INDIE.NINJATM TERMS OF SERVICE
Last updated June 1, 2017
- DESCRIPTION OF PLATFORM; ACCEPTANCE OF TERMS; MODIFICATION OF TERMS
Welcome to Indie.NinjaTM, a web-based communications platform owned and operated by Indie.Ninja, Inc. (“Company”), which enables Indies and Ninjas to connect in order to seek and perform music-related business services (“gigs”). “Indies” are individuals and/or businesses seeking to obtain gigs from Ninjas, and “Ninjas” are individuals and/or businesses seeking to perform gigs for Indies. Indies, Ninjas and any other non-registered user of the Platform (defined below) are each hereinafter referred to as a “User”, “you” or “your”.
Company may in the future offer one or more paid versions of the Platform, including by subscription (“Premium Service”). The Premium Service may offer additional content, features and/or functionality that are not available via the current version of the Platform.
- PLATFORM LICENSE; PLATFORM ACCESS, SUSPENSION AND TERMINATION
Company grants you a limited, non-exclusive, non-transferable, non-assignable, non-sublicenseable license to access and make use of the Platform solely as provided herein, subject to these Terms of Service, and not for redistribution of any kind (the “License”). This License does not include any resale of (i) the Platform, (ii) any Registration Data (defined below), (iii) any other content, materials, information, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, music, screenshots, videos, chats, posts, identifying marks, Site pages, software, and other original works of authorship and/or intellectual property uploaded to, or incorporated into, the Platform by Company (collectively, “Platform Content”), which Platform Content is and shall remain the sole and exclusive property of Company, or (iv) any content, materials, information, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, music, screenshots, videos, and other intellectual property that any other User submits or uploads onto the Platform (collectively, “User Content”), including, without limitation, in Public Areas (defined below), which User Content is and shall remain the sole and exclusive property of the applicable User (subject to the licenses granted to Company herein). The Platform, the Platform Content, and any User Content belonging to another User may not be used, modified, reproduced, duplicated, copied, published, distributed, downloaded, sold, resold, transformed, redesigned, reconfigured, retransmitted, or otherwise exploited by you for any purpose without express prior written consent of Company (or the applicable User with respect to such User’s User Content). Violation of this Section 2 may result in infringement of intellectual property and contractual rights of Company, other Users of the Platform, or other third parties, which is prohibited by law and could result in substantial civil and criminal penalties. Except as expressly set forth above, these Terms of Service do not grant to you any express, implied or other license or right in and to any intellectual property belonging to Company, any other User or any other third party. Commercial advertisements, affiliate links, and other forms of solicitation are not permitted and may be removed from the Platform without notice to you at any time. In certain instances, Company may agree to provide you with access to secure, password protected pages of the Platform. Such access is restricted to authorized Users only and any attempt by you to access these protected pages without authorization may subject you to criminal or civil liability. This License terminates automatically upon any unauthorized use of the Platform and Company will take appropriate investigative and legal action for any illegal or unauthorized use of the Platform.
Company reserves the right, in its sole discretion and without notice or liability to you, to suspend or terminate your use of, or access to, the Platform (either in whole or in part) at any time for any reason with any conditions, including, but not limited to, if Company believes in good faith that you have violated or acted inconsistently with these Terms of Service or any applicable law or that you have engaged in conduct that Company determines to be inappropriate or unacceptable. Company reserves the right, in its sole discretion, to terminate your access to the Platform if you file any claim against Company or any claim that involves the Platform. Company also reserves the right, at its sole discretion, to seek and obtain any other remedies available to it pursuant to any applicable laws and regulations or at equity as a result of your breach of these Terms of Service or any other act or omission by you that gives rise to a claim by Company. If Company terminates, limits, or suspends your right to use the Platform, without Company’s prior written consent, 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 the event your right to use the Platform terminated, limited, or suspended, these Terms of Service will remain in effect and enforceable against you.
You may terminate these Terms of Service at any time by ceasing all use of the Platform; provided, that all sections of these Terms of Service which by their nature should survive the expiration or termination shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of these Terms of Service.
Company may in the future update the Platform to change the material, Platform Content and/or features thereof at any time (an “Update”). Company shall not be liable to any User in any way as a result of any temporary suspension of the Platform arising from or in connection with an Update. Furthermore, Company is under no obligation to undergo an Update of the Platform to the extent any Platform Content, User Content and/or other features or material contained therein or related thereto is out of date. The terms of the License granted to you pursuant to this Section 2 shall apply in full to any Update.
Your access to the Platform may be interfered with by numerous factors outside of Company’s control including, but not limited to, telecommunications and/or wireless network service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized intervention, fraud, technical failures, and server, equipment or software defects. Company is not responsible and will have no liability for any failures of the internet or any data or telecommunications equipment, system or network used in connection with the Platform. In addition, perfect security does not exist on the Internet; Company cannot and does not guarantee that any Registration Data or other personally identifiable information submitted to the Platform will not become public under any circumstances.
