EFFECTIVE SEPTEMBER 30, 2016AGREEMENT
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 throughout 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 Help® Service Provider”, “Service Provider” or “Mover” – an independent 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 Help® Service Provider
- 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 Help® Service Provider 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 Help® Service Provider 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 Help® Service Providers. We do not endorse any Services or Moving Help® Service Providers. We specifically disclaim any and all explicit or implicit endorsements or recommendations for any Services or Moving Help® Service Provider. We are not involved in any manner with the provision of the Services by the Moving Help® Service Provider. Furthermore, the Moving Help® Service Providers do not work for Us. You acknowledge and agree that the Moving Help® Service Providers 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 Help® Service Provider nor do we do inquiries into the work history, criminal history or character history of a Moving Help® Service Provider nor do we do inquiries into whether a Moving Help® Service Provider 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 Help® Service Provider or of the Moving Help® Service Provider 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 Help® Service Provider are not provided by Us and are specifically and solely between You and the Moving Help® Service Provider.
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 Help® Service Provider.
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 Help® Service Provider 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 Help® Service Provider by presenting the Payment Code to the Moving Help® Service Provider. You agree and acknowledge that Your presentation of the Payment Code to the Moving Help® Service Provider is Your payment to the Moving Help® Service Provider 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 Help® Service Provider. 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 Help® Service Provider 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 Help® Service Provider.
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 Help® Service Provider within sixty (60) days from the date the Moving Help® Service Provider enters the Payment Code or within sixty(60) days from the date that a Moving Help® Service Provider, 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 Help® Service Provider.
You acknowledge that You, as the Customer for the Services provided by the Moving Help® Service Provider, 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 Help® Service Provider 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 Help® Service Provider is waived if not made within sixty (60) days from the date the Moving Help® Service Provider 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 Help® Service Provider 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 Help® Service Provider review to be used by a Moving Help® Service Provider 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 Help® Service Providers review.
9. Disputes with Moving Help® Service Provider 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 Help® Service Provider regarding the Services or the Moving Help® Service Provider. You agree that all of these types of disputes must be resolved between You and the Moving Help® Service Provider.
Furthermore, the Moving Help® request and its acceptance and if applicable, any resulting provision of Services, are solely between You and the Moving Help® Service Provider. 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 Help® Service Provider 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 Help® Service Provider Disclosure/Use of Your Personally Identifiable Information.
YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR THE PRIVACY PRACTICES OF ANY Moving Help® SERVICE PROVIDER NOR ARE WE RESPONSIBLE FOR THE ACTIONS THAT ANY Moving Help® SERVICE PROVIDER 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©(2) (“Digital Millennium Copyright Act of 1998”), Our designated agent for notice of alleged copyright infringement appearing on Our MarketPlace is:
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 Help® Service Provider 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 AGREEMENT.
Please read carefully. This mandatory agreement affects your rights.
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 ARBITRATION DOES NOT INCLUDE NOR IS IT MEANT FOR DISPUTES BETWEEN YOU AND THE Moving Help® Service PROVIDER INCLUDING BUT NOT LIMITED TO THE SERVICES PROVIDED OR NOT BY THE Moving Help® Service PROVIDER.
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 Help® Service Provider 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) between You and eMove (and not You and the Moving Help® Service Provider) relating in any way to Your use of, or interaction with, movinghelp.com and/or Your purchase of the Services offered by a Moving Help® Service Provider at movinghelp.com, shall be submitted to binding Arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Consumer Arbitration Rules (www.adr.org/consumer) and the AAA Commercial Arbitration Rules for Large, Complex Matters (www.adr.org/commercial) (Claims seeking $500,000 or more). AAA Rules are also available at www.uhaul.com/arbitration. Judgment may be entered on the Arbitration award by a Court of competent jurisdiction. You and eMove agree that Claims submitted to Arbitration shall be decided in a single arbitration before 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-REPRESENTATIVE 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, which waives your right to file a lawsuit in court (except for small claims), and chose to purchase the Services at movinghelp.com rather than one of its competitors who may not have an arbitration agreement.
5. In the event this Agreement conflicts with any Arbitration Agreement between You and eMove from the purchase of the Services, this Agreement shall control.
“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, including but not limited to, Your use and interaction with movinghelp.com, Your purchase of the Services offered by a Moving Help® Service Provider at movinghelp.com and use of any eMove website. Claims include any and all legal theories, including but not limited to, all statutory and tort claims, that may be asserted by You.
“eMove” means eMove, Inc. and all of its parent corporations and each of their respective subsidiaries and affiliated companies. “Services” means load and unload and other related moving or Moving Help® type services purchased by You from a Moving Help® Service Provider at movinghelp.com.
