Last Revised: December 2015
Welcome to PROPASSIONAL.
PROFESSIONAL, Inc. (“PROPASSIONAL,” “we” or “us”) provides a mobile application platform (the “App”) that connects talents seeking a job opportunity (“Propassionals”) with those offering an opportunity for hire (“Opportunities”). Our App also provides Opportunities with access to direct booking from matched and compatible talents (“Xlancing”).
Use of Website.
PROFESSIONAL owns the PROFESSIONAL.COM website (the “Site”) and the App (collectively, the Site and the App are referred to as the “Services”). These Terms of Service and Use (“Agreement”) apply to your use of the Site and the App. Your use of the Site or the App constitutes assent to this Agreement.
Use of App and Site.
If you are a Propassional or Opportunity, this Agreement constitutes a binding contract between you and PROFESSIONAL governing your use of the App and the Site. If you are a Ppropassional, you represent that you are legally old enough and permitted to work in your region; otherwise, you are not eligible to use the App. If you are accepting this Agreement for an entity, such as the company you work for, you represent to us that you have the authority to legally bind that entity to this Agreement. By clicking on the “I ACCEPT” button, or using our App, you signify that you have read, understand and agree to be bound by all of the terms in this Agreement. If you do not agree, you may not use PROFESSIONAL’s Site or App, and you should cancel setup of the App and delete it from your device.
These Terms of Service (this “Agreement”) is a contract between you (“you”) and PROPASSIONAL, Inc., a California corporation (“PROPASSIONAL”, “we” or “us”). You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our app and website located at www.propassional.com (the “Site”) and related software and services (collectively, the “PROPASSIONAL Platform”). PROPASSIONAL may amend this Agreement at any time with thirty (30) days written notice to you. Your continued use of the PROPASSIONAL Platform after the effective date of a revised version of this Agreement constitutes your acceptance of its terms.
YOU UNDERSTAND THAT BY CHECKING THE BOX AND CLICKING THE “SUBMIT” BUTTON, OR BY USING THE PROPASSIONAL PLATFORM, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE PROPASSIONAL PLATFORM. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
1. THE PROPASSIONAL PLATFORM.
1.1 Purpose of the PROPASSIONAL Platform.
The PROPASSIONAL Platform has been created to offer a number of mobile and web-based services to users requesting services to be performed (each, and you in such capacity, an “Opportunity (Employer)”, and such services, the “Services”) and individuals having obtained the conditions required by the site (each, and you in such capacity, a “Propassional (Talent)”). Under this Agreement, PROPASSIONAL provides services to you in your capacity as either a Opportunity (Employer) or Propassional (Talent). For clarity, the term “you”, as used in this Agreement, may mean “Opportunity (Employer)” and/or “Propassional (Talent)”. Our services include curating Opportunity (Employer)s and Propassional (Talent)s, facilitating the formation of contracts between Opportunity (Employer)s and Propassional (Talent)s and managing transactions related to those contracts. Opportunity (Employer)s post job opportunities and allow Propassional (Talent)s to enquire and/or book the Opportunity. Propassional (Talent)s, in turn, post qualifications profiles. If an Opportunity (Employer) and Propassional (Talent) agree on terms, a contract is formed directly between such Opportunity (Employer) and Propassional (Talent) subject to the provisions set forth in the Service Contract Policy (each such contract, a “Service Contract”). PROPASSIONAL facilitates payment from Opportunity (Employer)s in connection with their offering to a Propassional (Talent) acceptance through the PROPASSIONAL platform. PROPASSIONAL then is paid a percentage as service fee from the the payment Propassional (Talent)s receive on behalf of Opportunity (Employer)s in connection with their delivery of services through the PROPASSIONAL Platform once the Work Product (as defined below) is accepted by Propassional (Talent).
The service is available only to legal entities and persons who are legally old enough and are otherwise capable of forming legally binding contracts under applicable law. You represent, warrant and covenant that you are not (a) a citizen or resident of a country in which use or participation in the PROPASSIONAL Platform is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerceʼs Denied Persons or Entity List, the U.S. Department of Treasuryʼs Specially Designated Nationals or Blocked Persons Lists, or the Department of Stateʼs 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.
