This User Agreement (this "Agreement") is a contract between you ("you" or "User") and ACHNET Inc. ("ACHNET", "we", or "us") and, to the extent expressly stated in this Agreement, our Affiliates and Payment Providers Braintree Corporation. ACHNET Inc,. ("ACHNET", "we", "us," "our") provides its services (described below) to you through its websites located at https://www.achnet.com
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 22.4. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR Business, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR Business TO THIS AGREEMENT. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT ENTITY OR Business.
Our mission is to help the world's professionals in their career progression, meeting their professional goals and achieve professional growth to allow them to be more productive and successful. Our services are designed to promote growth opportunities for our members by enabling you and millions of other professionals to meet, exchange ideas, learn, and find work opportunities, business partners or employees, find professional coaching and career counseling, and make decisions in a network of trusted relationships.
ACHNET™ - The ACHNET™ Service is designed to analyze, transmit and distribute data from your activities (including messages, data or other content that you may upload, enter or post) on the ACHNET™ web site and other social networking sites and services to create, measure and manage your personal brand, your coaching and mentoring needs, job search needs and other service needs, and your ACHNET™ Brand Score ("Brand Power™") and skills and expertise in particular areas of interest.
The ACHNET™ Service is designed to leverage data from the ACHNET web site and content you contribute to the Services (such as, but not limited to blogs, articles, your work history, personal profile, education, questions, answers, ratings, etc.) to connect individuals with other individuals, service providers and businesses to quantify your personal brand value ("Brand Power™"), find, evaluate and engage coaches and service providers, post jobs, find and manage job candidates, apply to jobs posted on the site and make suggestions and recommendation and in general make more informed decisions.
By registering for an ACHNET account on the Site (an "Account"), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement electronically, effective on the date you register your Account, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, and any amendments.
In connection with this Agreement, you may be entitled to receive certain records, such as contracts, notices, and communications, in writing. To facilitate your use of the Site, 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 Site, all records and notices for the services provided to you under this Agreement that we 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 Customer Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. 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 Account information on the Site or by contacting Customer Support.
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader version 7 or higher; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By "Current Version", we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
To use the Services, you agree that: (1) you must be the "Minimum Age" (defined below) or older; (2) you will only have one ACHNET account, which must be in your real name; and (3) you are not already restricted by ACHNET from using the Services
"Minimum Age" means (a) 18 years old for the People's Republic of China, (b) 16 years old for the Netherlands, (c) 14 years old for the United States, Canada, Germany, Spain, Australia and South Korea, and (d) 13 years old for all other countries. However, if law requires that you must be older in order for ACHNET to lawfully provide the Services to you (including the collection, storage and use of your information) then the Minimum Age is such older age. The Services are not for use by anyone under the age of 13.
To use service Provider services, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. When you register for an Account, or if you had an Account on the Effective Date, use this Site or the Site Services after the Effective Date, you also must agree to the terms of this Agreement. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to: (a) abide by this Agreement and the processes, procedures, and guidelines described on the Site; (b) be financially responsible for your use of the Site and the purchase and/or delivery of User Services; and (c) perform your obligations as specified by any Service Contract that you accept, unless such obligations are prohibited by applicable law or this Agreement. ACHNET reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates this Agreement, or for any other reason or no reason in ACHNET's sole discretion.
You represent that you are not: (x) a citizen or resident of a geographic area in which access or use of the Site is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (z) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation.
You agree to provide true, accurate, and complete information on all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You must not provide false or misleading information about your location. You must not provide false or misleading information about your business, your skills, or the services your business provides. You must not register for more than one User Account without express written permission from us (except that you may register as a Team Member of other Accounts as provided below). You must not ask or allow another person to create an Account on your behalf, for your use, or for your benefit.
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity. You authorize ACHNET, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business when requested.
You may create a business page through which other authorized Users (each, a "Team Member") may act on your behalf in the roles you assign for your business page. A user creates an Business Page on behalf of a business, which may be the user (individual) as a sole proprietor or a partnership, corporation, or other legal entity the User controls. The User that registered the Business Page may also grant certain account administration privileges for the Business Page to one or more Team Members (each, a "Business Page Administrator"). Except as otherwise required by applicable law, only the User who registered the Business Page and the Business Page Administrators can add or remove Team Members to or from the Business Page.
"Minimum Age" means (a) 18 years old for the People's Republic of China, (b) 16 years old for the Netherlands, (c) 14 years old for the United States, Canada, Germany, Spain, Australia and South Korea, and (d) 13 years old for all other countries. However, if law requires that you must be older in order for ACHNET to lawfully provide the Services to you (including the collection, storage and use of your information) then the Minimum Age is such older age. The Services are not for use by anyone under the age of 13.
Each Team Member must have an Account and a profile. Each Team Member must be a User and must be a real person or legally recognized entity. Each Team Member's Account profile must contain the Team Member's real name, and Team Members must comply with all Terms of Service. Team Members' identities will be subject to verification.
You agree to grant access to the Business Page, including with respect to any Team Members, only to Users authorized to act on your behalf and only in accordance with this Agreement. Additionally, you agree to be fully responsible and liable for any action of any Team Member and any other User who uses the Business Page, including Business Page Administrators. You represent that your Team Members have the authority to accept this Agreement on your behalf and to create a legally binding obligation on your behalf. You agree: (a) not to use any Account, Business Page, Team Member Account, username, or password of another User of the Site that you are not authorized to use, and (b) not to allow others who are not authorized to do so to use the Business Page or any related Team Member Account at any time.
Each Team Member is either an employee, an independent contractor or an authorized representative or an agent of the Business, as determined by the Business. Without limiting Business's obligations described in Section 8.2 (Responsibility for Employees and Subcontractors, Including Team Members), Business acknowledges and agrees that it assumes all liability for the classification of its Team Members as employees or independent contractors. The Business further acknowledges and agrees that the Business is responsible for paying its Team Members.
