Terms of service
Effective date: December 2022
Effective date: December 2022
A few highlights of this Agreement includes:
As referred to herein, the “EFS Platform” is defined as any and all related services provided by Company, the Site, and Apps, including without limitation communications and information (whether in writing, orally, or otherwise howsoever) provided by Company to potential and actual Clients in relation to the services.
The term of this agreement shall be either monthly, quarterly, or annually depending upon Membership Plan selected. For clarity, an Annual Membership Plan term is twelve (12) months, a Quarterly Plan term is three (3) months, and a Monthly Plan term is one (1) month. Upon expiration of the Initial Term, this Agreement will automatically renew for successive terms (the Initial Term, and each renewal term being the “Term”); provided that either party may terminate this Agreement upon the expiration of the Initial Term or a renewal term by providing 30 days written notice to Client’s account manager prior to the expiration of the Initial Term or the then-current renewal term.
(a) it determines the Work Product is acceptable, in which case it will promptly inform EFS of the same via the dashboard;
(b) Client fails to notify EFS of its rejection during the Inspection Period; or
(c) if Client uses or attempts to use the Work Product or any work derived from it beyond what is necessary for inspection and/or in any way that a reasonable person would consider consistent with accepting the Work Product.
6.a. Payment Details. Client will be required to provide their payment method details to Company or another mechanism as agreed upon, including as described in any invoice. Clients are solely responsible for providing and maintaining accurate contact and payment information. To the extent payment is late or any of the above terms are violated, EFS reserves the right to terminate the contract effective immediately. Client will be liable for any taxes required to be paid on the Tasks provided under the Agreement.
6.b. Authorization for Payments and Convenience Fees. Client hereby authorize and request Company to make automatic and recurring electronic debit entries (“Payment”) or credit card charges for your use of the EFS Platform in the amount and on the dates agreed upon between you and Company and/ or as further described in this Agreement, your Order Form, including any amendment, extensions, or related agreements thereto, or in accordance with any alternative amounts or payment schedules to which you and Company agree. You agree that this authorization will remain in effect until all amounts due and owing are paid. You further authorize Company to initiate a separate Payment to the account for any other fee or charge due under the Agreement that you subsequently incur. Client hereby authorizes and agrees to pay a 3% credit card convenience fee for any and all credit card charges to offset fees charged by credit card merchants.
6.c. Authorization to Vary Amounts. Client authorize Company to vary the amount of any Payment pursuant to the Agreement so long as such Payment is less than the pre-authorized amount or no greater than 125% of such amount, unless you exercise your right to receive advance notice of any Payment that will vary from the amount authorized above. To exercise this right, please provide Company with written notice at firstname.lastname@example.org
6.d. Revocation or Termination of Payment Authorization. Client may revoke this payment authorization by providing Company written notice at email@example.com in such time to afford Company and your financial institution a reasonable opportunity to act on your request. In any event Company will typically comply with revocation requests within three business days after receipt of written notice. In the event of revocation, this Agreement requires you to set up another form of payment. Company may terminate this authorization at any time or for any reason, including an excessive number of returned payments. If you revoke this Authorization or you terminate electronic debits, you understand that you will be responsible for making payments by another payment method as required by this Agreement. Revocation or termination does not affect your duty to repay any amounts due under the Agreement.
6.e. Miscellaneous. You promise you are an authorized signer on the Account. You acknowledge that this Authorization is subject to applicable law and network rules. 7. Dates of Performance. Company will begin performing services upon receipt of signed Agreement and Deposit. Unless terminated as provided in this Agreement, Company will complete Services by the Completion Date. Deliverable shall be furnished to Client within 72 hours of final payment for the Services.
No Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE EFS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO EFS’s SERVICES, TASKS, PRODUCTS ANY OTHER ITEM DELIVERED UNDER THIS AGREEMENT.
(a) Use Of The Services Is Entirely At Your Own Risk
SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EFS MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE EFS PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE EFS PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE EFS PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
EFS does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the EFS Platform or any hyperlinked website or featured in any banner or other advertising, and EFS will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, EFS and Affiliates do not warrant that access to the EFS Platform will be uninterrupted or that the EFS Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the EFS Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Services, Tasks,, information or materials provided through or in connection with the use of the EFS Platform. EFS and Affiliates are not responsible for the conduct, whether online or offline, of any User. EFS and Affiliates do not warrant that the EFS Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. EFS and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
(b) No Liability
Client acknowledges and agrees that EFS is only willing to provide the Services if Client agrees to certain limitations of our liability to Client and third parties. Therefore, Client agrees not to hold EFS and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to Client or any other party’s use of or inability to use the Services or EFS Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any Client (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any Client, any instruction, advice, act, or service provided by EFS and Affiliates and any destruction of your Client’s Generated Content.