2. PROPASSIONAL GENERAL POLICIES.
2.1 User Content Transmitted Through the PROPASSIONAL Platform.
(b) You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the PROPASSIONAL Platform provided by you to PROPASSIONAL are non-confidential and PROPASSIONAL is entitled to their unrestricted use and dissemination for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
(c) You acknowledge and agree that PROPASSIONAL may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce this Agreement; ( iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of PROPASSIONAL, its users and the public. You understand that the technical processing and transmission of the PROPASSIONAL Platform, including your content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
(d) While PROPASSIONAL takes security and privacy very seriously, PROPASSIONAL is not a HIPAA Business Associate and the PROPASSIONAL Platform is not HIPAA-compliant and should not be used to store any protected health information (“PHI”). You agree that you will not upload or store any documents containing PHI. To do so would be a violation of this Agreement.
2.2 Identity and Account Security.
PROPASSIONAL reserves the right to validate your information at any time, 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 PROPASSIONAL, 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. Failure to provide information about you and your business when requested is a violation of this Agreement. You are solely responsible for ensuring and maintaining the secrecy and security of your PROPASSIONAL account password. You agree not to disclose this password to anyone and will be solely responsible for any use of or action taken through the use of such password on PROPASSIONAL. You must notify PROPASSIONAL support immediately if you suspect that your password has been lost or stolen. By using your PROPASSIONAL account, you acknowledge and agree the PROPASSIONALʼs account security procedures are commercially reasonable.
You acknowledge and agree that a substantial portion of the compensation PROPASSIONAL receives for making the Site available to you is collected as a deduction from the Propassional (Talent) Fee (as defined below). Therefore, for twenty four (24) months from the time you identify or are identified by any party through the Site, you must use the Site as your exclusive method to request work and make and receive all payments for work, directly or indirectly, with that party or arising out of your relationship with that party.
(a) Unauthorized Actions. You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You are solely responsible for all User Content. PROPASSIONAL reserves the right to investigate and take appropriate legal action against anyone who, in PROPASSIONAL’s sole discretion, violates this provision. The following are examples of the kind of User Content and/or use that is illegal or prohibited by PROPASSIONAL; you will not use the PROPASSIONAL Platform to:
(i) transmit any User Content that (A) infringes any intellectual property or other proprietary or privacy rights of any party; (B) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (C) constitutes material, non-public information about any company and/or constitutes information the disclosure of which would be in violation of securities laws; (D) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (E) poses or creates a privacy or security risk to any person; (F) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,“ “spam,“ “chain letters,“ “pyramid schemes,“ “contests,“ “sweepstakes,“ or any other form of solicitation; (G) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; (H) that constitutes PHI that is subject to HIPAA; or (I) in the sole judgment of PROPASSIONAL, is objectionable or which restricts or inhibits any other person from using or enjoying the PROPASSIONAL Platform, or which may expose PROPASSIONAL or its users to any harm or liability of any type;
interfere with or disrupt the PROPASSIONAL Platform or servers or networks connected to the PROPASSIONAL Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the PROPASSIONAL Platform;
(iii) violate any applicable local, state, national or international law, or any regulations having the force of law;
(iv) disclose information that constitutes material, non-public information about any third party, information that you have a duty or obligation to keep confidential (whether by agreement, law, rule, regulation, fiduciary duty, or other similar obligation or restriction), information the disclosure of which would be in violation of securities laws and/or information that is proprietary to a third party (including past or present employers or companies for which you have consulted) and not owned solely by you;
(v) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(vi) solicit personal information from anyone under the legal age;
(vii) harvest or collect email addresses or other contact information of other users from the PROPASSIONAL Platform by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
(viii) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
(ix) further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
(x) disclose to any third party or use for any purpose other than the purpose for which it was made available any information of PROPASSIONAL marked as “confidential” or “proprietary”, including without limitation the “Toolkit”; or
(xi) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the PROPASSIONAL Platform.
