Effective Date: October 26, 2019
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND ONENEIGHBOR HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 26 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST ONENEIGHBOR TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP, OR REPRESENTATIVE ACTION OR PROCEEDING. AS A PROVIDER, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 26.
MATERIAL TERMS AND NOTICES
● The Platform connects you to other Users. You are neither an employee nor subcontractor of OneNeighbor.
● The use of the Platform may be subject to separate third-party terms of service and fees, including, without limitation, such as terms of service and fees imposed by your mobile network operator (“Carrier”), including fees charged for data usage and overage, which are your sole responsibility;
● The Platform is provided “as is” without warranties of any kind, and OneNeighbor’s liability to you is limited regarding the performance of Services;
● Access to certain features of the Platform may require access to information about the location of your device, such as GPS coordinates;
● We may, without further notice or warning and in our discretion, access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users (as defined in Section 2) that occur through the Platform for our business purposes, including to provide and improve customer service and the Platform, fraud prevention, and to identify violations of this Agreement; and
● You agree not to circumvent the Platform by scheduling and/or paying for Services and/or Additional Services outside the Platform.
2. Platform Connects Users
For purposes of this Agreement, the services provided by Providers to their Customers that are scheduled through the Platform shall be referred to as the "Services.” Services specifically do not comprise “Excluded Services” (particular jobs deemed ineligible for scheduling or performing through the Platform due to applicable licensing/permitting regulations and other similar requirements).
Unless otherwise disclosed, Providers are deemed to be unlicensed. Please note that in certain markets Provider may be required to have a license to perform certain Services that will exceed a monetary threshold. For example, regulations applicable in certain markets require a license for work that will total more than $500.00. Accordingly, Customers must determine for themselves whether a Provider is qualified to perform the requested Service. Customers should consult their state or local requirements to determine whether certain Services are required to be performed by a licensed professional.
ANY DECISION BY USERS TO OFFER OR ACCEPT SERVICES THROUGH THE PLATFORM IS A DECISION MADE IN SUCH USER'S SOLE DISCRETION. EACH SERVICE PROVIDED BY A PROVIDER TO A CUSTOMER SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN THAT PROVIDER AND CUSTOMER. PROVIDERS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR SUBCONTRACTORS OF ONENEIGHBOR. ONENEIGHBOR MAKES NO REPRESENTATION AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OF USERS, NOR DOES IT HAVE CONTROL OVER OR MAKE REPRESENTATIONS REGARDING THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER RELATING TO ANY SERVICES. ONENEIGHBOR DOES NOT HAVE CONTROL OVER THE QUALITY, TIMING OR LEGALITY OF SERVICES DELIVERED BY PROVIDERS. ONENEIGHBOR HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICES PROVIDED TO CUSTOMERS BY PROVIDERS, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANT OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE. EXCEPT AS OTHERWISE SET FORTH HEREIN, ONENEIGHBOR IS NOT AFFILIATED WITH, ENDORSED OR SPONSORED BY ANY PROVIDER.
3. Links to Other Websites
Our Service may contain links to third-party web sites or services that are not owned or controlled by OneNeighbor.
OneNeighbor has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that OneNeighbor shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.
4. Provider Background and Identity Check Process
Providers are responsible for all background checks, identity checks, licenses, certifications, compliance with all federal, state and local regulations, and any other industry standard credentials for the Services they or their representatives perform. While Providers are responsible for all industry standard credentials, Providers hereby give consent to OneNeighbor to conduct background checks as often as required in compliance with applicable law, including without limitation the Fair Credit Reporting Act. Although OneNeighbor can perform background and identity checks on each Provider, OneNeighbor cannot confirm that each Provider is who they claim to be, and therefore, OneNeighbor cannot and does not assume any responsibility for the accuracy or reliability of the identity or background check information or any information provided through the Service.
YOU ACKNOWLEDGE AND AGREE THAT ONENEIGHBOR IS NOT LIABLE FOR DAMAGE THAT MIGHT ARISE OUT OF THE SERVICES. ONENEIGHBOR IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING PROVIDERS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY SERVICES. Each User should exercise caution and common sense to protect their personal safety and property, just as you would when interacting with any person with whom you do not know.