UNDER NO CIRCUMSTANCES WILL EFS AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY EFS, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH CLIENT’S USE OF OR INABILITY TO USE THE EFS PLATFORM OR THE TASK SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
EFS AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS EFS PLATFORM. EFS AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE EFS PLATFORM.
COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO COMPANY HEREUNDER.
Some jurisdictions do not allow the exclusion of certain warranties or limitation of liability for consequential or incidental damages, so certain aspects of the limitations above may not apply to you.
EFS hereby grants to Client, for the Term of this Agreement, a limited, non-exclusive and non-transferable right to allow Client or End Users to access and utilize the Services and Tasks via the service platform accessible. EFS may terminate an End User or Client’s access to the Services or Tasks and right to access and use the service platform if EFS, in its sole discretion, determines that the Client or End User has exceeded authorized access to the Services or has taken any action that would be considered a violation of this Agreement or the terms of any schedule or Order Form entered into by the parties. Each party acknowledges that EFS owns its Services, including all rights related to or arising from the service platform. Each party further acknowledges that EFS owns or has the right to use the content and the information that Company provides through the service platform. Except for the licenses granted in this Agreement, this Agreement does not confer to Client any right of ownership in the Services. Client acknowledges that subject to the TOU, the Services, the Tasks, service platform, and the Content (excluding client information) are proprietary in nature and owned exclusively by EFS.
Services may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Company or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the EFS Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Company does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is the Client’s responsibility to evaluate the content and usefulness of the information obtained from other websites. Client acknowledges and agrees that EFS is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, Client acknowledges and agrees that EFS has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the EFS Platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. If Client chooses to use such third party sites or services, Client enters into an agreement with such third party alone at Client’s own risk. EFS is additionally not responsible for any payment that may be asked of Client by such third parties. EFS expressly disclaims any liability arising in connection with Client’s use and/or viewing of any websites or other material associated with links that may appear on the EFS Platform. You hereby agree to hold EFS harmless from any liability that may result from the use of links that may appear on the EFS Platform.
In Company’s sole discretion, Client may be subject to an extensive vetting process before they can register for and during their use of the Services, including but not limited to a verification of identity, using third party services as appropriate (“Identity Checks”). Although Company may perform Identity Checks, Company is not required to do so and cannot confirm that each Client is who they claim to be. Company cannot and does not assume any responsibility for the accuracy or reliability of Identity Check information or any information provided through the EFS Platform or Services.
When interacting with other clients, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. EFS will not be liable for any false or misleading statements made by clients of the EFS Platform. NEITHER EFS NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “EFS AND AFFILIATES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE EFS PLATFORM AND YOU HEREBY RELEASE EFS AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE EFS PLATFORM.
Client represents and warrant that: (1) client is 18 years of age or older (for U.S. based users) or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (2) Client has the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that Client will so abide. Where Client enters into this Agreement on behalf of a company or other organization, Client represents and warrants that Client has authority to act on behalf of that entity and to bind that entity to this Agreement.
Client further warrants and represents that, other than as fully and promptly disclosed to Company as set forth below, Client does not have any motivation, status, or interest which Company may reasonably wish to know about in connection with the EFS Platform, including without limitation, if Client is using or will or intend to use the EFS Platform for any journalistic, investigative, or unlawful purpose. Client hereby warrants and represents that Client will promptly disclose to Company in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the EFS Platform.
“User Generated Content” is defined as any information and materials you provide to Company, its corporate partners, or other Users in connection with your registration for and use of the EFS Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that EFS is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that EFS has no obligation to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the EFS Platform at its sole discretion
Client hereby grants Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights Client has in your Client Generated Content, in any media now known or not currently known in order to perform and improve upon the EFS Platform.
