EFFECTIVE October 6, 2011
AGREEMENT
You acknowledge and agree to the following terms and conditions when You use the Moving Help MarketPlace. Your and Our responsibilities are specific and limited to the terms of this Agreement. You must read, agree with, and accept all of the terms and conditions contained in this Agreement which are those terms, conditions and definitions expressly set out below
1.Definitions:
The following is a non-exhaustive list of definitions that shall apply to the use of this website; other definitions are included through out the text:
a. "You", "Your", "User" - an individual, or an individual for and on behalf of a corporate entity or organization, that desires to obtain certain services, such as moving help services; b. "Moving Helper", "Service Provider" or “Mover” – an indepedent individual or corporate entity or organization, that desires to provide services, such as moving help services and others, to the consuming public.; c. "We", "Us", "Our" or “eMove” - eMove, Inc., a Nevada Corporation with principal place of business in Phoenix, Arizona; d. "Services" - moving help services or other services provided by a Moving Helper; e. "Moving Help MarketPlace" or "MarketPlace" or “web site”- Our website located at movinghelp.com f. "Moving Help Request" or "Request" or “Place Order” - Your offer to enter into a transaction for the Services;
2. Acknowledgement, Common Sense and Good Judgment:
You acknowledge that We give You access to the Marketplace free of charge. You acknowledge and agree that We give You the ability to search for a Moving Helper and its Services on the MarketPlace free of charge. You agree to use common sense and good judgment when using the Moving Help MarketPlace and when choosing a Moving Helper and its Services.
3. Qualification for Use of the MarketPlace:
In order to qualify to use this MarketPlace, You must be and You acknowledge that You are an individual whom can enter into a legally binding contract under applicable law. In compliance with the Child Online Privacy Protection Act, this web site is not intended or provided for use by minors.
Please read the following six (6) sections very carefully.
4. eMove operates the Marketplace. The MarketPlace is a Neutral Venue and Online Clearinghouse:
This web site functions solely as a neutral venue and online clearinghouse to connect You and the various Moving Helpers. We do not endorse any Services or Moving Helper. We specifically disclaim any and all explicit or implicit endorsements or recommendations for any Services or Moving Helper. We are not involved in any manner with the provision of the Services by the Moving Helper. Furthermore, the Moving Helper(s) do not work for Us. You acknowledge and agree that the Moving Helper(s) are not Our employees, agents, representatives or independent contractors. You acknowledge and agree that We do not do any type of background checks of a Moving Helper nor do we do inquiries into the work history, criminal history or character history of a Moving Helper nor do we do inquiries into whether a Moving Helper has any or all applicable licensure, insurance(s) or permits that may be necessary to perform the Services. Therefore, You acknowledge and agree that We cannot guarantee nor do We have control over the quality, accuracy, standard of Service, safety or legality of the Services provided by the Moving Helper or of the Moving Helper itself. You acknowledge and agree that We only operate a web site. You acknowledge and agree that any and all communications, correspondence, verbal or written, or any warranties or representations, made with regard to the Services and the Moving Helper are not provided by Us and are specifically and solely between You and the Moving Helper.
5. Transaction for Services:
By clicking "Place Order", You acknowledge and agree that You have submitted a Moving Help Request and that this is Your effective offer to enter into a transaction for the Services with that Moving Helper.
6. Payment for Services:
By clicking "Place Order", You acknowledge and agree that You have authorized payments for the total amounts of the Services and the Refundable Order Handling Fee and that You have authorized Us to charge the total amounts for the same against Your credit or debit card. Furthermore, by clicking “Place Order”, You acknowledge and agree that You have requested a Payment Code in order to complete the transaction for any provided Services.
You acknowledge that we are not a financial institution and that we do not provide financial services. You acknowledge that We act only as a facilitator for the process that helps You pay the Moving Helper for any provided Services. Furthermore, You acknowledge that We do not establish an account, escrow or otherwise, for Your payments and We do not act as a trustee, fiduciary or escrow with respect to Your payments.
You agree to provide truthful, accurate and complete information at all times including but not limited to necessary credit or debit card and identification information. We cannot guarantee the ability of You to complete a transaction for any provided Services. Furthermore, due to the difficulty of individual authentication on the Internet, We cannot and will not in any manner verify or confirm Your identity or ability to pay for the provided Services.
Upon the completion of, and your satisfaction with, the Services, You agree that You will complete the transaction with the Moving Helper by presenting the Payment Code to the Moving Helper. You agree and acknowledge that Your presentation of the Payment Code to the Moving Helper is Your payment to the Moving Helper and Your authorization for the release of any and all authorized payments for the Services. You agree that You are responsible for any and all payments owed to the Moving Helper. You agree that You are not entitled to a refund from Us for any Services that are completed in less time than that amount of time set forth in your Request.