(b) No Reverse Engineering. The technology and software underlying the PROPASSIONAL Platform or distributed in connection therewith is the property of PROPASSIONAL, our affiliates and our partners (the “Software”). You will not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by PROPASSIONAL.
(c) Enforcement of Agreement and Policies. PROPASSIONAL has the right, but not the obligation, to monitor your use of the PROPASSIONAL Platform, any User Content that you transmit and the Services performed by the Propassional (Talent) to determine your compliance with the terms and conditions of this Agreement and to suspend or cancel your access to the PROPASSIONAL Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting PROPASSIONALʼs other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the PROPASSIONAL Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (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, our other users or for PROPASSIONAL. Once suspended or terminated, you MAY NOT continue to use the PROPASSIONAL Platform under a different account or reregister under a new account. If you attempt to use the PROPASSIONAL Platform 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 outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your account is canceled, you may no longer have access to any parts of the PROPASSIONAL Platform, including data, messages, files and other material you keep on PROPASSIONAL.
(d) Prior Agreements. With respect to any Service Contract, Propassional (Talent) hereby covenants that, except as Propassional (Talent) fully discloses previously in writing to the applicable Opportunity (Employer), Propassional (Talent) is not bound by the terms of any agreement with any other party to refrain from using or disclosing any trade secret or confidential or proprietary information in the course of Propassional (Talent)ʼs engagement by the applicable Opportunity (Employer) or to refrain from competing, directly or indirectly, with the business of such other party. Propassional (Talent) further covenants that Propassional (Talent)ʼs performance of all the terms of any Service Contract will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Propassional (Talent) in confidence or in trust prior to Propassional (Talent)ʼs engagement with the applicable Opportunity (Employer). Propassional (Talent) will not disclose to any Opportunity (Employer) or induce any Opportunity (Employer) to use any confidential or proprietary information or material belonging to others.
3. PAYMENT TERMS, INVOICES AND PAYMENT METHODS.
3.1 PROPASSIONAL Fees.
PROPASSIONAL charges Propassional (Talent)s a fee for the services of connecting the two parties and for collecting the fixed fee agreed between a Opportunity (Employer) and a Propassional (Talent) for work prior to the commencement of a Services Contract (“Propassional (Talent) Fee”). When an Opportunity (Employer) releases funds to a Propassional (Talent), PROPASSIONAL credits the Propassional (Talent) account and then deducts a service fee that PROPASSIONAL earns for creating, hosting, maintaining and providing the Site as further described by the Fee Policy (such fee, the “Service Fee”). All PROPASSIONAL Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
3.2 Disbursements to Propassional (Talent)s.
PROPASSIONAL will automatically disburse funds to Propassional (Talent)s according to the payment instructions on file with PROPASSIONAL upon funds become payable. Funds become payable to Propassional (Talent)s after Opportunity (Employer)s receives acceptance to offer submitted to a Propassional (Talent).
If Opportunity (Employer) fails to pay amounts due under this Agreement, whether by cancelling Opportunity (Employer)ʼs credit card, initiating an improper chargeback or any other means, Opportunity (Employer)ʼs PROPASSIONAL account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Opportunity (Employer) must reimburse PROPASSIONAL for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneysʼ fees and other costs of collection as allowed by law. In its discretion, PROPASSIONAL may setoff amounts due against other amounts received from or held for Opportunity (Employer), make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
3.4 Hold on Funds.
In cases of fraud, abuse or violation of this Agreement, all monies due to Propassional (Talent) may be be held and/or reclaimed, not just those from the Service Contract(s) under investigation.
Opportunity (Employer) will make all payments relating to, or in any way connected with, a Service Contract through the PROPASSIONAL Platform. Any action that encourages or solicits complete or partial payment outside of the PROPASSIONAL Platform is a violation of this Agreement. Should an Opportunity (Employer) be found in violation of this Section 3.5, it will owe PROPASSIONAL an amount with respect to each Service Contract equal to the greater of (a) US$2,500; or (b) the applicable fees had the payments been processed through the PROPASSIONAL Platform, plus 18%.
For clarity, you are agreeing to not circumvent the payment methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
(a) Submit proposals to, solicit, contract, hire, manage or pay any parties identified through the Site other than through PROPASSIONAL Platform.
