Welcome to the ProNear Site (defined below). By using it, you are agreeing to these Terms of Service (defined
below). Please read them carefully. If you have any questions, (ProNear Inc. 11301 W. Olympic Blvd. Ste 725.
Los Angeles, CA 90064).
These Terms of Service were last updated on [June 1st, 2017].
ProNear Inc. (ProNear APP / ProNear PLATFORM), (hereinafter referred to as "ProNear", "we", "us", or "our")
provides a digital marketplace in the United States of America (the "Services") which includes, and is accessible via, (i) the website published at http://www.ProNear.com
(and any other websites with ProNear branding that link to these Terms) (collectively, the "Site") and
(ii) mobile-device applications that are branded as ProNear and link to these Terms (collectively, the
“Application”). The Services, for example, allow users to access coupons of certain third-party merchants
(“Merchants”) for online or in-store use. By using the Services, you agree to comply with and be legally
bound by the terms and conditions of these Terms of Service ("Terms"), whether or not you become a
registered user of the Services. These Terms govern your access to and use of the Services, and constitute a
which may be found at [www.ProNear.com], and which is incorporated by reference into these Terms.
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 20) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PRONEAR PLATFORM.
IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, IMMEDIATELY STOP USING THE SITE AND DO NOT USE ANY PRONEAR SERVICE, PARTICIPATE IN ANY PROGRAM OR PURCHASE ANY VOUCHER, PRODUCT OR OTHER GOOD OR SERVICE OFFERED THROUGH THE SITE.
ProNear may change these Terms from time to time, at ProNear’s sole discretion. Your continued use of the App following the posting of such changes will constitute your assent to all such changes to these Terms. Please periodically visit this section of the App to review the current version of these Terms. [www.ProNear.com]
We may revise and update these Terms of Service from time to time in our sole discretion. All changes are
effective immediately when we post them, and apply to all access to and use of the Website thereafter.
However, any changes to the dispute resolution provisions set forth in “Governing Law and Jurisdiction”
will not apply to any disputes for which the parties have actual notice on or prior to the date the change
is posted on the Website.
Your continued use of the Website following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time/frequently/each time you access this Website so you are aware of any changes, as they are binding on you.
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website,
in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website
is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the
Website, or the entire Website, to users, including registered users.
You are responsible for:
To access the Website or some of the resources it offers, you may be asked to provide certain registration
details or other information. It is a condition of your use of the Website that all the information you
provide on the Website is correct, current and complete. We reserve the right to suspend or terminate your
use of the site, your account, and/or refuse future site usage if We, in our sole discretion, have reason to
any provided information is untrue, inaccurate, not current or incomplete.
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.
Access to and use of the ProNear Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you are eligible.
AGE AND RESPONSIBILITY. If you register with ProNear using the Platform, you are responsible for maintaining the confidentiality of your account information and your password. You agree to accept responsibility for all activities that occur under your account or password. You represent that you are of sufficient legal age to use the Platform and to create binding legal obligations for any liability you may incur as a result of the use of the Platform. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. Users under 18 years of age are absolutely prohibited from registering with ProNear and using the Platform.
The Website and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:
You must not:
You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.
If you wish to make any use of material on the Website other than that set out in this section, please address your request to: [email]
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Service, your right to use the Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark and other laws.
The Company name, the terms ProNear, ProNear.com, The easiest way to get things done, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
You may use the Website only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Website:
Additionally, you agree not to:
ProNear, as permitted by applicable laws, obtains reports based on publicly available information regarding Pros, which may include history of criminal convictions or sex offender registration, and we may limit, block, suspend, deactivate, or cancel a Service Member’s account based on the results of such a check. As a Pro, you agree and authorize us to use your personal information, such as your full name and date of birth, to obtain such reports from ProNear's vendors.
The ProNear Platform is a web-based communications platform which enables the connection between Users and Pros. “Users” are individuals and/or businesses seeking to obtain Pro services (“Services”) from Pros and are therefore clients of Pros, and “Pros” are individuals and/or businesses seeking to provide Services for Users. Users and Pros together are hereinafter referred to as “Users.” If you agree on the terms of a Service with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
PRO’S ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF COMPANY. COMPANY DOES NOT PERFORM SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A PRO’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE SERVICES IN ANY MANNER.