6. Job Fees for Services and Additional Services; Excluded Services
Users of the Platform contract for the Services directly with other Users. OneNeighbor is not a party to any contracts for the Services. The Platform facilitates these contracts by supplying a medium through which Customers can connect with Providers, schedule the Services, and make payments for the Services. Notwithstanding the foregoing, Customers may not circumvent the Platform by using the Platform to connect with Providers and then engage those Providers for Services outside of the Platform.
While we will use commercially reasonable efforts to protect all payment method information and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. The Job Fee quoted is exclusive of taxes. OneNeighbor is not responsible or liable for any taxes incurred in connection with the Service excluding taxes on OneNeighbor's income. Customers will be liable for all transaction taxes on the Service(s) provided (other than taxes based on OneNeighbor's income).
Notwithstanding the above, Providers may request an adjustment of their applicable Job Fees upon written notice to the attention of OneNeighbor’s General Counsel. As a Provider, you may not solicit or engage Customers in Additional Services outside of the Platform, unless it is a Service not covered by the Platform and you have obtained written permission from OneNeighbor's General Counsel. OneNeighbor reserves the right to withhold all or a portion of Job Fees if it believes that you have attempted to defraud or abuse OneNeighbor or OneNeighbor's payment systems.
i. Use Fee. As a Provider, in exchange for permitting you to offer your services through the Platform and utilize the ancillary services and benefits thereof, you agree to pay OneNeighbor (and permit OneNeighbor to retain) a fee based on a percentage of the Job Fee on each transaction in which you provide Services ("Use Fee"). The amount of the applicable Use Fee will be determined by the category and market location of the job and will be communicated to you upon acceptance of providing service to a Service Group. OneNeighbor reserves the right to change the Use Fee at any time in OneNeighbor's sole and absolute discretion. Continued use of the Platform after any such change in the Use Fee calculation shall constitute your consent to such change.
ii. Customer Materials. If a service requires the Provider to purchase materials that transfer ownership to the Customer as part of the service, the Provider may request a partial pre-payment from OneNeighbor for some or all Customers in a Service Group. Whether to allow partial pre-payments and any associated additional terms or fees is at the sole discretion of OneNeighbor, and are accepted by the Provider as part of their agreement to provide service to a Service Group. Customers purchasing a service that includes Customer Materials may be charged several days prior to any Provider pre-payment, which OneNeighbor will try to notify Customers of.
All partial pre-payments received by a Provider must be used to procure the materials for which it is intended, and upon cancellation of the service for any reason, including Force Majeure events, the Provider is required to refund the entire pre-payment to OneNeighbor within 5 business days. Any mistakes, incompatibilities, errors or other issues preventing the requisite Customer Materials from being utilized to provide service must be rectified solely by the Provider, neither the Customer nor OneNeighbor is responsible for any additional charges arising from such issues.
OneNeighbor is not responsible for any misuse of pre-payment funds by the Provider. OneNeighbor is not responsible for any aspects of Customer Materials, including but not limited to, appearance, quality, cost, source, usability and compatibility. Any current or future problems with or issues arising from Customer Materials is the sole responsibility of the Provider and not OneNeighbor.
8. Service Cancellations and Force Majeure Events
OneNeighbor's cancellation policy for specific Services is as follows:
i. "Force Majeure Event"means the occurrence of:
1. an act of war (whether declared or not), hostilities, invasion, act of foreign enemies, terrorism or civil disorder;
2. ionizing radiations, or contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;
3. pressure waves from devices travelling at supersonic speeds or damage caused by any aircraft or similar device;
4. a strike or strikes or other industrial action or blockade or embargo or any other form of civil disturbance (whether lawful or not), in each case affecting on a general basis the industry related to the affected Services and which is not attributable to any unreasonable action or inaction on the part of the Company or any of its Subcontractors or suppliers and the settlement of which is beyond the reasonable control of all such persons;
5. specific incidents of exceptional adverse weather conditions in excess of those required to be designed for in this Agreement which are materially worse than those encountered in the relevant places at the relevant time of year during the twenty (20) years prior to the Effective Date;
6. tempest, earthquake or any other natural disaster of overwhelming proportions; pollution of water sources resulting from any plane crash;
7. discontinuation of electricity supply, not covered by the agreement concluded with the utility company; or
8. other unforeseeable circumstances beyond the control of the Parties against which it would have been unreasonable for the affected party to take precautions and which the affected party cannot avoid even by using its best efforts,
which in each case directly causes either party to be unable to comply with all or a material part of its obligations under this Agreement.