If any of your Team Members violates this Agreement, it may affect your ability to use the Site. ACHNET has the right to revoke the membership privileges of a Business and any or all Team Members related to the Business Page without warning if, in ACHNET's sole judgment, false or misleading information has been provided. Upon closure of a Business Page, ACHNET may close any or all related Accounts.
You understand and agree that Team Members profiles may display work history that includes work done under the Business, including after the Team Member is no longer a Team Member.
When you register for an Account, you will be asked to choose a username and password for the Account. As between you and others, your account belongs to you. You agree to: (1) try to choose a strong and secure password; (2) keep your password secure and confidential; (3) not transfer any part of your account (e.g., profile data, connections) and (4) follow the law and the Dos and Don'ts below. You are responsible for anything that happens through your account unless you close it or report misuse.
Note that for Premium Services purchased by another party for you to use (e.g. job posts bought by your Business Page administrator or your employer), the party paying for the Premium Service controls such an account (which is different from your personal account) and may terminate your access to it.
You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. In addition, if you are a User who owns a Business Page, or if you are a Business Page Administrator, you agree to safeguard and maintain the confidentiality of all your Business Page passwords. You authorize ACHNET to assume that any person using the Site with your username and password or your Business Page passwords, and the username of any Business Page added by a Business Page Administrator (if any) either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your account (or any related Business Page) or any unauthorized access to your password or the password of any User of your Account (or any related Business Page).
For the benefit of other Users of the marketplace, ACHNET encourages you to leave objective balanced feedback about Users with whom you have transacted. You acknowledge and agree that feedback results for you will consist of comments, ratings, and other feedback left by other Users, and that ACHNET will make available to other marketplace Users, including composite feedback based on these individual ratings. ACHNET provides its public feedback system as a means through which Users can share their opinions publicly and ACHNET does not monitor or censor these opinions. ACHNET does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that ACHNET do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory. ACHNET is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, ACHNET reserves the right (but is under no obligation) to remove posted feedback or information that in ACHNET's sole judgment violates the Terms of Service or negatively affects our marketplace community or operations.
The Site is a marketplace where Clients and Users can identify each other and buy and sell User Services online. Subject to the terms of this Agreement, ACHNET provides the Site Services to Clients and Users, including hosting and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts. If a Client and User agree on terms for User Services, a Service Contract is formed directly between such Client and User, subject to the provisions set forth in Section 5 (Contractual Relationship Between Client and User). When a User enters a Service Contract, the User uses the Site to engage, communicate, invoice and pay online.
ACHNET's partner Braintree Corporation provides escrow services to ACHNET's Clients and Users to deliver, hold, or receive payment for an Engagement, and to make payments to ACHNET ("Escrow Services"). The Escrow Services are intended for business use, so you agree to use the Escrow Services for business purposes and not for consumer, personal, family, or household purposes.
Depending on your needs and the instructions provided to ACHNET, Braintree Corporation will establish and maintain one of three different types of Escrow Accounts, subject to the applicable Escrow Agreement:
(a) Client Escrow Account: After entering into a Service Contract, the first time a Client makes a payment for an Engagement, Braintree Corporation will establish and maintain a "Client Escrow Account" to hold funds for the Client to use to make payments for Engagements, to receive refunds in connection with Engagements, and to make payments to ACHNET.
(b) Service Provider Escrow Account: After entering into a Service Contract, the first time Service Provider uses the Site to receive payment for an Engagement, Braintree Corporation will establish and maintain a "Service Provider Escrow Account" for the Service Provider to receive payments for Engagements, withdraw payments, make monthly membership payments to ACHNET, and issue refunds to Clients.
(c) Fixed-Price Escrow Account: When you enter into a Fixed-Price Contract, Braintree Corporation will establish and maintain a "Fixed-Price Escrow Account" to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Engagement that is the subject of that Service Contract.
You hereby authorize and instruct Braintree Corporation to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each Engagement and other specified purposes (the "Escrow") in accordance with this Agreement and the applicable Escrow Instructions.
You acknowledge and agree that a Service Contract is comprised of the following agreements (as applicable): (a) The Fixed-Price Escrow Instructions; (b) the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions; (c) the Engagement terms awarded and accepted on the Site to the extent that the terms do not and do not purport to expand ACHNET's obligations or restrict ACHNET's rights under this Agreement; and (d) any other contractual provisions accepted by both the Client and the Service Provider, to the extent that the provisions do not, and do not purport to, expand ACHNET's obligations or restrict ACHNET's rights under this Agreement. You acknowledge and agree that ACHNET is not a party to any Service Contracts, and that the formation of a Service Contract between a Client and a Service Provider will not, under any circumstance, create an employment or other service relationship between ACHNET and the Service Provider.
Fixed-Price Engagements: If a Client and a Service Provider choose fixed-price compensation, then the Client and Service Provider agree that they will be bound by, and Braintree Corporation will follow, the Fixed-Price Escrow Instructions.
Hourly Engagements, Bonus Payments, or Expense Payments: If a Client and a Service Provider choose hourly compensation, and/or if the Client makes bonus or expense payments to the Service Provider, then the Client and Service Provider agree that they will be bound by, and Braintree Corporation will follow, the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
When a Client pays a Service Provider or when funds related to an Engagement are otherwise released to a Service Provider as required by the applicable Escrow Instructions, Braintree Corporation will credit the Service Provider Escrow Account and then deduct and disburse to ACHNET a 10% service fee that ACHNET earns and Service Provider agrees to pay ACHNET for creating, hosting, maintaining, and providing the Site and Site Services (the "Service Fee"). If Service Provider elects disbursement in foreign currency, Braintree Corporation will add ACHNET's conversion fee of 1.5% to the spot rate quoted by its foreign exchange vendor and credit that amount to ACHNET.
To the extent the Services or any portion thereof is made available for any fee, you may be required to select a payment plan and provide ACHNET™ information regarding your credit card or other payment instrument. You represent and warrant to ACHNET™ that such information is true and that you are authorized to use the payment instrument. We reserve the right to change ACHNET's prices at any time.