- USER ACCOUNTS; USER VETTING; CONSENT TO USE ELECTRONIC RECORDS; CONSENT TO RECEIVE TEXT MESSAGES AND CALLS
In order to utilize the Platform, each User will need to register and create an Account. You agree to create only one (1) unique Account and that you shall be the sole authorized user of your Account. In addition, in order to maintain the integrity of the Platform, by registering your Account, you agree that your use of the Platform shall be for bona fide business purposes only. As part of the registration process, Users will be asked to submit certain information such as the User’s name, email, address, website, phone number, photograph, description of your business or the services you provide (or are seeking to provide), User profile name, etc., and to create an Account login password (collectively, “Registration Data”). You agree that all Registration Data you provide to Company will be true, accurate, current and complete. Company may from time to time modify or add to the Registration Data information fields required to create an Account, and you agree to promptly complete any such additional or modified information fields when requested by Company.
Company will have the right to use your Registration Data in connection with servicing and operating the Platform. You agree (i) to keep your Registration Data true, accurate, current and complete at all times (and will promptly update your Registration Data as necessary from time to time), (ii) to restrict access by any other person or entity to your password or other login information, (iii) to not knowingly use the name or email of any other person without authorization, (iv) to not use an email that is profane, offensive or otherwise inappropriate, (v) to not allow any third party to use your login information, Registration Data or Account, and (vi) to notify Company of any breach of security by promptly sending Company an e-mail to email@example.com. You agree that you will be liable for all activities that occur under your Account, even if such activities were not committed by you. Company is not responsible for any loss or damage as a result of someone else using your Account, Registration Data or password with or without your knowledge. You acknowledge and agree that certain Account information (such as your user profile name and/or picture) that you provide in connection with the registration of your Account will be publicly viewable by all Users of the Platform.
In the Company’s sole discretion, Users may be subject to an extensive vetting process before they can register for an Account or use (or continue to use) the Platform, including but not limited to a verification of identity, Registration Data and/or a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. Users hereby give express consent to Company to conduct background checks as often as required, or as Company may deem necessary, 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. Therefore, Company cannot and does not assume any responsibility or liability, and makes no representations or warranties, for the accuracy or reliability of the identity, Registration Data, or any background check information, of any User provided through the Platform. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. You acknowledge and agree that when you interact and communicate with other Users of the Platform you do so at your own risk.
In connection with your Account, you may be entitled to receive certain records from Company or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Platform, you give us permission to provide these records to you electronically instead of in paper form.
By registering for an Account, you consent to electronically receive and access, via email or the Platform, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address under which your Account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting us at firstname.lastname@example.org, however, if you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Platform, and you will no longer be permitted to use the Platform. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Registration Data on the Platform or by contacting us at email@example.com. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
By providing your mobile phone number when registering your Account and using the 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 (i) perform and improve upon the Indi Platform, (ii) facilitate the carrying out of gigs through the Platform, and (iii) provide you with information and reminders regarding your registration, orientation, upcoming gigs, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming gigs 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 Platform, texting “STOP” in response to any texts, or by emailing opt-out-texts@Indie.Ninja.com 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 opt-out-calls@Indie.Ninja.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.
- REPRESENTATIONS AND WARRANTIES
The Platform is available only to persons who are eighteen (18) years or older (or any greater age required to be deemed to have reached the age of majority under the applicable law of the state or jurisdiction of such person’s primary residence). BY ACCESSING AND USING THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, THE CREATION OF AN ACCOUNT, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD (OR ANY GREATER AGE REQUIRED TO BE DEEMED TO HAVE REACHED THE AGE OF MAJORITY UNDER THE APPLICABLE LAW OF THE STATE OR JURISDICTION OF YOUR PRIMARY RESIDENCE) AND ARE FULLY ABLE AND COMPETENT TO ENTER INTO THESE TERMS OF SERVICE.
You represent and warrant that that you have the right, authority and capacity to enter into, and to be bound by, these Terms of Service and to abide by the terms and conditions of these Terms of Service, and that you will so abide. If you create and Account or accept these Terms of Service on behalf of an entity or agency, or in connection with providing or receiving services on behalf of an entity or agency, you represent and warrant that you have the authority to act on behalf of that entity or agency, and to bind that entity or agency to these Terms of Service. In such case, “User”, “you” and “your” will refer and apply to that entity or agency.
You represent and warrant that (i) all Registration Data and (ii) all User Content and other information that you submit onto the Platform, including, without limitation, any information submitted in connection with posting or applying for a gig or through any chat with another User, is true, accurate, current and complete, (ii) that you are the sole owner of all right, title and interest in, or have obtained all necessary rights and licenses from the applicable owner of, any User Content or other information you submit or upload onto the Platform, and (iii) that such User Content and other information, when used for the purposes in which it is submitted onto the Platform, does not infringe upon the rights of any third party, including, without limitation, intellectual property rights, propriety rights and rights of publicity/privacy. You acknowledge and agree that you shall be solely responsible for all Registration Data, User Content and other information that you post, upload, link to, publish, exchange, or display onto the Platform and that Company reserves the right to reject, refuse to post, edit, modify, remove all or a portion of any such Registration Data, User Content or other information from the Platform that Company determines, in its sole discretion, does not comply with these Terms of Service, or for any other reason, without notice or liability to you.