We may, without further notice or warning and in our discretion, monitor or record telephone conversations that we have with you or anyone acting on your behalf for quality control and training purposes or to protect our rights. We may, without further notice or warning, and in our discretion, access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users that occur through the Platform for our business purposes, including to provide and improve customer service and the Platform, fraud prevention, and to identify violations of this Agreement.
10. Accessing the Platform and Account Security
We reserve the right to withdraw or amend the Platform, and any service we provide on the Platform in our sole discretion without notice. We will not be liable if for any reason that all or any part of the Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Platform, or the entire Platform, to Users for any reason or no reason.
You are responsible for:
● Making all arrangements necessary for you to have access to the Platform; and
● Ensuring that all persons who access the Platform through your account are aware of this Agreement and comply with them.
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Platform or portions of it using your user name, password or other security information, including Third Party Site Password. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.
THE SERVICE IS ONLY A VENUE FOR CONNECTING USERS. EXCEPT AS OTHERWISE SET FORTH HEREIN, ONENEIGHBOR IS NOT AFFILIATED WITH ANY CARRIER, PROVIDER, OR THIRD PARTY SERVICE. ANY DISPUTE YOU HAVE WITH ANY CARRIER, PROVIDER, OR THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE ONENEIGHBOR (AND OUR 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.
12. Limited License; Intellectual Property Rights
You may not modify, alter, reproduce, or distribute the Platform. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Platform. You must not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service), nor attempt to disable or circumvent any security or other technological measure designed to protect the Platform or any content available through the Platform.
The Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by OneNeighbor, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You must not:
● Modify copies of any materials from this site;
● Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text; or
● Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.
Except as permitted herein, you must not access or use for any commercial purposes any part of the Platform or any services or materials available through the Platform.
13. Prohibited Uses
You may use the Platform only for lawful purposes and in accordance with this Agreement. You agree not to use the OneNeighbor Platform:
● In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
● For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
● To impersonate or attempt to impersonate OneNeighbor, a OneNeighbor employee, another User or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing); or
● To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Platform, or which, as determined by us, may harm OneNeighbor or Users of the Platform or expose them to liability.
Additionally, you agree not to:
● Use the Platform in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Platform, including their ability to engage in real time activities through the OneNeighbor Platform.
● Use any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform.
● Use any manual process to monitor or copy any of the material on the Platform or for any other unauthorized purpose without our prior written consent.
● Use any device, software or routine that interferes with the proper working of the Platform.
● Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
● Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer or database connected to the Platform.
● Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.
● Otherwise attempt to interfere with the proper working of the Platform.
14. Digital Millennium Copyright Act
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Platform, you may contact our Agent at email@example.com, Attn: OneNeighbor Copyright Compliance Team.
Any notice alleging that materials hosted by or distributed through the Platform infringe intellectual property rights must include the following information:
● an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
● a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
● a description of the material that you claim is infringing and where it 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 use of those materials on the Platform is not authorized by the copyright owner, its agent, or the law; and
● a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Repeat Infringers. OneNeighbor will promptly terminate without notice the accounts of Users that are determined by OneNeighbor to be "Repeat Infringers" to the fullest extent permitted under applicable law. A Repeat Infringer is a User who has been notified of infringing activity or has had User Contributions (as defined in Section 15 below) removed from the Platform at least twice.
15. User Contributions
The Platform may contain profiles and other interactive features (collectively, "Interactive Services") that allow Users to post, submit, publish, display or transmit to other Users (hereinafter, "post") content, photographs, images, or other related materials (collectively, "User Contributions") on or through the Platform, including User-supplied profile pictures and job/service-related photos.