Users will subscribe to different levels of participation and privileges on the Site, by payment of subscription fees as described here, as may be revised from time to time upon such notice as may be appropriate, and subject to the User Membership Policy.
If you purchase any of our paid Services ("Premium Services"), you agree to pay us the applicable fees and taxes. Failure to pay these fees may result in the termination of your subscription. Also:
For ACHNET, you can get a copy of your invoice through your account settings under "Payment History"
ACHNET does not introduce Clients to Service Providers and does not help Service Providers secure Engagements. ACHNET merely makes the Site Services available to enable Service Providers to do so themselves. Therefore, ACHNET does not charge a fee when a Service Provider finds a suitable Client or finds an Engagement. However, Client and a Service Provider are obligated to use the Site to pay and receive payment for their work together if they identified each other through the Site, as detailed in Section 7 (Non-Circumvention), below.
Under the relevant Escrow Instructions, Braintree Corporation automatically disburses funds that are payable to Service Provider for the Engagement (less any applicable ACHNET fees) to Service Providers (according to the payment instructions provided to ACHNET) within 90 days after the Service Provider Fees are due and payable from Client (or for amounts less than $100, within 180 days after the Service Provider Fees are due and payable from Client). Service Provider agrees that it will not receive interest or other earnings on the funds held by Braintree Corporation prior to disbursement to Service Provider. For the avoidance of doubt, Service Provider further agrees Braintree Corporation, ACHNET, or our Affiliates may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation from financial services firms and other third parties in connection with the services they provide.
For Hourly Contracts, funds become payable to Service Providers following the expiration of the dispute period and the security period. For Fixed-Price Contracts, the Service Provider Fees become payable to Service Providers following the expiration of the security period. The security period begins after Client accepts work submitted by Service Provider by clicking the Make a Payment button. ACHNET and Braintree Corporation may in their sole discretion, deviate from the typical billing cycle for Hourly Contracts and charge Client for any and all Time Logs at any time. To the extent the Escrow Instructions are inconsistent with this paragraph, the Escrow Instructions govern.
Notwithstanding any other provision of this Agreement or the Escrow Instructions, and except as prohibited by applicable law, if we determine in our sole discretion that you have violated the conditions and restrictions of the Site or this Agreement, Braintree Corporation may hold the disbursement of the Service Provider Fees. Additionally, Braintree Corporation may also hold the disbursement of the Service Provider Fees if: (a) we require additional information, such as Service Provider's tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the Service Provider Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under a Service Contract, this Agreement, or other Terms of Service; (e) we deem necessary in connection with any investigation; or (f) required by applicable law.
In cases of fraud, abuse, or violation of this Agreement, ACHNET reserves the right to revoke any payments and instruct Braintree Corporation to (and Braintree Corporation will have the right to) hold and/or reclaim from Braintree Corporation all Service Provider Fees due to Service Provider (not just the Service Provider Fees from the Service Contract(s) under investigation) unless prohibited by applicable law. In addition, we reserve the right to seek reimbursement from you, and you will reimburse us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or Engagement; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Service Provider. You agree that we have the right to obtain such reimbursement by instructing Braintree Corporation to (and Braintree Corporation will have the right to) charge an applicable Escrow Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of the applicable Escrow Account.
If Client fails to pay the User Fees or any other amounts due under this Agreement, whether by cancelling Client's credit or debit card, initiating an improper chargeback, or any other means, ACHNET may suspend or close Client's Account and revoke Client's access to the Site, including Client's authority to use the Site to process any additional payments or obtain any additional Service Provider Services. Without limiting other available remedies, Client must pay ACHNET upon demand for amounts owed under this Agreement, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys' fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, ACHNET or Braintree Corporation, at our discretion, may set off amounts due against other amounts received from or held by ACHNET or Braintree Corporation for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
Generally, all fees and charges are nonrefundable and there are no refunds or credits for partially used periods. Except as noted here, all paid products including Premium Account subscriptions, Ads or Job postings are nonrefundable after purchase and delivery.
An exception we may consider is providing a refund when we've updated your payment information and there are good reasons to believe that you did not intend for an update to be made.
Also, under the laws applicable in your jurisdiction, Premium Account subscribers may qualify for a refund if requested during a short period of time after the beginning of the subscription. For example, citizens of the European Union are entitled to a full refund during the 14 days after the subscription begins. Please note that this 14 day period commences when the subscription service starts, which in the event of free trial promotions happens before you are first charged, and so there may be no fees paid to be refunded.
All of your Premium features expire as soon as your cancellation takes effect at the end of your current billing cycle, so make sure you use all your premium features before your account is canceled.
For Service Provider engagements, Client acknowledges and agrees that Braintree Corporation will charge Client's designated Payment Method for the Service Provider Fees: (a) for Fixed-Price Contracts, upon Client's acceptance of the Service Provider Services, and (b) for Hourly Contracts, on the Monday after the week in which work was performed. Therefore, and in consideration of the Site Services provided by ACHNET and the Escrow Services provided by Braintree Corporation, Client agrees that once Braintree Corporation charges Client's designated Payment Method for the Service Provider Fees as provided in this Agreement, the charge is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that this Agreement provides a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Service Provider Fees, Subscription Fees or other Fees charged pursuant to this Agreement for any reason. A chargeback in breach of the foregoing obligation is a material breach of this Agreement. If Client initiates a chargeback in violation of this Agreement, Client agrees that ACHNET or Braintree Corporation may dispute or appeal the chargeback and institute collection action against Client.
ACHNET will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Service Provider Fees. Service Provider will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Service Provider Fees and for issuing any invoices so required. Service Provider will also be solely responsible for determining whether: (a) User or ACHNET is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Service Provider Fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or ACHNET, as appropriate; and (b) ACHNET is required by applicable law to withhold any amount of the Service Provider Fees and for notifying ACHNET of any such requirement and indemnifying ACHNET (either by ACHNET, at our sole discretion, offsetting the relevant amount against a future payment of Service Provider Fees to User or User reimbursing ACHNET for the applicable amount) for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of ACHNET, Service Provider agrees to promptly cooperate with ACHNET and provide copies of Service Provider's tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Service Provider is engaging in an independent business as represented to ACHNET.