You represent and warrant that any User Content and other information that you upload to the Platform (i) will not be fraudulent or involve the sale of counterfeit or stolen items; (ii) 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); (iii) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (iv) will not be obscene or contain child pornography or be harmful to minors; (v) 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 (vi) 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.
You represent and warrant that your use of the Platform and your performance of each gig shall be in compliance with these Terms of Service in all respects, as well as any other applicable laws, rules and regulations of any governmental authority, wherever you are located. In furtherance of the foregoing, you represent and warrant that you have obtained or possess, and that you will maintain for the duration of each applicable gig, all valid licenses, certifications, degrees, permits, certificates, approvals, etc. as may be required to perform all of the services and deliverables related to each gig in each applicable jurisdiction in which such services and deliverables are performed.
You acknowledge and agree that certain gigs may require you to be twenty one (21) years of age or older to participate (for example, a gig may take place at an establishment in which you must be twenty one (21) years of age or older to enter or legally be permitted on the premises). In each such case, you represent and warrant that you will not apply for, or participate in, any gig in which you do not meet such additional age limit requirements or restrictions.
You represent and warrant that in connection with each accepted gig, you possess all necessary skills and expertise required to perform your obligations and that you will perform all such obligations in a timely, professional and workmanlike manner, and in accordance with these Terms of Service and any other applicable laws, rules and regulations of any governmental authority, wherever you are located, including, without limitation, (i) showing up to gigs on time and with all required resources and equipment needed to provide the requested services, (ii) delivering high-quality Work Product (defined below) in a timely manner and in accordance with all agreed upon specifications and guidelines provided, and (iii) being available to answer questions and clearly communicating and responding to chats and follow-up inquiries.
You represent and warrant that for each accepted gig, you will obtain and maintain all necessary insurance coverage, including, without limitation, errors and omissions, commercial general liability, professional liability, workers compensation, and automobile liability insurance coverage, as may be required under applicable law or as may otherwise be agreed between you and the Indie or Ninja with whom you have accepted the applicable gig. You further represent and warrant that you will maintain all required or agreed upon minimum coverage limits for the duration of the applicable gig and that you will timely present any certificates of insurance and other documentation as may be reasonable required or requested by the Indie or Ninja with whom to have accepted the applicable gig.
You represent and warrant that you will fulfill all payment obligations for an accepted gig in a timely manner and that you will not delay acceptance of any services or Work Product, or the release of any payment for accepted services or Work Product once completed and/or delivered. You further represent and warrant that you will not use the Platform to make or receive payments for any other services or products other than in connection with an accepted gig.
You represent and warrant that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of Users and that you will not record (whether video or audio or otherwise) any gig or any interaction by or with any User and/or the Company in connection with Platform or any gig without the prior written consent of such User or the Company.
- SOLICITING/ACCEPTING A GIG; SERVICE AGREEMENTS
Indies will be able to solicit a gig by posting a description of the gig onto the Platform, including a general overview of the services requested, deliverables to be provided, a schedule for delivery, the fee being offered in exchange for such services and deliverables, and any other information the Indie deems reasonably necessary. Ninjas will then be able to view the description of the posted gig on the Platform and apply for consideration by clicking the “apply now” button at the bottom of the gig post and submitting any information required by the Indie in connection with the gig application. When a Ninja applies for a gig, a notification will be sent to the Indie. If the Indie is interested in potentially hiring a Ninja who has applied for the gig, the Indie will be able to reach out, via chat on the Platform, to that Ninja, and the two parties will engage in discussions related to the gig, including the disclosure of additional information related to the gig that may be requested by either party. Once an Indie has agreed to hire a Ninja, and the Ninja has agreed to accept the gig, the Indie must click the “I accept” button at the bottom of the application notice received when the Ninja first applied, which will send an acceptance notice to the Ninja. If the parties have agreed to update any terms related to the gig, including the description of the services, the gig fee, the delivery schedule, etc., the Indie will be able to revise such terms at this time, prior to confirming its acceptance. The Ninja must then click the “confirm acceptance” button at the bottom of the acceptance notice received once the Indie has selected the Ninja. Once the Indie and the Ninja have each agreed on the terms of a gig and clicked the “I accept” and “confirm acceptance” buttons per the procedure described above, a valid and binding contract (the “Service Agreement”) will automatically be formed between the parties. In addition, the Indie’s Account will automatically be charged a Platform Service Fee (as defined and described in more detail in Section 6 below), which will be processed through the PSP.
The terms of the Service Agreement include the terms set forth in this Section 5, the engagement terms proposed and accepted between the Indie and the Ninja who have accepted the applicable gig on the Platform, and any other contractual terms accepted by both the Indie and the Ninja pursuant to a separate written agreement, to the extent such terms do not conflict with these Terms of Service and do not expand Company’s obligations or restrict Company’s rights under these Terms of Service. 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 any Indie or Ninja.