The ProNear Platform only enables connections between Users for the fulfillment of Services. Company is not responsible for the performance of Pros, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Services, Pros, Users, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Services requested and services provided by Users identified through the ProNear Platform whether in public, private, or offline interactions.
In the Company’s sole discretion, Users & Pros may be subject to an extensive vetting process before they can register for and during their use of the ProNear Platform, including but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. Users hereby give consent to Company to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although Company may perform background checks of Users, as outlined above, Company is not required to do so and cannot confirm that each User is who they claim to be and therefore, Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the ProNear Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PRONEAR PLATFORM AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PRONEAR PLATFORM.
You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a Service with another User. The terms of the Service Agreement include the terms set forth in this Section, the engagement terms proposed and accepted on the ProNear Platform, and any other contractual terms accepted by both the Pro and the User to the extent such terms do not conflict with the terms in this Agreement including this Section and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company (ProNear Inc.) is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Pro.
Where approved in advance by the Client, the Pro is not obligated to personally perform the Services. Before any services are performed by any assistants, helpers, subcontractors or other personnel (collectively “Assistants”) engaged by the Pro, the Pro shall require any such individuals to become a registered Pro on the ProNear Platform pursuant to Company policies as described on the ProNear Platform. A Pro’s failure to bring an Assistant who is not a registered Pro could lead to removal from the platform. The Pro assumes full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable state and federal income tax withholdings as to the Pro and all persons engaged by the Pro in the performance of the Service.
The Pro shall pay their assistant directly for completed Services through the PSP (as defined below) as indicated on the ProNear Platform at the rates agreed to by the parties in the Service Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a Service. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding between the parties.
Users of the ProNear Platform contract for the Services directly with Pros. ProNear is not a party to any contracts for the Services. The ProNear Platform facilitates these contracts by supplying a medium through which Users can connect with Pros, schedule the Services, and make payments for the Services directly from the User to the Pro. Notwithstanding the foregoing, Users may not circumvent the ProNear Platform by using the ProNear Platform to connect with Providers and then engage those Providers for Services outside of the ProNear Platform.
1. ProNear Guarantee
Our ProNear Guarantee is that the Service you order and pay for will be performed as described in the description of the Service when you ordered it. If you have ordered and paid for a Service but you believe the Service was not performed in accordance with the ProNear Guarantee you must report the issue within twenty-four (24) hours of the Service appointment to our Support Center at firstname.lastname@example.org and respond to all follow up questions requested of you from the Support Center and you may be eligible for the ProNear Guarantee Remedies. The " ProNear Guarantee Remedies" are as follows: if we determine that a Service does not meet the ProNear Guarantee we will, in our sole discretion, either refund the payment you actually made for such Service, or have the applicable Service re-performed. If the Service is re-performed but we determine the re-performance still does not meet the ProNear Guarantee, we will refund the payment actually made for such Service. The amount of the ProNear Guarantee is limited to any payment you made for the Service. The ProNear Guarantee does not apply to any other cost, liability, damage, injury, or claim arising from or in connection with the Services. To be clear, the ProNear Guarantee does not apply to any payments made for Services not scheduled and paid for through the ProNear Platform. THIS SECTION 5 STATES PRONEARS SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES.
1. Service Cancellation
ProNear ‘s cancellation policy for specific Services is as follows:
1. Cancellation by Customer. As a Customer, you may cancel your scheduled Service appointments through the App at any time, subject to the following:
1. Services Booked 24 Hours in Advance
4. Services Booked Less 24 Hours in Advance
3. Cancellation by Provider. As a Provider, you may cancel your scheduled Service appointments through the App. If you are more than 15 minutes late for a scheduled appointment (note: the scheduled time for a Now appointment is 1 hour from the time you are selected by your Customer) or fail to complete a scheduled Service, you shall be deemed to have cancelled such appointment. When you cancel a scheduled Service appointment, the ProNear Platform generally notifies your Customer to resubmit the request for Service. ProNear cannot guarantee that a cancelled Service appointment will be selected by another Provider and rescheduled or that the Service request will be completed. Thus, your cancellation or failure to timely show up to perform a scheduled appointment could negatively impact your Customer and the Platform. As a result, such conduct may adversely impact your rating among Customers. PLEASE BE ADVISED THAT YOUR CANCELLATION OF (A) ANY “NOW” APPOINTMENTS, (B) ANY SCHEDULED APPOINTMENTS ON LESS THAN 24 HOURS NOTICE, OR (C) TWO OR MORE SCHEDULED APPOINTMENTS WITHIN A 30-DAY PERIOD IS A VIOLATION OF THE TERMS OF THIS AGREEMENT, WHICH MAY RESULT IN THE SUSPENSION OR DEACTIVATION YOUR PROVIDER ACCOUNT.