(b) Accept proposals from, contact, deliver services to, invoice or receive payments from parties identified through the Site other than through the PROPASSIONAL Platform.
(c) Invoice or report on the Site an invoice or payment amount lower than that actually agreed between Opportunity (Employer) and Propassional (Talent) through the PROPASSIONAL Platform.
YOU WILL NOTIFY PROPASSIONAL 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 policy, please submit a confidential report to PROPASSIONAL by sending an email message to:
SUPPORT@ OUR COMPANY NAME DOT COM.
3.6 Tax Reporting.
PROPASSIONAL is a third party processor, and pursuant to Section 6050W of the Internal Revenue Code, PROPASSIONAL will provide a 1099-K form to the Internal Revenue Service for any Propassional (Talent) based in the United States who is paid over $20,000 through the PROPASSIONAL Platform and participates in over 200 separate Service Contracts in a single calendar year.
Except as provided for above, PROPASSIONAL will have no responsibility for determining the necessity of or for issuing any tax forms, or for determining, remitting, or withholding any taxes applicable to Propassional (Talent) Fees and Propassional (Talent) will be solely responsible for: (a) determining whether Propassional (Talent) is required by applicable law to file any tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the Propassional (Talent) Fees, and filing any such tax forms and remitting any such taxes or charges to the appropriate authorities. PROPASSIONAL will have the right, but not the obligation, to audit and monitor Propassional (Talent)ʼs compliance with applicable tax laws as required by this Section 3.6. Further, in the event of an audit of PROPASSIONAL, Propassional (Talent) agrees to promptly cooperate with PROPASSIONAL and provide copies of Propassional (Talent)ʼs tax returns, and other documents as may be reasonably requested for purposes of such audit.
3.7 Payment Methods.
Opportunity (Employer) hereby authorizes PROPASSIONAL to run, or have run, credit card authorizations on all credit cards provided by Opportunity (Employer), to store credit card details as Opportunity (Employer)ʼs method of payment for Services, and to charge Opportunity (Employer)ʼs credit card (or any other form of payment authorized by PROPASSIONAL or mutually agreed to between Opportunity (Employer) and PROPASSIONAL).
4. SERVICE CONTRACT TERMS BETWEEN Opportunity (Employer) AND Propassional (Talent).
Unless otherwise agreed to in a writing signed by both Opportunity (Employer) and Propassional (Talent), the terms and conditions of the Service Contract are as set forth in the Service Contract Policy. Opportunity (Employer) and Propassional (Talent) may not agree to any other terms and conditions that affect the rights or responsibilities of PROPASSIONAL as described herein and therein. This Agreement anticipates that Propassional (Talent)s will be classified as independent Propassional (Talent)s of Opportunity (Employer) and you agree (a) that PROPASSIONAL does not in any way supervise, direct, or control Propassional (Talent)ʼs work, (b) that PROPASSIONAL does not, in any way, supervise, direct, or control Propassional (Talent)ʼs work hours and location of work, and (c) PROPASSIONAL does not provide Propassional (Talent) with training or equipment needed for any Contract. Notwithstanding anything to the contrary in this Agreement, Opportunity (Employer) assumes all liability for proper classification of Propassional (Talent)s as independent Propassional (Talent)s or employees based on applicable legal guidelines.
5. YOUR ACKNOWLEDGMENT OF PROPASSIONAL’S ROLE.
5.1 Service Contracts.
You expressly acknowledge, agree and understand that: (i) the PROPASSIONAL Platform is merely a venue where users may act as either Opportunity (Employer)s or Propassional (Talent)s; (ii) PROPASSIONAL is not a party to any Service Contracts between Opportunity (Employer)s and Propassional (Talent)s; (iii) you recognize, acknowledge and agree that you are not an employee of PROPASSIONAL and that PROPASSIONAL does not, in any way, supervise, direct, or control your work or Services; (iv) PROPASSIONAL will not have any liability or obligations under or related to Service Contracts or any acts or omissions by you or other users; (v) PROPASSIONAL has no control over Propassional (Talent)s or over the Services promised or rendered by Propassional (Talent)s; and, (vi) PROPASSIONAL makes no representations as to the reliability, capability, or qualifications of any Propassional (Talent) or the quality, security or legality of any Services, and PROPASSIONAL disclaims any and all liability relating thereto.