With respect to each Service Agreement, the Indie will not be responsible for the payment or reimbursement of any out-of-pocket costs or expenses (including, without limitation, any travel, meal or lodging expenses) incurred by the Ninja in connection with the performance of the services requested in connection with the applicable gig.
With respect to each Service Agreement, the Indie and Ninja acknowledge and agree that all services, work product, creative, deliverables, information, data, designs, ideas, know-how, processes, software, programs, documentation, and materials created, developed, produced and/or generated by the Ninja in connection with the performance its obligations under the gig for the Indie, and all intellectual property rights therein, including, without limitation, copyrights, trademarks, service marks, and patents (collectively “Work Product”) shall be deemed a “work-made-for-hire” as defined under the United States Copyright Act, as amended. Such Work Product is and shall remain solely owned by the Indie, and the Indie shall be deemed the sole author thereof for all applicable purposes. To the extent that any Work Product created by a Ninja does not qualify as a work-made-for-hire, such Ninja hereby assigns and transfers to Indie, exclusively, unconditionally and irrevocably, in perpetuity, all such Work Product, including, but not limited to, copyrights, trademarks, patents, title, moral rights, and all other ownership rights held by such Ninja in and to such Work Product. Ninja represents and warrants that no Work Product will infringe upon the intellectual property rights of any third party.
With respect to each Service Agreement, the Ninja shall not use or incorporate any content, materials, data, information, copyrights, trademarks, service marks, or other intellectual property (including, without limitation, rights of publicity/privacy) of any third party (collectively, “Third Party Content”) into services and deliverables, or any Work Product, without the prior written consent of the Indie in each instance, and upon approval by the Indie, the Ninja shall be responsible for obtaining all necessary rights, clearances, permissions, and consents for, and making all related payments with respect to, such Third Party Content, such that the use of the Third Party Content in connection with the services and deliverables, or as incorporated into any Work Product, does not infringe upon the rights of any such third party, and each Ninja hereby represents and warrants as such.
With respect to any materials, content, information, data, copyrights, trademarks, and other intellectual property provided to Ninja by or on behalf of any Indie in connection with a gig (“Indie Content”), the Indie is and shall remain the sole and exclusive owner of such Indie Content; provided, the Indie shall grant a limited, revocable, non-transferrable, non-assignable, non-sublicenseable license to Ninja to use such Indie Content solely to the extent necessary to perform its obligations under the applicable gig. With respect to any materials, content, information, data, copyrights, trademarks, and other intellectual property in existence prior to the entry into a Service Agreement, or created by Ninja outside the scope of a Service Agreement and without the use of any resources, tools, or premises of Indie (“Ninja Content”), the Ninja is and shall remain the sole and exclusive owner of such Ninja Content; provided, the Ninja shall grant a royalty-free, perpetual, irrevocable, non-exclusive, transferrable, assignable, sublicenseable license to the Indie to use, copy, distribute, publish, modify, transfer, transform and otherwise exploit such Ninja Content, solely to the extent such Ninja Content is integrated and incorporated into any Work Product.
Indie represents and warrants to Indie that the Indie Content will not infringe upon the intellectual property rights of any third person. Ninja represents and warrants to Indie that all approved Third Party Content, Ninja Content and Work Product (excluding Indie Content incorporated therein) will not infringe upon the intellectual property rights of any third person.
Each Ninja is responsible for completing all of its obligations in connection with any gig directly, and may not assign, delegate or hire any subcontractor, assistant, or other person to assist in the performance of such obligations.
Each Indie shall pay its Ninja directly for the agreed upon fee for completed gig services, as well as approved expenses incurred by the Ninja in performing such services, through the PSP (defined below) as indicated on the Platform at the rates agreed to by the parties in the Service Agreement and pursuant to the terms of Section 6 below. Each party agrees to comply with this Service Agreement during the engagement, performance and completion of a gig. Each party acknowledges and agrees that it shall be solely responsible for all federal, state, local and other applicable taxes (including, without limitation, VAT) that may be incurred in connection with the receipt of services, or the receipt of compensation for such services, in connection with a gig.
If any change in the scope of the services or deliverables to be provided in connection with any gig is agreed upon between an Indie and a Ninja after creation of the Services Agreement, the Indie and Ninja must promptly notify Company at firstname.lastname@example.org of such changes at which point Company in its sole discretion may impose additional Platform Service Fees related to such gig.
In addition to any other available remedies, an Indie or Ninja may terminate the Service Agreement: (i) if the other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business; or (ii) upon the occurrence of a material breach of the Service Agreement by the other party that is not cured within thirty (30) days of the breaching party’s receipt of written notice identifying the matter constituting the breach. In the event of a termination of the Service Agreement, the Ninja will promptly provide the Indie with all Work Product, in any stage of completion, created, developed, produced and/or generated through the effective date of termination, and the Indie shall make payment of the applicable pro-rata portion of any services and deliverables completed through the effective date of termination (unless the Service Agreement was terminated as a result of the Ninja’s material breach of its obligations, in which case the Ninja shall forfeit the right to receive any payment in connection with such gig).