You acknowledge that if You do not give the Payment Code to the Moving Helper or if Your accepted Order for Services is not cancelled within sixty (60) days after that date the Services were to be provided to You, You agree that We should assume and that We will assume that the Services were rendered to You and therefore You direct Us to release Your payment to the Moving Helper.
7. Refundable Order Handling Fee:
A $5.95 Refundable Order Handling Fee is added as a separate charge along with the final total amount for Services as set forth in a Moving Help Request.
Please note that this Fee is fully refundable but You agree that it is Non-Refundable if:
a. You do not complete a review of the Moving Helper(s) within sixty (60) days from the date the Moving Helper enters the Payment Code or within sixty(60) days from the date that a Moving Helper, after acceptance of a Moving Help Request, fails to perform the Services or fails to perform the Services to your satisfaction, or within sixty (60) days of that date that Your cancellation of a Moving Help Request (whether accepted or not) was processed;
8. Your Review of Moving Helper:
You acknowledge that You, as the Customer for the Services provided by the Moving Helper, have the ability to control and make others aware of, by means of commentary and feedback on the MarketPlace, the quality (or lack thereof) of Moving Helpers and/or their Services on the MarketPlace. You agree that this ability is critical for Your future MarketPlace decision making and for the future MarketPlace decision making of other Customers.
You acknowledge that your ability to review a Moving Helper is waived if not made within sixty (60) days from the date the Moving Helper enters the payment code or within sixty (60) days of that date that Your cancellation of a Moving Help Request (whether accepted or not) was processed.
You expressly grant Us the irrevocable, perpetual, worldwide and royalty free right to use Your Moving Helper review (including your first name and the first letter of your last name) for our advertising and marketing purposes in any manner and in any media that We so choose whether now known or hereafter devised. Furthermore, You agree that You will not allow Your Moving Helper review to be used by a Moving Helper for their own advertising and marketing on their own websites and materials as such use is outside of the purpose of this provision and the MarketPlace. Finally, You agree that You do not have the right to remove or edit Your Moving Helper review.
9. Disputes with Moving Helper and Your Release/Waiver of Liability:
Because we only operate a web site and do not provide any of the Services (as already explained above), We are not responsible for resolving any disputes between You and the Moving Helper regarding the Services or the Moving Helper. You agree that all of these types of disputes must be resolved between You and the Moving Helper.
Furthermore, the Moving Help request and its acceptance and if applicable, any resulting provision of Services, are solely between You and the Moving Helper. Therefore, when and where there are any claims, demands, liabilities, damages or losses incurred as a result of the same, You, your heirs, successors and assigns, do hereby waive and release Us (Our officers, directors, agents, parent, subsidiaries, affiliated companies and employees) from any such claims, demands, liabilities, damages or losses.
You acknowledge and agree that both You and the Moving Helper each have the right to pursue a claim against one another in a Court of competent jurisdiction or in another similar forum of dispute resolution.
10. A Moving Helper’s Disclosure/Use of Your Personally Identifiable Information:
YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR THE PRIVACY PRACTICES OF ANY MOVING HELPER NOR ARE WE RESPONSIBLE FOR THE ACTIONS THAT ANY MOVING HELPER MAY TAKE WITH REGARD TO YOUR PRIVACY OR YOUR PERSONALLY IDENTIFIABLE INFORMATION.
11. Modification of Agreement:
At anytime and in Our sole discretion, We may modify the terms and conditions of this Agreement. The modified terms and conditions shall take effect immediately after posting on Our website. This Agreement may not be modified, amended and/or changed by You in any manner unless agreed to in writing by an Officer of eMove. Furthermore, We may modify or discontinue this web site at anytime.
12. Other Terms and Conditions:
You acknowledge and agree that We have the sole discretion to set forth and post additional terms and conditions for Your use of the MarketPlace at various places throughout the Moving Help MarketPlace. You agree that those additional terms and conditions shall be considered an effective amendment to this Agreement and said terms and conditions shall be incorporated herein. Furthermore, You expressly agree that if there is any conflict between those additional terms and conditions and the specific terms and conditions set forth herein, the terms and conditions set forth herein shall govern.