You represent and warrant that:
● You own or control all rights in and to the User Contributions and have the right to grant the licenses granted above to us and our licensees, successors and assigns and other Users.
● All of your User Contributions do and will comply with this Agreement.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not OneNeighbor, are fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other User of the Platform.
In exchange for the right to use the Platform, Users who post their User Contributions hereby irrevocably grant to OneNeighbor the following rights in connection with the display, distribution, transmission, or broadcasting on any media, including the Internet, of their User Contributions in connection with the Platform:
● the right to use User Contributions in the advertising, marketing, and/or publicizing of the Platform to perform and improve upon the Platform; or
● the right to exercise all copyright, publicity rights, and any other rights therein.
Such right applies in any media now known or not currently known, and such right is hereby deemed to be perpetual, non-exclusive, unrestricted, royalty-free, worldwide, irrevocable, transferable, and sub-licensable (through multiple tiers). User hereby releases OneNeighbor from (and shall not bring any) proceeding, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon the use of your User Contributions.
16. Monitoring and Enforcement
We have the right to:
● Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
● Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
● Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform.
● Terminate or suspend your access to all or part of the Platform for any or no reason, including without limitation, any violation of this Agreement.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the OneNeighbor. YOU WAIVE AND HOLD HARMLESS ONENEIGHBOR AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
17. User Disputes
We understand that occasionally disputes may arise between or among our Users. In the event a dispute initiated by either a Provider or a Customer cannot be resolved independently, you hereby agree, at OneNeighbor’s request, to participate with good faith, to the extent you are reasonably able to do so, in a neutral resolution, mediation, or arbitration process conducted by OneNeighbor or a neutral third-party mediator or arbitrator selected by OneNeighbor. Notwithstanding the foregoing, you acknowledge and agree that OneNeighbor is under no obligation to become involved in or impose resolution in any dispute between or among Users or any third party.
18. Provider Provisions
a. Insurance. As a Provider, you acknowledge and agree that it is your responsibility to maintain in full force and effect adequate workers' compensation (or, if permitted by law, occupational accident insurance), unemployment, liability, and other forms of insurance with policy limits sufficient to protect and indemnify OneNeighbor and its affiliates, and each of their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from the conduct, acts, or omissions of you or your assistants, agents, contractors, servants, or employees.
b. Provider Assistants. Before any Services are performed by any assistants, helpers, subcontractors or other personnel engaged by a Provider, the Provider shall require any such individuals to become a registered, approved Provider on the OneNeighbor Platform pursuant to OneNeighbor policies as described herein. Providers that utilize non-registered, non-approved personnel to assist with a Service could have their permission to access the Platform revoked. Each Provider assumes full and sole responsibility for the payment of all compensation, benefits and expenses of helpers, assistants, subcontractors and/or other personnel, if any, and for all required and applicable state and federal income tax withholdings as to the Provider and all persons engaged by the Provider in the performance of the Services.
c. Equipment. As a Provider, you are solely responsible for any costs or expenses incurred by you in connection with the performance of the Services, and in no event shall OneNeighbor reimburse, or be required to reimburse, you for any tools, materials, costs or expenses used in connection with the Services. You shall furnish and maintain, at your own expense, the tools, equipment, supplies, and other materials used to perform the Services. You, at your sole discretion, shall determine what equipment, supplies, and materials are necessary to perform the Services, and where, when, and at what cost, to purchase or maintain any necessary equipment, supplies, tools, and materials. At your request, OneNeighbor may offer to you certain equipment, supplies, and materials for purchase. You are not required to purchase any equipment, tools, supplies, or materials from OneNeighbor at any time.