“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. RULES APPLICABLE TO ALL CLAIMS:
Notice and Demand Procedure. If You intend to seek Arbitration, You must first send by certified mail, a written Notice of Dispute (“Notice”) to: eMove, Inc., Arbitration, 2721 North Central Ave., 5th Floor, Phoenix, AZ 85004 (“Notice Address”). You may obtain a form Notice at www.uhaul.com/arbitration. If eMove and You do not reach an agreement to resolve the Claims within 60 days after the Notice is received, or immediately upon eMove’s denial of Your Claims, You or eMove may commence an Arbitration proceeding by filing a Demand for Arbitration (“Demand”). You may obtain a form Demand at www.emove.com/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 Consumer Arbitration Rules apply in the arbitration of all Claims with the following exceptions:
a. Small Claims Court Option. For claims that do not exceed the jurisdictional limit of state small claims court, You or eMove may bring Claims in small claims court instead of arbitration. If You elect this option and the small claims court find in Your favor on the merits of Your claim, eMove shall reimburse your filing and service of process expenses up to $500 and pay You $500 in addition to what You are awarded (“Small Claims Premium”).
b. Arbitrator Selection. For Claims seeking less than $500,000, after consumer and business filing fees have been paid, AAA will send the parties a list of five (5) qualified Arbitrators from its National Roster. If the parties do not agree on the Arbitrator within 14 calendar days from the date both parties have received the list, then the AAA case administrator shall conduct a telephone conference during which You and eMove will alternately strike names from the list of Arbitrators, with You striking the first name, until one Arbitrator’s name remains. If such Arbitrator is not available or declines to serve, AAA shall generate another list, and the selection process shall be repeated.
c. Claims seeking $75,000 or less. After eMove receives the required Demand for Arbitration 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 up to 14 days before the arbitration hearing, 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 up to 14 calendar days before the arbitration hearing, 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”) and which are presented to eMove within 14 calendar days of the Award. The maximum payment of attorney’s fees and expenses under the Attorney Premium shall be the amount of the Arbitrator’s award.
d. Claims seeking $15,000 or less. In addition to sub-paragraph “c” above, You may choose whether the Arbitration proceeds in person, by telephone, or based only on written submissions.
e. Claims seeking in excess of $500,000. The AAA Rules for Large, Complex Commercial Disputes shall apply. A single Arbitrator shall preside over the arbitration, except that You or eMove may elect to proceed before a panel of three (3) Arbitrators. 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 eMove and You. The Federal Rules of Evidence shall apply unless otherwise agreed to in writing by eMove and You.
Arbitrator’s Authority. The Arbitrator shall:
a. Be bound by the terms of this Agreement;
b. Decide all issues based on the evidence and arguments submitted by a party, except issues relating to the scope and enforceability of the Arbitration Agreement (including but not limited to the enforceability of the individual action requirement of paragraph 3, above) which shall be for a Court of competent jurisdiction to decide;
c. Issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based and to identify the specific types of damages awarded, if any;
d. Award any form of individual relief, including equitable relief, injunctions, and other relief available under applicable law;
e. 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 proceedings;
f. Apply a statute of limitations to all Claims as though such Claims were brought in an appropriate court of competent jurisdiction;
g. Participate in a post-decision Arbitrator Interview for the purpose of providing candid feedback to a party concerning the effectiveness and persuasiveness of its presentation of evidence and arguments. Such Arbitrator Interview shall be held after the final conclusion of the matter and be conducted telephonically or in-person at the election and expense of the requesting party. The Arbitrator will be compensated at the hourly rate that prevailed during the arbitration proceedings. Nothing in this section requires an Arbitrator to communicate in a way that violates ethical standards. Nothing disclosed by the Arbitrator in the Arbitrator Interview may be used as a basis to challenge the Arbitrator’s decision.
h. Retain jurisdiction to resolve issues between the parties concerning interpretation and application of the decision. Such post-decision issues shall be resolved based on written submissions only. A deposit for the arbitrator’s time to resolve a post-decision issue shall be set by the arbitrator and advanced by the requesting party with such deposit reimbursable in whole or in part at the arbitrator’s discretion.
Confidentiality. In order to protect the confidential, proprietary, and trade secret information of the parties, eMove and You agree to enter into a Confidentiality Agreement as negotiated by eMove and You. If eMove and You cannot agree on the Confidentiality Agreement, the Arbitrator shall have the sole responsibility for determining the appropriate scope of the Confidentiality Agreement. In no event shall the Confidentiality Agreement in any way prevent eMove or You from using any document marked as “confidential” in an Arbitration proceeding under this Agreement, subject to any ruling on admissibility by the Arbitrator.
AAA and Arbitrator Fees. Current filing fees are available at www.adr.org. Except as otherwise provided in this Agreement, eMove will pay all AAA filing, administration, and arbitrator fees to a maximum of $5,000 for any Arbitration initiated in accordance with the Notice Procedure above. The Arbitrator shall have discretion to determine how fees in excess of $5,000 shall be attributed between eMove and You and whether any portion of fees prepaid by eMove shall be reimbursed by You to eMove.
Attorneys’ Fees and Costs. Nothing in this Agreement limits the right to attorney’s fees and expenses You may have under applicable law. However, You may not recover duplicative awards of attorney’s fees or costs. Although under some laws eMove may have a right to an award of attorney’s fees and expenses if it prevails in Arbitration, eMove agrees that it will not seek such an award unless the Arbitrator determines that your Claims or relief sought are frivolous or brought for an improper purpose as measured by the standards set forth in Federal Rules of Civil Procedure 11(b).
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.
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.
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.
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.
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.
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.