13. Protection of Intellectual Property Content:
This MarketPlace contains trademarks, service marks, copyrighted material, inventions, know how, potential patentable business method material, design logos, phrases, names, logos or HTML Code ("Intellectual Property Content") all of which, unless otherwise indicated and/or provided pursuant to a third party license, are Our sole property and We retain all appurtenant rights, interests and title thereto. We also claim ownership rights under the copyright and trademark laws with regard to the "look", "feel", "appearance" and "graphic function" of this web site including but not limited to its color combinations, sounds, layouts and designs. You agree and acknowledge that Your use of this web site does not confer upon You any license or permission to use Our (or any third party's) Intellectual Property Content. You shall not reproduce, modify, display, sell, or distribute the Intellectual Property Content, or use it in any other way for public or commercial purpose. All other trademarks, service marks and copyrights are held by their rightful owners.
Furthermore, You shall not reproduce, translate, copy, enhance, add to, modify, or reverse engineer or de-compile any software or software platform or other data processing program(s) upon which this MarketPlace operates or is based.
14. Copyright Infringement Policy:
Pursuant to 17 United States Code 512(c)(2) ("Digital Millennium Copyright Act of 1998"), Our designated agent for notice of alleged copyright infringement appearing on Our MarketPlace is:
eMove, Inc. Legal Department 2727 N. Central Ave. Phoenix, Arizona 85004 Phone: (602) 263-6811 Fax : (602) 277-5812
You need to fulfill the requirements specified in Title II of the Digital Millennium Copyright Act of 1998 to file a notice of infringement. The text of this statute can be found at the U.S. Copyright Office web site, http://lcweb.loc.gov/copyright/.
15. Third Party Links:
This MarketPlace may provide links to third party web sites. We specifically disclaim any representation or warranty regarding the products, services, content, accuracy, reliability and function of any third party web site. You agree and acknowledge that We have no responsibility or liability for any transactions, communications or interactions between You and third party web sites and/or their owners. We do not necessarily endorse, recommend and/or control any third party web site. Your use of any third party web site, whether provided as a link by this web site or not, is strictly at Your own risk.
16. Your Information, Interaction and Communication on the MarketPlace:
a. You expressly represent and warrant the following: 1) You are a customer in need of the Services, and; 2.) You are not a current or former Moving Helper or someone engaged in the moving help services business entering into this Agreement for your own customers, and: 3.) You are the owner, with all appurtenant rights thereto, of any and all communication, content and/or information (including Your customer reviews) posted on the web site, and; 4.) You are the legitimate and rightful grantee of a worldwide, royalty free, perpetual, irrevocable, sub-licensable, non- exclusive license to use, distribute, reproduce and distribute such communication, content and/or information (including Your customer reviews).
b. You further represent and warrant that any and all of Your online communication, content and/or distribution of information (including Your customer reviews):
1. Will not violate any federal or state law, regulation, rule, or statute;
2. Will not violate the terms of this Agreement;
3. Will not infringe any third party’s intellectual property rights including but not limited to copyright, patent or trademark rights;
4. Will not contain obscene, lewd, or suggestive content and under no circumstances will it contain child pornography;
5. Will not be libelous, threatening, harassing or defamatory;
6. Will not contain any computer hardware or software, viruses, trojan horses, worms, or any other computer programming that may interfere with the operation of this website, operation of any of Our systems and or create or impose a large burden or load on the website;
7. Will not scan or test the vulnerability or security of Our website or the system within which it operates;
8. Will not be used for commercial or public purposes outside of the requirements of this Agreement;
9. Will not create liability for us in any manner whatsoever;
c. Furthermore, You agree that this MarketPlace acts as a passive conduit for any and all of Your communication and/or distribution of information. We have no control, editorial or otherwise, over any communication, information, and specifically, over the content of
such communication or information. We do not and will not ensure the accuracy or reliability of such communication or information nor will We act as a monitor over the content of such communication or information. However, We do reserve the right to remove or restrict any communication or information that You may post to this MarketPlace that is in violation of this Agreement, illegal, threatening, or lewd.
17. Our Termination:
We reserve the right to terminate this Agreement or Your use of the MarketPlace for any reason at anytime without notice.
18. Arbitration/Venue/Governing Law:
FOR THOSE DISPUTES THAT EMOVE AND YOU HAVE SOLELY WITH EACH OTHER, YOU AND EMOVE AGREE THAT THE FOLLOWING ARBITRATION OF THOSE DISPUTES SHALL APPLY. HOWEVER, YOU AGREE AND AKNOWLEDGE THAT THIS ABRITRATION DOES NOT INCLUDE NOR IS IT MEANT FOR DISPUTES SOLELY BETWEEN YOU AND THE MOVING HELPER INCLUDING BUT NOT LIMITED TO THE SERVICES PROVIDED OR NOT BY THE MOVING HELPER.