Both parties agree to notify Company at email@example.com of any disputes prior to negotiation 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
As part of the Account registration process, Users of the 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”). Payment for gigs shall be made directly from the Indie to the Ninja through the Platform and not by Company. If an Indie fails to pay a Ninja for accepted services and deliverables provided through the Platform, Company may, in its sole and absolute discretion, pay the Ninja for such accepted services and deliverables but Company is not obligated to do so.
Upon the agreement of both parties to the Service Agreement between an Indie and Ninja, the Indie’s credit card will be charged for the full amount of the agreed amount in the Service Agreement. Simultaneously, the Ninja’s account will automatically be assessed a variable platform service fee assessed by Company based on a percentage of the agreed upon fee to be paid by Indie to Ninja for the applicable gig (the “Platform Service Fee”), which Platform Service Fee will be payable to Company through the Platform using the PSP. The Platform Service Fee shall be non-refundable; provided, that Company may, but is not obligated to, refund the Platform Service Fee in its sole discretion in the event any gig is terminated by the Indie as a result of a material breach by Ninja of its gig obligations.
Upon completion of each gig, the Ninja will submit a request for invoice through the Platform to the Indie, which invoice will include the agreed upon fees for the services and deliverables provided in connection with such gig. Once the Ninja has submitted the invoice, the Indie’s Account will be notified and the Indie will be able to view the invoice on the Platform and approve payment of the invoice by clicking the “pay now” button. When the Indie clicks the “pay now” button, payment of the invoice will be processed on the Platform through the PSP, less the Platform Service Fee previously paid to Company upon the initial entry into the Service Agreement.
Users may be required to register with the PSP, agree to terms of service of the PSP and go through a vetting process at the request of the PSP to set their Account with the PSP. Terms of service between Users and the PSP retained by Company are available at https://stripe.com/docs/connect/updating-accounts#tos-acceptance (the “PSP Terms”). By accepting these Terms of Service, each User agrees that they have downloaded or printed, and reviewed and agreed to the PSP Terms. Please note that Company is not a party to the PSP Terms and that you, the PSP and any other parties listed in the PSP Terms (currently, Stripe) are the parties to the PSP Terms and that Company has no obligations or liability to any User under the PSP Terms. Each User represents and warrants that it is and will at all times remain compliant with the PSP Terms.
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 may be placed on the 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 depending on the estimated value of the gig and reimbursements.
Company reserves the right, in its sole discretion (but not the obligation), upon request from a Ninja or an Indie or upon notice of any potential fraud, unauthorized charges or other misuse of the Platform, to (i) place on hold any invoice payment, or (ii) refund, provide credits or arrange for the PSP to do so.
- RELATIONSHIP BETWEEN PARTIES
Ninjas and Indies are independent contractors and are not employees of the Company, or one another, and each Ninja and Indie is solely responsible for all of its own employees, subcontractors, labor costs and, except as otherwise provided in these Terms of Service, expenses (including without limitation timely payment of all income taxes, payroll taxes and related withholdings, and applicable VAT) arising in connection with any gig. No Ninja or Indie has the authority to enter into any written or oral contract (whether express or implied) on behalf of Company or any other Ninja or Indie (as applicable) or to bind Company or any other Ninja or Indie to any third party obligations. Company does not set a Ninja’s work hours or location of work and will not provide any equipment, labor or materials needed for a particular gig.
Each User hereby acknowledges and agrees that Company does not perform gigs and does not employ individuals to perform gigs, nor does Company supervise, direct, control, oversee, or monitor, and is not in any way responsible or liable for, any services, deliverables or other obligations of any Ninja or Indie in connection with any gig. The Platform only enables connections between Users for the fulfillment of gigs. Company does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of gigs, Indies, or Ninjas, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations or warranties about the suitability, reliability, timeliness, or accuracy of the gigs requested and services and deliverables provided by Users identified through the Platform whether in public, private, or offline interactions. Each User assumes all liability for proper classification of such User’s work based on applicable legal guidelines. Company shall have no liability whatsoever to any User with respect to any services and deliverables provided, or for the actions or inactions of any User, in connection with any gig.
- PUBLIC AREAS; CONDUCT WITH OTHER USERS; PROHIBITED USES OF PLATFORM
The Platform contains public User profiles, chat and other User-to-User messaging functions, review and rating systems, and gig postings and applications, and may in the future contain additional communication facilities such as blogs, message boards, news groups, forums and other interactive community-based systems that allow Users to communicate with other Users (collectively, “Public Areas”). You may only use such Public Areas to send and receive messages and material that are relevant and proper to the applicable forum. You further acknowledge and agree that submissions made to Public Areas may be publicly available to all other Users, or in certain cases, specific other Users (i.e., gig applications will be made available only to the Indie who made the gig posting), and that you will be publicly identified by your Account username or login identifier 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.