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method. The Site makes the following methods of payment available: credit cards, in some cases bank accounts, PayPal, and such other methods of payment as ACHNET may accept from time to time in our sole discretion.
Client hereby authorizes ACHNET and Braintree Corporation and any other payment services provider that ACHNET may engage from time to time, to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client's method of payment for Services, and to charge Client's credit card (or any other Payment Method). Credit cards and PayPal accounts and, if applicable, bank accounts in most countries will be charged by Braintree Corporation. When Client authorizes the payment of the Service Provider Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Braintree Corporation or Braintree Corporation to charge Client's Payment Method for the Service Provider Fees. When Client approves or is deemed to have approved a Time Log for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Braintree Corporation or ACHNET's current payment services provider to charge Client's Payment Method for the Service Provider Fees.
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information to us; (b) Client is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client's use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement cannot be collected from Client's Payment Method(s), Client is solely responsible for paying such amounts by other means.
The Site and the Site Services operate in US Dollars. If Client's Payment Method is denominated in a currency other than US Dollars and requires currency conversion to pay the Escrow or other payments in US Dollars, the Site may display foreign currency conversion rates ACHNET, Braintree Corporation or other Affiliates currently make available to convert supported foreign currencies to US Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Client, at its sole discretion and risk, may authorize the charge of its Payment Method in a supported foreign currency and the conversion of the payment to US Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies is available here. If foreign currency conversion is required to make a payment in US Dollars and either ACHNET, Braintree Corporation, or another Affiliate does not support the foreign currency or Client does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, Braintree Corporation or an Affiliate will charge Client's Payment Method in US Dollars and Client's Payment Method provider will convert the payment at a foreign currency conversion rate selected by Client's Payment Method provider. Client's Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency conversion is involved. Client's authorization of a payment using a foreign currency conversion rate displayed on the Site is at Client's sole risk. We are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than US Dollars. We are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse to and from the Escrow Account.
You acknowledge and agree that a substantial portion of the compensation ACHNET receives for making the Site available to you is collected as a deduction of the Service Fee described in Section 6.1 ("Service Fee"). ACHNET only deducts this Service Fee when a Client and a Service Provider pay and receive payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site (the "Non-Circumvention Period"), you must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the "ACHNET Relationship").
You agree to notify ACHNET immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to ACHNET by sending an email message to: email@example.com.
Unless otherwise agreed to in a writing signed by both Client and Service Provider, the default terms and conditions of the Service Contract that a Service Provider enters directly with a Client when the Service Provider agrees to provide User Services to the Client are as set forth in this Section 8, Sections 9 through 13, and the other agreements referenced in Section 5.1 (Service Contracts). Client and User may agree between them on any additional or different terms for their Service Contract as long as such terms do not affect the rights or responsibilities of ACHNET or violate the Terms of Service. ACHNET is not a party to any Service Contract by or between Users, except as a third-party beneficiary as described further below.
Service Provider will perform the Service Provider Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Services will be determined and controlled by Service Provider.
Work billed for Hourly Contracts under a Service Provider's Account must be performed by the Service Provider that has the Account. With a Business Page, the Business may bill for hourly work done by Team Members.
If a Service Provider wishes to subcontract with or employ third parties to perform the Services on behalf of the Service Provider for any Engagement, the Service Provider represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. As used in this Agreement, the term "Delegee" refers to any employee, independent contractor, or agent of a Service Provider, including a Team Member, that the Service Provider engages to perform any work under a Service Contract. Regardless of whether a Service Provider has Delegees, the Service Provider remains responsible for all services performed under the Service Provider's Service Contracts, including ensuring that the services comply with the Terms of Service (including confidentiality and intellectual property obligations). Each Business specifically acknowledges and agrees that Team Members have the authority to bind Business to Service Contracts entered into by Team Members on behalf of the Business.
Service Provider, Business, Delegee, and Client acknowledge and agree that Delegees are not employees, independent contractors or agents of ACHNET or Client. Business, Delegee, and Service Provider represent, warrant, and covenant that: (a) Business and, if applicable, each other Service Provider is solely responsible for all payments, obligations, wages, costs, unemployment insurance, workers' compensation insurance, contributions, and expenses of Delegees; (b) neither ACHNET nor Client has the right or power to supervise or control Delegees; and (c) no Delegees of any Business or other Service Provider will have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from ACHNET or Client.
With respect to Delegees, ACHNET merely provides the platform for Business or Service Provider to communicate and share information with Clients and, if they are Service Providers, with Delegees. Business, Delegee, and Service Provider understand and agree that the contract terms, pay rate, work hours, service dates and working conditions will be established by the Business, Service Provider, and/or Client and not by ACHNET. Business, Delegee, and Service Provider acknowledge and agree that Delegees are not employees or independent contractors of ACHNET, and further acknowledge and agree that they will not be providing any services to ACHNET (directly or indirectly) while employed or engaged by the Business or another Service Provider.
Business, Delegee, and Service Provider acknowledge and agree that ACHNET does not, in any way, supervise, direct, or control Delegees; ACHNET does not set Delegees' contract terms (including determining whether the contract will be set at an hourly or fixed fee), fees, rates, work hours, work schedules, or location of work; ACHNET will not provide Delegees with training or any equipment, labor, or materials needed for a particular Service Contract; and ACHNET does not provide the premises at which the Delegees will perform the work.
For Hourly Contracts, Client is billed for Service Provider Fees on a weekly basis. For Fixed-Price Contracts, Client is billed immediately upon sending an offer.
With respect to disputes arising between Clients and Service Provider, you agree to abide by the Dispute Resolution Policy as stated in the Escrow Instructions that apply to your particular Service Contract.
Under Hourly Contracts, either Client or Service Provider has the right to terminate the Service Contract after providing any required notice, or immediately on the end date specified in the Service Contract terms and/or upon completion of the Service Provider Services, in the event of a material breach, or with the consent of the other party. Except as required by law, Client remains obligated to pay the Service Provider Fees for any Service Provider Services provided prior to termination of the Hourly Contract.