PROPASSIONAL does not introduce Propassional (Talent)s to Opportunity (Employer)s or help Propassional (Talent)s find their work, however, PROPASSIONAL does provide search tools and automatic notifications that may facilitate such introductions. PROPASSIONAL merely makes the PROPASSIONAL Platform available to enable Propassional (Talent)s to identify and determine the suitability of Opportunity (Employer)s for themselves, and to enable Opportunity (Employer)s to identify and determine the suitability of Propassional (Talent)s for themselves. PROPASSIONAL does not direct, has no control over, makes no representations, and does not guarantee the quality, safety or legality of Services advertised, the truth or accuracy of listings, the qualifications, background, or identities of users, the ability of Propassional (Talent)s to deliver Services, the ability of Opportunity (Employer)s to pay for Services, or that a Opportunity (Employer) or Propassional (Talent) can or will actually complete a transaction.
5.2 No Background Checks.
PROPASSIONAL is not required to and does not verify any information given to us by Propassional (Talent)s or Opportunity (Employer)s, nor does PROPASSIONAL perform background checks on Propassional (Talent)s or Opportunity (Employer)s. PROPASSIONAL may provide information about a Propassional (Talent) or Opportunity (Employer), such as a strength or risk score, geographical location or third party feedback, background check or verification of identity or credentials. However, such information is based solely on data that Propassional (Talent) or Opportunity (Employer) submits. PROPASSIONAL provides such information solely for the convenience of its users and is not an introduction, endorsement or recommendation by PROPASSIONAL.
5.3 PROPASSIONAL’s Proprietary Rights.
PROPASSIONAL and its licensors reserve all rights, title, ownership and interest in and to copyrights, trademarks, service marks, trade names, trade secrets, patents and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected in and to the PROPASSIONAL Platform. You may not use the PROPASSIONAL Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement. PROPASSIONAL reserves the right to withdraw, expand and otherwise change the PROPASSIONAL Platform at any time in PROPASSIONALʼs sole discretion.
5.4 Third Party Websites.
The PROPASSIONAL Platform may provide, or third parties may provide, links or other access to other sites and resources on the Internet. PROPASSIONAL has no control over such sites and resources and PROPASSIONAL is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that PROPASSIONAL will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the PROPASSIONAL Platform are between you and the third party, and you agree that PROPASSIONAL is not liable for any loss or claim that you may have against any such third party.
5.5 Social Networking Services
In addition, PROPASSIONAL is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, PROPASSIONAL 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 Networking Services. PROPASSIONAL enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
5.6 PROPASSIONAL as a Limited Agent.
This Agreement and any registration for or use of this Site will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and PROPASSIONAL, except and solely to the extent expressly stated in this Agreement.
From time to time, a user may ask PROPASSIONAL to provide a physical or manually signed copy of this Agreement, a Service Contract, or an ancillary document (for example, to enable you to withdraw payments from your foreign bank account). You hereby appoints PROPASSIONAL as its agent for the limited purpose of executing documents that confirm your activities on the PROPASSIONAL Platform. PROPASSIONAL will act on your behalf and in a clerical capacity, without in any way restricting PROPASSIONALʼs rights or expanding PROPASSIONALʼs obligations under this Agreement or any Service Contract. You hereby appoint PROPASSIONAL as your agent to execute an Act of Acceptance or equivalent instrument on your behalf documenting payments made or to be made to Propassional (Talent)s or to PROPASSIONAL, if another user so requests.
6 WARRANTY DISCLAIMER.
PROPASSIONAL MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, SITE, PROPASSIONAL PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROPASSIONAL DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 9.2 below (TERMINATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AGAINST PROPASSIONAL WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
7 LIMITATION OF LIABILITY.
IN NO EVENT WILL PROPASSIONAL BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF PROPASSIONAL TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE GREATER OF: (A) US$2,500; AND (B) ANY PROPASSIONAL FEES RETAINED BY PROPASSIONAL WITH RESPECT TO CONTRACTS ON WHICH YOU WERE INVOLVED AS Opportunity (Employer) OR Propassional (Talent) DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, 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.