All Users shall be solely responsible for all interactions with other Users of the Platform. In your interactions with other Users, you agree to conduct yourself professionally, civilly and respectfully at all times. While using the Platform, you agree that you shall not under any circumstances harass or make mischief against any other User of the Platform. You hereby acknowledge and agree that Company does not actively monitor or police the Public Areas or specific interactions between Users of the Platform (and has no obligation to do so) and you hereby disclaim and hold Company harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User. Notwithstanding the foregoing, Company reserves the right to determine, at its sole discretion, what constitutes harassment or mischief, and where that has occurred, and may, also at its sole discretion, partially or completely deny, suspend or terminate access to the Platform to any infringing party.
With limiting the foregoing, while using the 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 Company or other Users, or use information learned from the Platform or during the performance of gigs to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of Company or any other User outside of the Platform.
- Upload User Content to the Platform, or otherwise utilize Public Areas to communicate or distribute information, that is defamatory, profane, infringing, obscene, unlawful, 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.
- Use the Platform for any purpose, including, but not limited to posting or completing a gig, in violation of local, state, national, or international law.
- Upload User Content, or files that contain software or other material, that violates the intellectual property rights (or rights of privacy or publicity) of any third party or for which you have not obtained the necessary rights or permissions to use accordingly.
- Upload User Content or files that contain viruses, Trojan horses, corrupted files, malware, spyware, bugs, or any other similar software that may damage or infiltrate the operation of any other User’s computer.
- Advertise or offer to sell any goods or services for any commercial purpose through the Platform which are not relevant to the gig services offered or received through the Platform.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or User or knowingly allow any other person or entity to use your identification or Account to post or view comments on, or otherwise utilize, the Platform.
- Post the same gig repeatedly, or apply to the same gig 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 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 or any other User, without the prior written consent of Company or such User.
- Use a robot, spider, manual and/or automatic processes, or devices to data-mine, data-crawl, scrape or index the Platform in any manner.
- Hack or interfere with the Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the 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 that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the Platform to collect usernames and or/email addresses of Users by electronic or other means.
- Use the 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 or induce any third party to engage in the restricted activities above.
- USER REVIEWS AND FEEDBACK
The Platform contains a User rating and gig performance system that allows Users to rate and provide feedback to other Indies and/or Ninjas with whom such User has hired, or performed services, for a gig (“Rating System”). You acknowledge and agree that this Rating System benefits the marketplace and the efficiency of the Platform and you agree to receive ratings and feedback from other Users through the Rating System. You further acknowledge and agree that Company will make ratings and feedback statements made and/or received by you publicly available to other Users of the Platform. You acknowledge and agree that Company provides this Rating System as a means through which Users can share their opinions publicly and Company does not monitor, verify, approve, or censor these opinions. You acknowledge and agree that you will not use any rating or feedback statement to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User and that you will undertake your own research to be satisfied that a specific Indie or Ninja is the right person with whom to accept a gig.
Company does not investigate any feedback statements posted by Users for accuracy or reliability but may do so if a User requests that Company do so. Company encourages each User to give objective, constructive and honest feedback about the other Users with whom they have hired, or performed services, for a gig. You may be held legally responsible for damages suffered by other Users or third parties as a result of your Rating System statements if such remarks are legally actionable or defamatory. Company is not legally responsible for any feedback statements or comments posted or made available on the Platform by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the Rating System and protect Users from abuse, Company reserves the right (but is under no obligation) to remove posted feedback or information that, in Company’s sole discretion, violates these Terms of Service or negatively affects the Platform’s marketplace. You acknowledge and agree that you will promptly notify Company of any error or inaccurate statement in your Rating System feedback results, and that if you do not do so, Company may rely on the accuracy of such information.
- INTELLECTUAL PROPERTY RIGHTS; STORAGE OF USER CONTENT; INFRINGEMENT CLAIMS PROCEDURE
Company retains all right, title and interest in and to the Platform, including, without limitation, (i) all text, graphics, typefaces, formatting, graphs, designs, editorial content, HTML, look and feel, software, and data, (ii) all business processes, procedures, methods, and techniques used in the Platform, (iii) all other materials and content uploaded or incorporated into the Platform, including, without limitation, all Platform Content (but excluding User Content, which is owned by the applicable User, but which Company has a license to use pursuant to these Terms of Service), and (iv) all associated trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world (collectively, “Platform IP”). Platform IP is protected in all forms, media and technologies now known or hereinafter developed. Company owns all Platform IP, as well as the coordination, selection, arrangement and enhancement of such Platform IP as a Collective Work under the United States Copyright Act, as amended. The Platform IP is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws.
You retain all right, title and interest in and to any User Content that you upload onto the Platform; provided, that you hereby grant to Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferrable, assignable, sublicensable (through multiple tiers) license to exercise all copyright, publicity rights, and any other rights you have in such User Content, in any media now known or not currently known in order to operate, perform, promote, advertise, market, and improve upon the Platform (the “User Content License”).