Under Fixed-Price Contracts, once a Client's Payment Method has been charged to fund the escrow account for the Engagement, absent a full refund to Client by Service Provider, the Service Contract does not terminate until the Service Provider Services are completed. However, either Client or Service Provider has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated, Client does not have the right to recover any payments already released to Service Provider from the escrow account for the Engagement.
Certain Defined Terms:
User will disclose in the Engagement Terms any Background Intellectual Property which Service Provider proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. Service Provider will separately provide, with each delivery of Work Product to Client, a third-party bill of materials that identifies all Background Intellectual Property and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Intellectual Property identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Service Provider, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement Terms, Service Provider agrees that it will not incorporate into Work Product or otherwise deliver to Client any intellectual property or software code for which the use or distribution of the work product will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in digital or non-digital form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
Upon User's receipt of payment from Client, User hereby automatically grants to Client a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product.
Client grants Service Provider a limited, non-exclusive, revocable (at any time, at Client's sole discretion) right to use the Client Materials as necessary solely for the performance of the Service Provider Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client's written request, Service Provider will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables (except for Background Intellectual Property as permitted by the Service Contract) contained in or on Service Provider's premises, systems, or any other equipment or location otherwise under Service Provider's control. Within ten days of such request from Client, Service Provider agrees to provide written certification to Client that Service Provider has returned or destroyed all Client Materials and Work Product as provided in this subsection.
Upon User's receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. If Service Provider has any Intellectual Property Rights to the Work Product that are not owned by Client upon Service Provider's receipt of payment from Client, Service Provider hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Service Provider retains no rights to use, and will not challenge the validity of Client's ownership in, such Intellectual Property Rights. Service Provider hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product.
Client assumes all liability for determining whether Service Providers are independent contractors or employees and engaging them accordingly; ACHNET disclaims any liability for such determination or the related Engagement. This Agreement does not create a partnership or Business relationship between Client and Service Provider. Service Provider does not have authority to enter into written or oral (whether implied or express) contracts on behalf of ACHNET. For Service Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Service Provider. A Service Provider classified as an independent contractor is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client.
Client and Service Provider will each (1) create and maintain records to document satisfaction of their respective obligations under this Agreement; any Service Contract, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (2) provide copies of such records to ACHNET upon request. Nothing in this subsection requires or will be construed as requiring ACHNET to supervise or monitor a Service Provider's compliance with this Agreement, the other Terms of Service, or a Service Contract.
ACHNET is not a party to the dealings between Client and Service Provider, including posts, proposals, screening selection, contracting, and performance of Service Provider Services. ACHNET does not introduce Service Provider to Clients or help Service Provider find Engagements. ACHNET merely makes the Site Services available to enable Service Provider to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Service Provider for themselves. ACHNET does not, in any way, supervise, direct, or control Service Provider or Service Provider's work. ACHNET does not set Service Provider's work hours, work schedules, or location of work, nor is ACHNET involved in determining if the Service Provider Fees will be set at an hourly or fixed rate for a Service Contract. ACHNET will not provide Service Provider with training or any equipment, labor, or materials needed for a particular Service Contract. ACHNET does not provide the premises at which the Service Provider will perform the work. ACHNET makes no representations about, and does not guarantee the quality, safety, or legality of the Service Provider Services; the truth or accuracy of Service Provider's listings on the Site; the qualifications, background, or identities of Service Providers; the ability of Service Providers to deliver their Services; the ability of Clients to pay for the Service Provider Services; or that a Client or Service Provider can or will actually complete a transaction.
ACHNET does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Client or Service Provider, each of which is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority in any nation with respect to Service Provider's performance, and Client's acceptance, of Service Provider Services.
ACHNET is not required to and may not verify any feedback or information given to us by Service Provider or Clients. ACHNET may or may not perform background checks on Service Provider or Clients.
You hereby acknowledge and agree that ACHNET may provide information on the Site about a Service Provider or Client, such as feedback, composite feedback, including a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that Service Provider or Clients voluntarily submit to ACHNET and does not constitute and will not be construed as an introduction, endorsement, or recommendation by ACHNET; ACHNET provides such information solely for the convenience of Service Providers.
Client and Service Provider appoint ACHNET as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, ACHNET hereunder. For example, Section 5.1(c) and Section 5.1(d) of this Agreement prohibit certain terms in any Service Contract and ACHNET is hereby made a third-party beneficiary for purposes of enforcing such prohibitions. Client and Service Provider further agree that ACHNET has the right to take such actions with respect to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts.
This Agreement and any Account registration will not be construed as creating or implying any relationship of Business, franchise, partnership, or joint venture between Service Providers and ACHNET, except and solely to the extent expressly stated in this Agreement.
Service Contracts by and between Service Provider and Client will be governed by Sections 8 (Service Contract Terms), 9 (Records of Compliance), 10 (Relationship with ACHNET), 11 (Third-Party Beneficiary), 12 (General – Service Contracts), 15 (Confidential Information), 23 (General) and 24 (Definitions) of this Agreement, as applicable, either directly or by way of analogy.
The terms and conditions set forth in this Section 12 (General – Service Contracts) and any additional or different terms expressly agreed by Client and/or Service Provider will constitute the entire agreement and understanding of Client and Service Provider with respect to each Service Contract and will cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Service Provider may act as Clients and/or Service Provider; (b) ACHNET is not a party to any Service Contracts between Clients and Service Provider; (c) you are not an employee of ACHNET, and ACHNET does not, in any way, supervise, direct, or control the Service Provider or Service Provider Services; (d) ACHNET will not have any liability or obligations under or related to Service Contracts or any acts or omissions by you or other Service Provider; (e) ACHNET has no control over Service Provider or the Service Provider Services offered or rendered by Service Provider; and (f) ACHNET makes no representations as to the reliability, capability, or qualifications of any Service Provider or the quality, security, or legality of any Service Provider Services, and ACHNET disclaims any and all liability relating thereto.