You will indemnify, defend and hold harmless PROPASSIONAL and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneysʼ fees and all related costs and expenses) arising from or relating to your use of the PROPASSIONAL Platform, any Services or any Service Contract entered into by you (including without limitation claims that Propassional (Talent) was misclassified as an independent Propassional (Talent) or that PROPASSIONAL was an employer or joint employer of Propassional (Talent), as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, workerʼs compensation benefits, unemployment benefits, or any other employee benefits), any User Content, your violation of these Terms of Service, your violation of any rights of another.
9 TERM AND TERMINATION.
The term of this Agreement commences on the date of acceptance of this Agreement and continues in effect until terminated in accordance with Section 9.2 below.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending your account), provided, that any such termination for convenience will not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement will continue to apply with respect to such Service Contracts.
9.3 Consequences of Termination.
Termination will not relieve Opportunity (Employer) of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, will be charged to Opportunity (Employer)ʼs credit card or other form of payment pursuant to Section 3.7 above (Payment Methods). PROPASSIONAL will pay Propassional (Talent), in accordance with the provisions of Section 3 above (Invoices and Payment Methods).
Sections 2, 3, 4, 5, 6, 7, 8, 9.4, 10, 11 and 12 of this Agreement will survive any termination thereof.
10.1 Entire Agreement.
This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
10.2 Side Agreements.
Section 10.1 above notwithstanding, Opportunity (Employer)s and Propassional (Talent)s may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, 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 PROPASSIONALʼs obligations or restrict PROPASSIONALʼs rights under this Agreement.
You will not violate any laws or third party rights on or related to the PROPASSIONAL Platform. Without limiting the generality of the foregoing, you agree to comply with all applicable import and export control laws and third partiesʼ Proprietary Rights. The Software and the transmission of applicable data, if any, is subject to United States export controls. No Software may be exported or re-exported in violation of U.S. export laws. Using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the PROPASSIONAL Platform, including as it concerns online conduct and acceptable content.
10.4 Notices; Consent to Electronic Notice.
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the PROPASSIONAL Platform. Notices hereunder will be invalid unless made in writing and given (a) by PROPASSIONAL via email (in each case to the email address that you provide), (b) a posting on the PROPASSIONAL Site or (c) by you via email to SUPPORT@ OUR COMPANY NAME DOT COM or to such other addresses as PROPASSIONAL may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
No modification or amendment to this Agreement will be binding upon PROPASSIONAL unless in a written instrument signed by a duly authorized representative of PROPASSIONAL. For the purposes of this Section 10.5, a written instrument will expressly exclude electronic communications such as email and electronic notices but will include facsimiles.
10.6 No Waiver.
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 partyʼs right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
You may not assign this Agreement, or any of its rights or obligations hereunder, without PROPASSIONALʼs prior written consent in the form of a written instrument signed by a duly authorized representative of PROPASSIONAL (and, for the purposes of this Section 10.7, a written instrument will expressly exclude electronic communications such as email and electronic notices but will include facsimiles). PROPASSIONAL may freely assign this Agreement without your consent. Any attempted assignment or transfer in violation of this Section 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.
10.9 Choice of Law.
This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement, including but not limited to a Service Contract, will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
10.10 Personal Jurisdiction and Venue.
You agree that any claim you may have against PROPASSIONAL must be resolved by the California state courts of Los Angeles County (or, if there is exclusive federal jurisdiction, the United States District Court for the District of California). You hereby irrevocably consent to the personal jurisdiction and venue of these courts.
10.11 Prevailing Language.
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.
11 YOUR PRIVACY.
12 NOTICE FOR CALIFORNIA USERS.
Under California Civil Code Section 1789.3, users of the PROPASSIONAL Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at PROPASSIONAL, SUPPORT@ OUR COMPANY NAME DOT COM