You acknowledge and agree that Company may establish general practices and limits concerning use of the Platform, including without limitation the maximum number of days that User Content posted to the Platform will be retained by or made available through the Platform and the maximum disk space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the blocking, deletion or failure to store any User Content maintained or transmitted by the Platform. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.
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 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 Company or the applicable owner.
Company respects the intellectual property rights of others and expects all Users to do the same. If you believe, in good faith, that a User of the Platform is infringing your or any third party’s copyrights or other intellectual property rights, please provide notification of such violation containing the following information (“Infringement Notice”) to Company’s designated copyright agent at: Indie.Ninja, Inc., firstname.lastname@example.org or copyright@Indie.Ninja.com, which Infringement Notice must include:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work or other intellectual property that you claim has been infringed and an explanation as to why you think an infringement has taken place;
- A description of where the material that you claim is infringing is located on the Platform;
- Your address, telephone number, and email 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; and
- A statement by you, made under penalty of perjury, that the above information in your Infringement Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Company’s contact information contained in this Section 10 is only for suspected copyright infringement. Contact information for other matters is provided elsewhere in these Terms of Service. Company will remove any Platform Content or User Content that infringes upon the copyright of any person under the laws of the United States upon receipt of such a statement (or any statement in conformance with 17 U.S.C. § 512(c)(3)). United States law imposes substantial penalties for falsely submitting a notice of copyright infringement.
- THIRD PARTY CONTENT
The Platform may include third-party content or links (such as hyperlinks) to third party websites or services (including external websites that are framed by the Platform as well as any advertisements displayed in connection therewith) that are not owned or controlled by Company (collectively, “Third Party Content”). They are provided as an information service, for reference and convenience only. Company does not control any such Third Party Content, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, or products or services. Inclusion of any Third Party Content on the Platform does not constitute or indicate Company’s endorsement thereof and Company shall not be liable or responsible for any Third Party Content transmitted through the Platform. You shall be subject to any additional terms and conditions of use, guidelines or rules applicable to any Third Party Content that you access through the Platform (“Third Party Terms”). All such Third Party Terms are hereby incorporated by reference into these Terms of Service. You acknowledge and agree that Company will not and cannot censor or edit any Third Party Content and that you shall assume the sole responsibility for and risk associated with your use of Third Party Content, including compliance with the terms and conditions of use, privacy policies, or practices associated therewith. Accordingly, Company encourages you to be aware when you leave the Platform and to read the terms and conditions of use and privacy policies associated with any Third Party Content.
By using the Platform, you expressly relieve and hold Company harmless from any and all liability arising from your use of any Third Party Content, including any loss or damage incurred as a result of any dealings between you and any third parties, or as the result of the presence of such Third Party Content on the Platform or the failure of such Third Party Content to function as intended. It is your responsibility to evaluate the content and usefulness of the information obtained from Third Party Content.
For purposes of these Terms of Service, “Confidential Information” means any trade secrets or non-public, proprietary information and data of Company or any other User (whether or not marked as proprietary and confidential), including, without limitation, information relating to the business, affairs or operations of Company or any other User, financial data, business plans or strategies, methodologies, programs, concepts, strategies, materials, research, product plans, products, developments, marketing, customer data, technology, inventions, processes, intellectual property (including, without limitation, any patents, copyrights, trademarks, trade names, trade secrets, trade dress, moral rights, and any applications related thereto), design techniques, employee information, competitor lists, and any and all other information not generally ascertainable from the public or published information, which is disclosed to, received by, or obtained from any source by you pursuant to or as a result of these Terms of Service, your use of the Platform, or any gig. You agree that, without the prior written consent of Company or the other applicable User, you will not disclose or use for your own purposes any Confidential Information. You further agree that you will take all reasonable precautions to protect Confidential Information directly disclosed to you, using at least the same standard of care as you use to maintain the confidentiality of your own Confidential Information. Notwithstanding the foregoing, you may disclose Confidential Information to the extent required by operation of law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under these Terms of Service; provided that you will, unless legally prohibited, provide Company or the other applicable User with reasonable prior written notice sufficient to permit Company or the other applicable User an opportunity to contest or limit the nature of such disclosure. You shall promptly notify Company or the other applicable User in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. If you commit, or threaten to commit, a breach of this Section 13, Company or the other applicable User will have the right to seek injunctive relief from a court of competent jurisdiction.
- RELEASES; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
Neither Company nor its affiliates or licensors is responsible for the conduct, whether online or offline, of any User of the 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 Platform.
The Platform is only a venue for connecting Users. Because Company is not involved in the actual contact between Users or in the completion of any gig, 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 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.”
YOUR USE OF THE PLATFORM IS ENTIRELY AT YOUR OWN RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE PLATFORM OR THIRD PARTY CONTENT LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND 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 PLATFORM WILL BE UNINTERRUPTED OR THAT THE PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY GIG OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE 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 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 AN INDIE MAY USE TO EXPEDITE SELECTION OF A NINJA, EACH INDIE IS RESPONSIBLE FOR DETERMINING THE GIG AND SELECTING THEIR NINJA AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY AN INDIE AND DOES NOT RECOMMEND ANY PARTICULAR NINJA. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY NINJA’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE 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 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.