Subject to and conditioned on compliance with this Agreement, ACHNET grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services. You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available. You agree not to use the Site or Site Services for offering any goods or services other than Service Provider Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without ACHNET's prior written consent. You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing without ACHNET's prior written consent. You must not frame or link to the Site or Site Services except as permitted in writing by ACHNET. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services. ACHNET and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The ACHNET™ name and logos are trademarks and service marks of ACHNET™ (collectively the "ACHNET™ Trademarks"). Other ACHNET™, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to ACHNET™. Nothing in this Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of ACHNET™ Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of ACHNET™ Trademarks will inure to our exclusive benefit. Any permitted use of the ACHNET™ Trademarks must be in accordance with our policies.
Our Services allow messaging and sharing of information in many ways, such as your profile, status updates, links to news articles, job postings, messages, videos, testimonials and blogs. Information and content that you share or post may be seen by other Members or, if public, by Visitors. Where we have made settings available, we will honor the choices you make about who can see content or information (e.g., sharing to a group or individual instead of your network, limiting your profile visibility). Note that other activities, such as applying for a job or sending a message, are by default private, only visible to the addressee(s).
We are not obligated to publish any information or content on our Service and can remove it in our sole discretion, with or without notice.
When you post User Content on the Site or through the Site Services or provide ACHNET with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below. You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that ACHNET may exercise the rights to your User Content granted under this Agreement without any liability or obligation for any payment.
We will get your consent if we want to give others the right to publish your posts beyond the Service. However, other Members and/or Visitors may access and share your content and information, consistent with your settings and degree of connection with them.
While we may edit and make formatting changes to your content (such as translating it, modifying the size, layout or file type or removing metadata), we will not modify the meaning of your expression.
Because you own your content and information and we only have non-exclusive rights to it, you may choose to make it available to others, including under the terms of a Creative Commons license.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant ACHNET and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
You agree to only provide content or information if that does not violate the law nor anyone's rights (e.g., without violating any intellectual property rights or breaching a contract). You also agree that your profile information will be truthful. ACHNET may be required by law to remove certain information or content in certain countries.
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, "Ideas"). By submitting any Ideas, you agree that: (a) your disclosure is gratuitous, unsolicited, and without restriction and will not place ACHNET under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, ACHNET does not waive any rights to use similar or related ideas known or developed by ACHNET or obtained from sources other than you.
The Site contains robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site's infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of ACHNET and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of ACHNET or any third party.
The Site makes available various services provided by third parties to verify a User's credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of ACHNET. ACHNET neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than ACHNET's authorized employees acting in their official capacities.
In addition, ACHNET™ is not responsible for the accuracy, availability or reliability of any information, data, content, goods, opinions, advice or statements made available in connection with Social Media Services. As such, ACHNET™ is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Media Services. The integration or inclusion of such features does not imply an endorsement or recommendation of any particular Social Media Service.
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that ACHNET is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an "as is" and "as available" basis without any warranty for any purpose.
When using our mobile applications or accessing the websites of ACHNET and its affiliates using mobile devices, please be aware that your carrier's normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications and web sites may not contain the same functionality available on the Site.
We may from time to time in our sole discretion develop and provide Site Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree that Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of this Agreement, unless otherwise provided in terms associated with such Update. ACHNET reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree ACHNET will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
We reserve the right at any time, with or without notice to you, to (a) modify our algorithms, and (b) modify or discontinue, temporarily or permanently, the Services (or any part thereof). You acknowledge that such modifications to our algorithms and the Services may result in changes to your ACHNET™ Score and other ACHNET™ Data. You agree that ACHNET™ will not be liable to you or to any third party for any modification of our algorithms or ACHNET™ Data, or any modification, suspension or discontinuance of the Services.
You agree that we may provide notices to you in the following ways: (1) a banner notice on the Service, or (2) an email sent to an address you provided, or (3) through other means including mobile number, telephone, or mail. You agree to keep your contact information up to date.
Please review your https://www.achnet.com settings to control and limit what kind of messages you receive from us.
We may change, suspend or end any Service, or change and modify prices prospectively in our discretion. To the extent allowed under law, these changes may be effective upon notice provided to you.
ACHNET reserves the right to limit your use of the Services, including the number of your connections, your ability to contact other Users, number and type of profiles you can create and number and duration of jobs you can post. ACHNET reserves the right to restrict, suspend, or terminate your account if ACHNET believes that you may be in breach of this Agreement or law or are misusing the Services (e.g. violating any Do and Don'ts).
ACHNET reserves all of its intellectual property rights in the Services. For example, ACHNET, Brand Score, Power Bio, Social Power, Power Connect, logos and other ACHNET trademarks, service marks, graphics, and logos used in connection with ACHNET are trademarks or registered trademarks of ACHNET. Other trademarks and logos used in connection with the Services may be the trademarks of their respective owners.
To the extent a User, Client or Service Provider provides Confidential Information to the other, the recipient will protect the secrecy of the discloser's Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another's Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another's Confidential Information, except as necessary for the performance of Service Provider Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by Service Provider); and (c) limit access to another's Confidential Information to its personnel who need to know such information for the performance of Service Provider Services.
If and when Confidential Information is no longer needed for the performance of the Service Provider Services for a Services Contract or at Client's or Service Provider's written request (which may be made at any time at Client's or Service Provider's sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party's Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party's written request for such certification.
Without limiting Section 15.1 (Confidentiality), Service Providers, User, and ACHNET will not publish, or cause to be published, any other party's Confidential Information or Work Product, except as may be necessary for performance of User Services for a Services Contract.
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. ACHNET MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACHNET DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 21 (TERM AND TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST ACHNET WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
ACHNET is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to:
ADDITIONALLY, IN NO EVENT WILL ACHNET, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF ACHNET, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY ACHNET WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR SERVICE PROVIDER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You are solely responsible for all video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials ("content") that you upload, share, post, publish, display or otherwise transmit (hereinafter, "transmit") or email or otherwise use via the Services. The following are examples of the kind of content and/or use that is illegal or prohibited by ACHNET™. ACHNET™ reserves the right to investigate and take appropriate legal action against anyone who, in ACHNET™'s sole discretion, violates this provision, including without limitation, removing the offending content from the Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
In addition to the recognition that ACHNET is not a party to any contract between Client and Service Provider, you hereby release ACHNET, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Service Provider Services provided to Client by a Service Provider and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in subsection 8.4 (Dispute Resolution).