d. Representations. By providing Services as a Provider on the Platform, you represent, warrant, and agree that: (i) you are solely responsible for obtaining the necessary licenses and/or certifications for performance of the Services or Additional Services; (ii) you will not transfer or sell your User account, password and/or identification to any other party; (iii) you will be solely responsible for any and all liability that results from or is alleged as a result of your provision of Services, including, but not limited to personal injuries, death and property damages; (iv) you will comply with all applicable laws, rules and regulations while providing Services, and you will be solely responsible for any violations of such provisions; (v) you will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you; (vi) you will not attempt to defraud OneNeighbor or a Customer in connection with your provision of Services or Additional Services; (vii) you will not demand that a Customer pay in cash, or use a credit card reader or other off-platform payment service, to accept payment for Services or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement; and (viii) you are solely responsible for conducting and maintaining background checks on all of your employees, assistants, helpers, subcontractors and other personnel engaged by a Provider.
e. Reimbursement of Resolution Costs. Notwithstanding anything set forth herein to the contrary, you further represent, warrant, and agree (i) to pay all reasonable out-of-pocket expenses incurred by OneNeighbor in connection with the resolution of any property damage or other claims resulting from a Service you performed for a Customer, and (ii) that OneNeighbor shall have the right to suspend your Provider account until it has received payment in full for all such reimbursable amounts.
f. Non-Circumvention. Within twelve (12) months after the last time Provider provides Services to a Customer as arranged through the Platform, Provider agrees not to provide any services to the same Customer other than as arranged through the Platform. Provider shall be liable for the fees set forth in Section 4 for all services provided to Customers in breach of the previous sentence, in addition to all other remedies provided by this Agreement and applicable law, including injunctive relief. Provider agrees to indemnify OneNeighbor from any attorneys’ fees and costs it incurs in collecting its fees from a Provider that breaches this non-circumvention provision.
19. Terms and Termination
This Agreement is effective upon your creation of a User account, as amended by any modifications made pursuant to Section 1. You may discontinue your use of the Platform or participation in the Services at any time, for any reason. We may suspend or deactivate your User account (either as a Provider and/or Customer), or revoke your permission to access the Platform, at any time, for any reason, upon notice to you. We reserve the right to refuse access to the Platform to any User for any reason not prohibited by law. Either party may terminate the Agreement for any reason upon written notice to the other party. The terms of this Agreement, and any subsequent modifications of this Agreement, shall remain in effect at all times after you or OneNeighbor terminate your participation or access to the Platform or Services.
20. Changes to the Platform
We may update the content on this Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Platform may be out of date at any given time, and we are under no obligation to update such material.
21. Information About You and Your Visits to the Platform
22. Confidential Information
a. OneNeighbor's Confidential Information. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of OneNeighbor and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify OneNeighbor in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to OneNeighbor upon termination of this Agreement for any reason whatsoever. The term "Confidential Information" shall mean any and all of OneNeighbor's trade secrets, confidential and proprietary information and all other information and data of OneNeighbor that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
b. Customer's Confidential Information. As a Provider, you understand that in performing the Services, you will receive certain private and/or confidential information regarding the Customer and will have access to their homes and personal belongings. Except upon order of government authority (e.g., court, administrative agency) having jurisdiction, or upon express written consent by the Customer, you agree that you shall not publish, disseminate or disclose, for your own benefit or the benefit of any third party, any confidential information regarding the Customer, including addresses, telephone numbers and/or financial information. You further agree not to engage in any activity which violates the privacy of any Customers, including, but not limited to, taking unauthorized photographs or making unauthorized audio or video recordings of Customers or their homes or their personal belongings; or publishing, disseminating or disclosing any such photographs or recordings. You acknowledge that your failure to comply with the foregoing shall constitute a material breach of this Agreement.
23. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT (INCLUDING MOBILE DEVICES), COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY PLATFORM LINKED TO IT.
YOUR USE OF THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER ONENEIGHBOR NOR ANY PERSON ASSOCIATED WITH ONENEIGHBOR MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER ONENEIGHBOR NOR ANYONE ASSOCIATED WITH ONENEIGHBOR REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
ONENEIGHBOR HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
24. Limitation on Liability
IN NO EVENT WILL ONENEIGHBOR, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PLATFORM, ANY PLATFORMS LINKED TO IT, ANY CONTENT ON THE PLATFORM OR SUCH OTHER PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR SUCH OTHER PLATFORMS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
You agree to defend, indemnify and hold harmless OneNeighbor, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of this Agreement or your use of the Platform, including, but not limited to, any use of the Platform's content, Services and products other than as expressly authorized in this Agreement or your use of any information obtained from the Platform.