1. Provider Access Fee
As a Provider, you are required to pay a monthly access fee during any calendar month in which you complete a Service. The access fee shall be $2.99 per month (the "Access Fee"). You instruct and authorize ProNear to deduct the Access Fee from the Job Fee of the first job(s) you complete in a calendar month. You acknowledge that ProNear reserves the right, at any time, to modify its Access Fees and billing methods.
To help maintain the quality of the ProNear Platform, Users (both Providers and Customers) will have the opportunity to rate each other after the completion of Services. If you rate your Provider or Customer with less than 3 stars, such User will be excluded from your future Service requests. Customers will see Provider ratings before selecting a Provider for a job so each rating a Customer gives can have an impact on that Provider's future on the ProNear Platform. In addition, Customers with a low star rating may not have their requests accepted.
If you believe that any User Contributions or information location tool violates your copyright, please provide us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers.
Our designated agent to receive notifications of alleged infringement is:
[ProNear Inc. , email@example.com]
We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.
This Website may provide certain social media features that enable you to:
You may use these features solely as they are provided by us solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Service.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links to coupons; links contained in advertisements, links in banner advertisements, and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY COUPONS, SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, ANY COUPONS, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, COUPONS MADE AVAILABLE ON THE SITE, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services and products other than as expressly authorized in these Terms of Service or your use of any information obtained from the Website.
AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, control or monitor a Pro’s work or Services performed in any manner. Company does not set a Pro’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a particular Task. Company does not provide any supervision to Users.
The ProNear Platform is not an employment service and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Pro’s services.
(a) Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Company (each a “Claim” and collectively “Claims”), you and Company agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Company. Company’s address for such notices is ProNear Inc. 11301 W. Olympic Blvd. Ste 725, Los Angeles, CA Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Company may initiate arbitration while engaging in the informal negotiations.
(b) Binding Arbitration.
YOU AND COMPANY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate, contained in Section 20, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Company. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the ProNear Platform, services, Tasks, your relationship with Company, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by Company, breach of any express or implied contract or breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief.
You and Company agree that any arbitration will be limited to the Dispute between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Company otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against the Company which are addressed separately in Section 20 (d) below. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent allowed by law: (1) you and Company agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Company agree that any such Dispute will be resolved in arbitration on an individual basis only (that is, to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Pro’s or Users, but is bound by rulings in prior arbitrations involving the same Pro or User to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Company initiates arbitration under this Arbitration Agreement, Company will pay all AAA filing and arbitration fees. If a User or Pro, however, files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD 10,000, Company will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); (ii) For Claims that (A) are based on an alleged employment relationship between Company and the Pro; (B) arise out of, or relate to, the Company’s actual or threatened deactivation of a Pro’s User account; (C) arise out of, or relate to the Company’s actual or threatened termination of a Pro’s Agreement with the Company; or (D) arise out of, or relate to, monies earned or paid for Task services (as defined above, including the service chare or Trust and Support Fee), tips, bonuses or monies owed by Clients or Company to a Pro, other than disputes relating to referral bonuses, other Company sponsored promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Pro Claims”), Company shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Company pursuant to the fee provisions above). However, if you are the party initiating the Pro Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Clients, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection 20(e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. (iii) Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Dispute(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). (iv) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Unless you and Company agree otherwise, any arbitration hearings between Company and a Pro will take place in the county of your billing address, and any arbitration hearings between Company and a Client will take place in the county in which you received Task services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. However you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in Section 20(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
You may opt out of the Arbitration Agreement by notifying Company in writing within 30 days of the date you first registered for the ProNear Platform or 30 days from the date this Agreement was last updated. To opt out, you must send a written notification to Company at ProNear Inc. 11301 W. Olympic Blvd. Ste 725, Los Angeles, CA 90064 Attention: Legal, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
21. Governing Law
Except as provided in Section 20 or expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles.
No waiver of by the Company of any term or condition set forth in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
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