1. eMove (“eMove” for purposes of this provision is further defined below) and You (“You” for purposes of this provision is further defined below) agree that the Services (“Services” for purposes of this provision is further defined below) and your purchase of the Services offered by a Moving Helper over the internet at movinghelp.com, both have an effect on interstate commerce. Therefore, eMove and You agree that this Agreement shall be construed and interpreted under the Federal Arbitration Act, 9 U.S.C. Section 1, et. seq.
2. You and eMove agree that any and all Claims (“Claims” as defined below) by and between You and eMove (and not You and the Moving Helper) relating in any way to Your use of, or interaction with, movinghelp.com and/or Your purchase of the Services offered by a Moving Helper at movinghelp.com, shall be submitted to binding Arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (“AAA Rules”), and judgment may be entered on the Arbitration award by a Court of competent jurisdiction. You and eMove agree that Claims submitted to Arbitration will be decided by a single Arbitrator who must be on the AAA National Roster of Commercial Arbitrators and selected in accordance with the AAA Rules. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators have the authority to award the same damages and relief that a court can award.
3. EMOVE AND YOU AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND THAT CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTAATIVE BASIS. EMOVE AND YOU AGREE THAT CLAIMS OF TWO OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME ARBITRATION UNLESS ARISING FROM THE SAME TRANSACTION. FURTHERMORE, EMOVE AND YOU AGREE THAT NEITHER YOU NOR EMOVE MAY PURSUE THE CLAIMS IN ARBITRATION AS A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION NOR MAY ANY SUCH CLAIMS BE PURSUED ON EITHER OF OUR BEHALF IN ANY COURT, INCLUDING ASSIGNED CLAIMS. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD RELIEF ONLY ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS.
4. You acknowledge and agree that You voluntarily and knowingly entered into this Arbitration Agreement, and chose to purchase the Services at movinghelp.com rather than one of its competitors who may not have an arbitration agreement.
DEFINITIONS:
"Services” means load and unload and other related moving or moving help type services purchased by You from a Moving Helper at movinghelp.com.
"eMove” means eMove, Inc. and all of its parent corporations and each of their respective subsidiaries and affiliated companies.
"You” means You and Your respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, relatives, spouse, beneficiaries, estate, domestic partners, heirs and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services. “
"Claims” is to be broadly interpreted to include any dispute, Claim or cause of action arising out of or relating to Your dealings with eMove, your use and interaction with movinghelp.com, Your purchase of the Services offered by a Moving Helper at movinghelp.com and use of any eMove website. Claims also include any and all legal theories that may be asserted by You.
RULES APPLICABLE TO ALL CLAIMS:
Notice Procedure.If You intend to seek Arbitration you must first send to eMove by certified mail, a written Notice of Dispute ("Notice"). The Notice to eMove should be addressed to: eMove, Inc., Arbitration, 2721 North Central Ave., 5th Floor, Phoenix, AZ 85004 (“Notice Address”). If eMove and You do not reach an agreement to resolve the Claim within 60 days after the Notice is received, or immediately upon eMove’s denial of Your Claim, You or eMove may commence an Arbitration proceeding. You may download a form Notice (at www.uhaul.com/arbitration) (and a form to initiate Arbitration). During the Arbitration, the amount of any settlement offer made by eMove or You shall not be disclosed to the Arbitrator until after the Arbitrator determines the amount, if any, to which You or eMove is entitled.
Arbitration Rules. The AAA Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes apply in all Claims (The Rules are available at www.adr.org) with the following exceptions:
a. Claims seeking $75,000 or less. After eMove receives the required notice that You have commenced Arbitration, it will reimburse You for your payment of the filing fee. The Arbitration will take place in the County (or Parish) where You reside at the time of Your purchase of the Services, unless otherwise agreed in writing by You and eMove. eMove waives any right to recover attorneys’ fees or costs from You except as expressly provided in this Agreement. If the Notice procedure above was followed and: a) eMove did not make a written offer to settle the dispute before an arbitrator was selected, and the Arbitrator awards you any relief on the merits; or b) after finding in Your favor in any respect on the merits of Your claim, the Arbitrator issues You an award that is greater than the value of eMove’s last written settlement offer made before an arbitrator was selected, then eMove will: i) pay You the amount of the Arbitrator’s award or $7,500, whichever is greater (Alternative Payment), and; ii) pay Your attorney, if any, the amount of reasonable attorneys' fees, and reimburse any expenses (including expert witness fees and costs) that Your attorney reasonably accrued for investigating, preparing, and pursuing Your Claim in Arbitration (Attorney Premium).
b. Claims seeking $15,000 or less. In addition to sub-paragraph “a” above, You may choose whether the Arbitration proceeds in person, by telephone, or based only on written submissions.
c. Claims seeking in excess of $500,000. The AAA Rules for Large, Complex Commercial Disputes shall apply. Payment of all fees will be governed by AAA Rules. The Arbitration will take place in the County (or Parish) where You reside at the time of Your purchase of the Services, unless otherwise agreed in writing by You and eMove. The Federal Rules of Evidence shall apply unless otherwise agreed to in writing by You and eMove.