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."
This release will not apply to a claim that ACHNET failed to meet our obligations under this Agreement.
You will indemnify, defend, and hold harmless ACHNET, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an "Indemnified Party") from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a User as an independent contractor; the classification of ACHNET as an employer or joint employer of User; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with this Agreement by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents.
This Agreement, as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services. Unless both you and ACHNET expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other. You may provide written notice to firstname.lastname@example.org. In the event you properly terminate this Agreement, your right to use the Site is automatically revoked, and your Account will be closed; however, (a) if you have any open Engagements when you terminate this Agreement, you will continue to be bound by this Agreement until all such Engagements have closed on the Site; (b) ACHNET will continue to perform those Site Services necessary to complete any open Engagement or related transaction between you and another User; and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to ACHNET for any Site Services and to any Service Provider for any Service Provider Services. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you, any Service Provider with whom you have entered into a Service Contract, or ACHNET from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.
Without limiting ACHNET's other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or ACHNET or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. If your Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without ACHNET's prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
Without limiting ACHNET's other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed ACHNET or our Affiliates under this Agreement, you must pay ACHNET for all fees owed to ACHNET and our Affiliates and reimburse ACHNET for all losses and costs (including any and all time of ACHNET's employees) and reasonable expenses (including attorneys' fees) related to investigating such breach and collecting such fees. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, ACHNET will retain this information along with all your previous posts and proposals for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which ACHNET will have no liability whatsoever.
ACHNET has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service or violated our rights or those of another party. Without limiting ACHNET's other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights to reclaim funds, and refuse to provide any further access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, other Users, or ACHNET.
Termination of this Agreement and/or closing of your Account will not relieve Client of the requirement to pay for Service Provider Services performed prior to the effective date of the termination or thereafter for any Service Contracts executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Client hereby authorizes ACHNET to charge to its Payment Method pursuant to Section 6 (Payment Terms). Subject to the applicable Dispute Resolution Policies, ACHNET will pay Service Provider, in accordance with the provisions of Section 6 (Payment Terms) for all time recorded in the Time Logs incurred prior to the effective date of the termination or thereafter for any Service Contracts executed before termination of this Agreement.
Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User's Account status to all Users, including both yourself and other Service Provider who have entered into Service Contracts with you. You therefore agree as follows: IF ACHNET DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, ACHNET HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
For disputes arising between Clients and Service Provider, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract.
If a dispute arises between you and ACHNET or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, ACHNET, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, your relationship with ACHNET (including any claimed employment with ACHNET or one of its Affiliates or successors), the termination of your relationship with ACHNET, or the Site Services (each, a "Claim") in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from ACHNET or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in any state, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with ACHNET or the termination of that relationship. Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision.
You agree that any Claim must be resolved as described in the subsections below titled "Informal Dispute Resolution" and "Mandatory Binding Arbitration and Class Action/Jury Trial Waiver."
This Agreement and any Claim will be governed by, construed and enforced in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG); provided, however, that any Claims made by any User located within the United States will be governed by the law of the state in which such User resides.
Before serving a demand for arbitration of a Claim, you agree to first notify ACHNET of the Claim at Attn: Legal, 10161 Park Run Dr. #150 Las Vegas, NV 89145; or by email to email@example.com, and ACHNET agrees to provide to you a notice at your email address on file (in each case, a "Notice") and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from ACHNET must include pertinent account information, a brief description of the Claim, and ACHNET's contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and ACHNET will have 60 days from the date of the receipt of the Notice to informally resolve the other party's Claim, which, if successful, will avoid the need for further action.
This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision ("Arbitration Provision") applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, ACHNET, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com.
A. Scope of Arbitration Agreement and Conduct of Arbitration
Arbitration as provided in this Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision ("Arbitration Provision") is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any Claim the parties may have and survives after your relationship with ACHNET ends. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Clark County, Nevada in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS. Notwithstanding the foregoing, any Claims by Users that allege employment or worker classification claims will be conducted within 25 miles of where the User is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The JAMS arbitration rules may be found at www.jamsadr.com or by searching online for "JAMS Comprehensive Arbitration Rules and Procedures" or "JAMS Employment Arbitration Rules." The parties agree that any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and ACHNET will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator's decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between the Company and you to which you are a party that is or was already pending in a state or federal court before the expiration of your opt-out period. This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Either you or ACHNET may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter.
Regardless of any other terms of this Arbitration Provision, a claim may be brought by or to, and remedies awarded by, an administrative Business if applicable law permits the Business to adjudicate, investigate or prosecute the claim notwithstanding the existence of this agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, or the National Labor Relations Board. Nothing in this Arbitration Provision will be deemed to preclude or excuse a party from bringing an administrative claim before any Business in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration, if any.
B. Interpretation and Enforcement of this Arbitration Provision
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and ACHNET agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
C. Class Action and Jury Trial Waiver
This arbitration provision affects your ability to participate in class, collective or representative actions. Both you and ACHNET agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding ("Class Action Waiver"). The Class Action Waiver does not prevent you from bringing a Claim in arbitration as a private attorney general solely on your own behalf and not on behalf of others. Notwithstanding any other portion of this Arbitration Provision or the JAMS Rules, the arbitrator will have authority to hear any Claim on a class, collective, or representative basis if, only if, and only to the extent that, the arbitrator determines that the waiver of such class, collective, or representative Claim is unenforceable. You and ACHNET agree that you will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights under Section 7 of the National Labor Relations Act by filing or participating in a class, collective or representative action in any forum. However, ACHNET may lawfully seek enforcement of this arbitration provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims.