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 PLATFORM OR THE GIG 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 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 AND COMPANY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR COMPANY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR COMPANY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND COMPANY FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, COMPANY, AND ALL PARTIES TO ANY SUCH PROCEEDING.
You hereby agree to indemnify, defend and hold harmless, Company and its directors, officers, employees, affiliates, content partners, vendors, third party licensors, distributors, advertisers, and other contracting parties, together with their respective director, officers, employees, successors, assigns, consultants and other agents, from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim, action, or proceeding brought by a third party based on: (i) your use of, or inability to use, the Platform or any gig services; (ii) any breach of any representation, warranty, covenant or obligation of yours under these Terms of Service; (iii) any Registration Data or User Content posted by you onto the Platform; (iv) your violation of any applicable law or regulation; or (v) your violation of any third party right, including, but not limited to, any intellectual property right. Company shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon Company’s request. 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.
- GOVERNING LAW
These Terms of Service and the relationship between you and Company shall be governed by and construed under the internal law of the State of New York without regard to its conflict of law provisions. Except with respect to any Claim (defined below) subject to arbitration pursuant to Section 17 below, all other Claims shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York and you agree to submit to the personal jurisdiction and venue of such courts; provided, that Company reserves the right to bring proceedings against you for breach of these Terms of Service in any other jurisdiction.
- DISPUTE RESOLUTION - ARBITRATION
To expedite resolution and reduce the cost of any dispute, claim or controversy between you and Company arising out of or related to these Terms of Service or your use of the Platform (each, a “Claim”, and collectively, “Claims”), you and Company agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally in good faith 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 address for such notices is Indie.Ninja, Inc., [insert address], Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Company may initiate arbitration while engaging in the informal negotiations.
IN THE EVENT THAT INFORMAL NEGOTATIONS FAIL TO SETTLE ANY CLAIM, YOU AND COMPANY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL SUCH 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 (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of these Terms of Service 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: these Terms of Service and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the Platform, services, gigs, your relationship with Company, the threatened or actual suspension, deactivation or termination of your Account or these Terms of Service, 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, state or international equivalent 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.
You and Company agree that any arbitration will be limited to the Claim 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 is addressed separately below in this Section 17. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of these Terms of Service, the Arbitration Agreement or the AAA Rules (defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, 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.
Notwithstanding any other provision of these Terms of Service or the Arbitration Agreement, to the fullest extent allowed by law: (i) 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 (ii) for any Claim brought on a private attorney general basis, including under the California PAGA, both you and Company agree that any such Claim 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 these Terms of Service, 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 these Terms of Service; (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, you and Company agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in 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 these Terms of Service 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 Users, but is bound by rulings in prior arbitrations involving the same User 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 you, however, file a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed $10,000, 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 you; (B) arise out of, or relate to, the Company’s actual or threatened deactivation of your Account; (C) arise out of, or relate to the Company’s actual or threatened termination of these Terms of Service; or (D) arise out of, or relate to, monies earned or paid for gig services (as defined above, including the Platform Service Fee), tips, bonuses or monies owed by any other User or Company to you, other Company sponsored promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “User 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 User 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 jurisdiction in which you provide services to the other applicable User(s), unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (i) 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 Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.); and (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 you and Company will take place New York, New York.
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 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 you or Company from bringing an administrative claim before any agency in order to fulfill your or Company’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 this Section 17, 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.
YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT BY NOTIFYING COMPANY IN WRITING WITHIN 30 DAYS OF THE DATE YOU FIRST REGISTERED FOR THE PLATFORM OR 30 DAYS FROM THE DATE YOU ACCEPTED THESE TERMS OF SERVICE ON THE PLATFORM. TO OPT OUT, YOU MUST SEND A WRITTEN NOTIFICATION TO COMPANY AT INDIE.NINJA, INC., [INSERT ADDRESS], ATTENTION: LEGAL, THAT INCLUDES (A) YOUR ACCOUNT USERNAME, (B) YOUR NAME, (C) YOUR ADDRESS, (D) YOUR TELEPHONE NUMBER, (E) YOUR EMAIL ADDRESS, AND (F) A CLEAR STATEMENT INDICATING THAT YOU 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.
- 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 14 of these Terms of Service.
- GENERAL PROVISIONS
Except as explicitly stated otherwise, any notices to Company shall be sent by certified mail, return receipt requested, to [insert mailing address] or via electronic mail to email@example.com, including any questions you may have about the terms and conditions of use set forth in these Terms of Service.
Failure by Company to enforce any provision(s) of these Terms of Service will not be construed as a waiver of any provision or right.
These Terms of Service constitute the entire agreement between you and Company with respect to the subject matter hereof.
If any provision of these Terms of Service 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 Terms of Service may not be assigned or transferred by you without our prior written approval.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website, the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Company may assign or transfer these Terms of Service 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. These Terms of Service will inure to the benefit of Company, its successors and assigns.