26. Dispute Resolution; Arbitration of Claims
Generally, in the interest of resolving disputes between you and OneNeighbor in the most expedient and cost-effective manner, YOU AND ONENEIGHBOR MUTUALLY AGREE THAT EVERY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND ONENEIGHBOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
a. Exceptions. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
b. Arbitrator. Any arbitration between you and OneNeighbor will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting OneNeighbor.
c. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice"). OneNeighbor's address for Notice is: OneNeighbor, Inc., 9355 John W. Elliott Dr, Suite 25130, Frisco, TX 75033, Attn: Legal Department. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or OneNeighbor may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or OneNeighbor must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, OneNeighbor will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; or (ii) the last written settlement amount offered by OneNeighbor in settlement of the dispute prior to the arbitrator's award.
d. Fees. If you commence arbitration in accordance with this Agreement, OneNeighbor will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Collin County, Texas, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely based on documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse OneNeighbor for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
e. No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND ONENEIGHBOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and OneNeighbor agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permitted under applicable law.
f. Modifications to this Arbitration Provision. If OneNeighbor makes any future change to this arbitration provision, other than a change to OneNeighbor's address for Notice, you may reject the change by sending us written notice within 30 days of the change to OneNeighbor's address for Notice, in which case your account with OneNeighbor will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
g. Enforceability. If any part of this section is found to be unenforceable, then the entirety of this section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in this Agreement will govern any action arising out of or related to this Agreement. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
h. Provider Opt-Out of Arbitration. For Providers, arbitration is not a mandatory condition of this Agreement with respect to any dispute or claims brought by OneNeighbor against a Provider, or for disputes or claims brought by a Provider against OneNeighbor that: (i) are based on an alleged employment relationship between OneNeighbor and a Provider; (ii) arise out of, or relate to, OneNeighbor’s actual deactivation or suspension of a Provider account or a threat by OneNeighbor to deactivate or suspend a Provider account; (iii) arise out of, or relate to, OneNeighbor’s actual termination of a Provider’s Agreement with OneNeighbor, or a threat by OneNeighbor to terminate a Provider’s Agreement; or (iv) arise out of, or relate to, Job Fees (as defined in this Agreement, including OneNeighbor’s Use Fee or tips, other than disputes relating to referral bonuses, other OneNeighbor promotions, or consumer-type disputes (the subset of Claims in subsections (i)-(iv) shall be collectively referred to as “Provider Claims”).
If you do not want to be subject to this Dispute Resolution provision with respect to Provider Claims, you may opt out by notifying the Company in writing of your decision, by sending, within thirty (30) days of the date you receive this Agreement, an electronic mail to firstname.lastname@example.org, stating clearly your name and intent to opt out of this Dispute Resolution provision. Should you choose not to opt out of this Dispute Resolution Provision within the 30-day period, you and OneNeighbor will be bound by the terms of this Dispute Resolution Provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution Provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution Provision.
27. Governing Law; Jurisdiction
Except as set forth in Section 26 entitled "Dispute Resolution; Arbitration of Claims,” this Agreement is governed and interpreted pursuant to the laws of the State of Texas, United States of America, notwithstanding any principles of conflict of law. For all disputes, not subject to arbitration under Section 26 hereof, you agree to submit to the personal jurisdiction and venue of the courts located within Collin County, Texas, and waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
28. Waiver and Severability
No waiver by OneNeighbor of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of OneNeighbor to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
29. Entire Agreement
This Agreement may not be assigned or transferred by you without OneNeighbor's prior written consent. You agree that this Agreement and all incorporated agreements may be automatically assigned by OneNeighbor, in our sole discretion, in accordance with the "Notice" section of this Agreement.
31. No Agency
You and OneNeighbor are independent contractors, and no agency, partnership, joint venture, employer-employee, contractor-subcontractor, or franchisor-franchisee relationship is intended or created by this Agreement.