D. Right to Opt Out of Arbitration and Class Action/Jury Trial Waiver.
You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying ACHNET in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to ACHNET at 10161 Park Run Dr. #150 Las Vegas, NV 89145
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and ACHNET relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in this Agreement are included for ease of reference only and have no binding effect. Even though ACHNET drafted this Agreement, you represent that you had ample time to review and decide whether to agree to the terms of this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof will arise favoring or disfavoring you or ACHNET because of the authorship of any provision of this Agreement.
Notwithstanding subsection 23.1 (Entire Agreement), Clients and Service Providers may enter into any supplemental or other written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand ACHNET's obligations or restrict ACHNET's rights under this Agreement.
User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties' Intellectual Property Rights.
No modification or amendment to this Agreement will be binding upon ACHNET unless in a written instrument signed by a duly authorized representative of ACHNET. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 23.4 (Modifications) does not apply to amendments to this Agreement posted by ACHNET to the Site from time to time.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
User may not assign this Agreement, or any of its rights or obligations hereunder, without ACHNET's prior written consent in the form of a written instrument signed by a duly authorized representative of ACHNET (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). ACHNET may freely assign this Agreement without User's consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Agreement will terminate.
The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States. ACHNET makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
All notices to ACHNET or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Attn: Legal, 10161 Park Run Dr. #150 Las Vegas, NV 89145; or (c) in writing via email to firstname.lastname@example.org. All such notices are deemed effective upon receipt by ACHNET. ACHNET does not accept service of any legal process by email or mail; all such service should occur by hand delivery on ACHNET or its registered agent for service of process.
"Affiliate" means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with ACHNET.
"Client" means any authorized User utilizing the Site to seek and/or obtain Services from another Service Provider. From time to time, ACHNET may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to ACHNET when ACHNET acts in this way.
"Client Deliverables" means requests, intellectual property, and any other information or materials that a User receives from a Client to perform User Services.
"Confidential Information" means Client Deliverables, Service Provider Deliverables, Work Product, and any other information provided to, or created by, a Service Provider for a Service Contract or to perform or assist in performing User Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of User or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party's obligations of confidentiality; or (d) was independently developed by User without use of another person's Confidential Information.
"Fixed-Price Contract" means a Service Contract for which Client is charged a fixed fee agreed between a Client and a User, prior to the commencement of a Service Contract, for the completion of all User Services contracted by Client for such Service Contract.
"Engagement" means an engagement for User Services that a Service Provider provides to a Client under a Service Contract on the Site.
"Escrow Account" means Client Escrow Account, Service Provider Escrow Account, or Fixed-Price Escrow Account.
"Escrow Instructions" means the Fixed-Price Escrow Instructions, the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions, or the Fixed-Price Mobile Escrow Instructions.
"User" means any authorized User utilizing the Site.
"Service Provider" means any authorized user utilizing the site to advertise and provide Services to Clients.
"User Deliverables" means requests, intellectual property, and any other information or materials that a Client receives from a Service Provider for a particular Service Contract.
"User Fees" means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by User in the Time Logs, multiplied by the hourly rate set by the User; (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Service Provider; and (c) any bonuses or other payments made by a Client.
"Subscription Fees" means the fee agreed between a User and ACHNET for usage of ACHNET's site, services and features.
"User Services" means all services performed for or delivered to Clients by Users.
"Hourly Contract" means a Service Contract for which Client is charged based on the hourly rate set by the User.
"Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
"Payment Method" means a valid credit card issued by a bank acceptable to ACHNET, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as ACHNET may accept from time to time in our sole discretion.
"Service Contract" means, as applicable, (a) the contractual provisions between a Client and a Service Provider governing the Service Provider Services to be performed by a Service Provider for Client for an Engagement; and, the additional agreements referenced in Section 5.1 (Service Contracts).
"Site Services" means all services that are accessible through the Site.
"Substantial Change" means a change to the terms of this Agreement that reduces your rights or increases your responsibilities.
"Time Logs" means the report of hours recorded for a stated period by a Service Provider for the Service Provider Services performed for a Client.
"Work Product" means any tangible or intangible results or deliverables that Service Provider agrees to create for, or actually delivers to, Client as a result of performing the Service Provider Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
"User Content" means any data, feedback, content, text, photographs, images, video, music, or other information that you post to any part of the Site or provide to ACHNET.
ACHNET respects the intellectual property rights of others and desires to offer a platform which contains no content that violates those rights. Our User Agreement requires that information posted by Members be accurate, lawful and not in violation of the rights of third parties. To promote these objectives, ACHNET provides a process for submission of complaints concerning content posted by our Members. Our policy and procedures are described and/or referenced in the sections that follow.
Please note that whether or not we disable access to or remove content, ACHNET may make a good faith attempt to forward the written notification, including the complainant's contact information, to the Member who posted the content and/or take other reasonable steps to notify the Member that ACHNET has received notice of an alleged violation of intellectual property rights or other content violation. It is also our policy, in appropriate circumstances and in our discretion, to disable and/or terminate the accounts of Members, or groups as the case may be, who infringe or repeatedly infringe the rights of others or otherwise post unlawful content.
Please note that any notice or counter-notice you submit must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice or a counter-notice.
Notice of Copyright Infringement:
Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512), ACHNET has implemented procedures for receiving written notification of claimed infringements. ACHNET has also designated an agent to receive notices of claimed copyright infringement. If you believe in good faith that your copyright has been infringed, you may complete and submit a written communication which contains:
Please submit your notice to ACHNET Inc's Copyright Agent as follows:
Email us at email@example.com
Or contact us by mail at:ACHNET Inc
If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a Counter-Notice, pursuant to Sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. You may provide a written communication which contains:
Please submit your Counter-Notice to ACHNET's Copyright Agent via email to firstname.lastname@example.org mail to the address specified above.
In accordance with the DMCA and other applicable law, ACHNET™ has adopted a policy of terminating, in appropriate circumstances and at ACHNET™'s sole discretion, users who are deemed to be repeat infringers. ACHNET™ may also at its sole discretion limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.