Arbitrator’s Authority. The Arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based. The Arbitrator has the authority to make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Alternative Payment and the Attorney Premium at any time during the proceeding and upon request from either party made within 14 days of the Arbitrator's ruling on the merits. The Arbitrator has the authority to award any form of individual relief, including equitable relief, including injunctions, and other relief available under applicable law. The Arbitrator is bound by the terms of this Arbitration Agreement. All issues are for the Arbitrator to decide, except issues relating to the scope and enforceability of the Arbitration Agreement which shall be for a Court of competent jurisdiction to decide.
Fees. Except as otherwise provided in this Arbitration Agreement, eMove will pay all AAA filing, administration, and arbitrator fees for any Arbitration initiated in accordance with the Notice Procedure above. Current filing fees are available at www.adr.org If, however, the Arbitrator finds that either the substance of Your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, You agree to reimburse eMove for all monies previously disbursed by it that are otherwise Your obligation to pay under the AAA Rules.
Attorney’s Fees and Costs. The right to attorneys' fees and expenses is in addition to any right to attorneys' fees You may have under applicable law. However, You may not recover duplicative awards of attorneys' fees or costs. Although under some laws eMove may have a right to an award of attorneys' fees and expenses if it prevails in Arbitration, eMove agrees that it will not seek such an award.
For claims that do not exceed the jurisdictional limit of state small claims court, either You or eMove may bring Claims in small claims court in lieu of arbitration.
19. WARRANTY DISCLAIMER
USE OF THE MARKETPLACE IS ENTIRELY AT YOUR OWN RISK. THIS MARKETPLACE IS SPECIFICALLY PROVIDED "AS IS" AND WITHOUT ANY WARRANTY, REPRESENTATION OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED.
WE MAKE NO GUARANTEE, REPRESENTATION OR WARRANTY THAT THE MARKETPLACE, OUR DATABASES, SYSTEMS AND INFRASTRUCTURE WILL OPERATE UNINTERRUPTED, WILL BE FULLY FUNCTIONAL, SECURE, WITHOUT UNAUTHORIZED ACCESS (INCUDING THIRD PARTY HACKERS) , OR ERROR FREE. WE MAKE NO WARRANTY REGARDING ANY SERVICES PURCHASED OR TRANSACTIONS ENTERED INTO AS A RESULT OF A CONNECTION BY THIS MARKETPLACE.
20. Our Limitation of Liability:
IN NO EVENT SHALL WE BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR MARKETPLACE OR THIS AGREEMENT.
21. Indemnification:
You agree to indemnify, defend and hold Us and our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim, demand, damage or loss, incurred or arising out of your use of the MarketPlace, breach of this Agreement, violation of any federal or state law, statute, regulation or the infringement of any third party rights including but not limited to any third party intellectual property rights.
22. Assignment:
This Agreement may be assigned and transferred by Us to a third party at anytime and without notice to You. This Agreement may not be assigned by You.
23. Independent Contractor:
You hereby agree and acknowledge that Your use of this Marketplace does not confer or imply any agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between You and Us whatsoever.
24. Severability:
Each provision of this Agreement is intended to be severable. If any term, covenant, condition, or other provision herein is unlawful, invalid or unenforceable for any reason whatsoever, and such illegality, invalidity or unenforceability does not affect the remaining parts of this Agreement, then all such remaining parts hereof shall be valid and enforceable and have full force and effect as though the invalid or unenforceable provisions had not been included. A waiver of any part of or performance under this Agreement shall not constitute a waiver of the whole.
25. Headings:
The headings contained in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
26. Integration:
This Agreement supersedes any and all prior discussions and agreements and the parties in this Agreement to the extent set forth herein contains the sole, final and complete expression and understanding between the parties hereto.
27. No Third Party Beneficiaries:
No person other than the parties hereto, shall have any rights or claims under this Agreement.
28. The following provisions shall survive any termination of this Agreement or termination of your Transaction for Services: 4, 5, 6, 7, 8, 9, 10, 13, 18, 19, 21 and 22.