use automated means to access or gather information from the Service, and agree not to bypass any robot exclusion measures we may put into place. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).
11. Additional Terms.When you use certain features or materials on the Service, or participate in a particular promotion, event or contest through the Service, such use or participation may be subject to additional terms and conditions posted on the Service. Such additional terms and conditions are hereby incorporated within this Agreement, and you agree to comply with such additional terms and conditions with respect to such use or participation.
12. Termination.You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account by contacting us at email@example.com. Note that deleting the App from your device will not terminate your Service account. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service, at any time and without notice. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that the Company shall not be liable to you or any third-party for any such termination. Sections 2, 3, 5, 6, 7, 8.4.5, 8.4.6 and 9 through 18 will survive any termination of this Agreement.
13. Apple.You hereby acknowledge and agree that Apple, Inc.: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) is a third party beneficiary of this Agreement with the right to enforce its terms against you directly.
14. Disclaimers; No Warranties.THE SERVICE AND ANY MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
15. Indemnification.You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Service, entry into or performance of any Project Agreement, breach of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
16. Limitation of Liability and Damages.UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE EXCEED ONE HUNDRED U.S. DOLLARS.
17.1 Agreement to Arbitrate. This Section 17 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
17.2 Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
17.3 Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures (the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 16. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.
17.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
17.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
17.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees“) will be governed by the AAA’s Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
17.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
17.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 17.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 17.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
18. Miscellaneous.The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after the Company provides notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 17 shall be filed only in the state or federal courts in California (or a small claims court of competent jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
19. More Information; Complaints.The services hereunder are offered by BuddyHOPP, Inc., located at 1635 16thStreet, Santa Monica, CA 90404, firstname.lastname@example.org, telephone: +1 310 310 2218. If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.
Project Contract Terms
1 Requestor agrees to timely provide the Service Provider with all information and materials specified in the Project Contract as being provided by Requestor (the “Requestor Material”). As between the parties, Requestor shall be the sole owner of the Requestor Material. Requestor hereby grants a non-exclusive, non-transferable, royalty-free, limited license to Service Provider to use and reproduce the Requestor Material during the term of the Project Contract solely for purposes of performing Service Provider’s obligations under the Project Contract. Service Provider shall not use any Requestor Material or any other material or information provided by Requestor to Service Provider in a manner other than for purposes of performing such obligations, as may be otherwise expressly provided for in the Project Contract or as is authorized in writing by Requestor. Service Provider shall not disclose any Requestor Material or any other material or information provided by Requestor to Service Provider to any third party without Requestor’s express written consent or as otherwise permitted under the Project Contract or required by applicable law. Upon completion or termination of the Project Contract, or upon Requestor’s written request, Service Provider will immediately return all Requestor Materials to Requestor and further agrees to destroy all copies of Requestor Materials contained in or on Service Provider’s premises, systems or any other equipment or location otherwise under Service Provider’s control.
2 Prior to release of payment by Requestor to Service Provider as described in the Tispr Terms of Service, any and all work product or other materials (including without limitation any samples or a proposed or interim designs or prototypes), provided by Service Provider to Requestor other than Background Technology (as defined below) pursuant to the Project Contract (the “Work Product”), Background Technology and all intellectual property rights in each of the foregoing, shall be owned solely by Service Provider and Service Provider hereby grants a non-exclusive, worldwide, royalty-free limited license to Requestor to use the Work Product solely for purposes of providing feedback to Service Provider.
3 After release of payment by Requestor to Service Provider as described in the Tispr Terms of Service, Service Provider agrees to assign, and hereby does assign, to Requestor all intellectual property rights in and to the final Work Product provided to Requestor for which payments have already been released. Service Provider agrees, at no additional cost to Requestor, to provide all reasonable assistance and information, and execute all reasonable assignments, declaration and other instruments requested by Requestor as may be necessary or desirable for Requestor to perfect, register and/or defend Requestor’s rights in and to the Work Product and the intellectual property rights therein. Service Provider will assist Requestor in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Project Contract, to obtain and enforce intellectual property rights relating to Work Product in all countries. In the event Requestor is unable, after reasonable effort, to secure Service Provider’s signature on any document needed in connection with the foregoing, Service Provider hereby designates and appoints Requestor and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this section with the same legal force and effect as if executed by Service Provider.
4 Service Provider will disclose to Requestor any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, techniques and all intellectual property rights in any of the foregoing developed by Service Provider or a third party other than in the course of performing the services set forth in the Project Contract that Service Provider proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend (“Background Technology”). If Service Provider does not disclose any Background Technology, Service Provider warrants that it will not incorporate any Background Technology into Work Product provided pursuant to a Project Contract. Service Provider will separately provide, with each delivery of Work Product to Requestor, a third-party bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Service Provider and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Project Contract, Service Provider agrees that it will not incorporate into Work Product or otherwise deliver to Requestor any software code for which the use or distribution of the code will create (or purport to create) obligations for Requestor to grant any rights or immunities under Requestor’s intellectual property rights to a third party.
5 Prior to release of payment, Service Provider hereby grants a non-exclusive, worldwide, royalty-free limited license to Requestor to use the Background Technology solely for purposes of providing feedback to Service Provider.
6 After release of payment by Requestor to Service Provider as described in the Tispr Terms of Service, Service Provider hereby grants a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license, with rights to sublicense through multiple levels of sublicensees, to make, have made, use, sell, offer to sell, import, reproduce, make derivative works of, distribute, publicly perform, display and otherwise exploit the Background Technology incorporated or used in Work Product delivered for that payment.
7 Requestor shall not use any Work Product (prior to release of payment) or any other material or information provided by Service Provider to Requestor in a manner other than that permitted under a Project Contract. Requestor shall not disclose any Work Product (prior to release of payment) or any other material or information provided by Service Provider to Requestor to any third party without Service Provider’s express consent or as otherwise permitted under the Project Contract or applicable law.