The EFS Platform may host Services relating to reviews and ratings of specific individuals or entities who have been involved with completing tasks (“Feedback”). Such Feedback is such Client’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake their own research to be satisfied that a specific person or entity is the right person for a Service. Client agrees that Company is not responsible or liable for any Feedback or other Client Generated Content. Company is not obligated to investigate any remarks posted by Client’s for accuracy or reliability but may do so at its discretion.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. EFS will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
Client consents to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or updating Terms of Service on the website. Client agrees that all Notices that Company provides electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions, please contact us by email at firstname.lastname@example.org
(a) Informal Negotiations
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and EFS (each a “Claim” and collectively “Claims”), you and EFS 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. This pre-arbitration negotiation shall be initiated by providing written notice to the other party—including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to EFS, Inc., [Insert] Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or EFS may initiate arbitration while engaging in the informal negotiations.
During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
After a good faith effort to negotiate, if you or EFS believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”).
(b) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND EFS 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 this section (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of this Agreement and your relationship with Company.
Claims covered by this Arbitration Agreement 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 EFS Platform, services, or Tasks; your relationship with EFS; the threatened or actual suspension, deactivation or termination of your 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 or offers made by Company; breach of any express or implied contract or breach of any express or implied 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.
If there is a dispute about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of this arbitration agreement), you and EFS agree that this threshold dispute shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disputes, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND EFS ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, UNLESS EXPRESSLY EXCLUDED 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 THE TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and EFS agree that any arbitration will be limited to the Claim between EFS and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND EFS ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and EFS 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. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Company, which are addressed separately in the section below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), 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: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain 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) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the AAA Rules 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. You and EFS agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
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’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.
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.
(ii) If a Client 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 AAA filing and arbitration 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)).
(iii) If a Client files a Claim in accordance with this Arbitration Agreement and the associated claim for damages exceeds USD $10,000, 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, and the Client 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 they perform Tasks, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose, however, then the allocation of fees will be governed by the applicable AAA Rules.
(iv) Except as required by law or the applicable AAA Rules, 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 Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(v) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Company agree otherwise, 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.
(e) Exceptions to Arbitration
The following types of Claims may be, but are not required to be, arbitrated under the Arbitration Agreement:
Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
Applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
Claims that may not be subject to arbitration as a matter of general law not preempted by the Federal Arbitration Act.
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 Agreement and do not prevent you from receiving an award for information provided to any government agencies.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND EFS CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 19 OR 20, AS APPLICABLE). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 19 OR 20, AS APPLICABLE) AND YOU ACCEPT ALL OF ITS TERMS.
EXHIBIT A – Service Availability.
Team Member Communication
1 Business Day (s)
1 Business Day (s)
*In limited instances, Response Times may reach three (3) business days. Should EFS fail, on any one or more occasions, to deliver any one or more Services to Client in accordance with all of the terms and conditions contained herein or in the applicable Terms of Service, Client’s sole and exclusive remedy for such failure shall be as set forth in the SLA. No such failure shall be considered a Default by EFS under the Agreement.
EXHIBIT B – TERMS OF SERVICE
You may register with Company and create an account to use the EFS Platform (an “Account”). You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Company for accessing the EFS Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. If you are accessing and using the EFS Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms provided herein. Company has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to contact Company immediately.
By providing your mobile phone number and using the EFS Platform, you hereby affirmatively consent to EFS’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (a) perform and improve upon the EFS Platform, (b) facilitate the carrying out of Tasks through the EFS Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Tasks, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming Tasks and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Apps, texting “STOP” in response to any texts, or by emailing email@example.com and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing firstname.lastname@example.org and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
You hereby represent and warrant to Company that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not represent you being employed or directly engaged by or affiliated with EFS or purport you to act as a representative or agent of EFS; and (i) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
This paragraph applies to any version of any application that you acquire from the Apple App Store. This Agreement is entered into between you and the Company. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the any such application acquired from the Apple App Store. The Company, not Apple, is solely responsible for the Services and any such application and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of EFS and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the EFS Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You are responsible for any breach of your authorized employees or agents. You shall promptly notify EFS in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to EFS upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of EFS’s trade secrets, confidential and proprietary information, and all other information and data of EFS that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to EFS or EFS’s business, operations or properties, including information about EFS’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
Security and Data Protection. Notwithstanding anything contrary in the Agreement, EFS shall implement and maintain a mutually agreeable information security and protection program that incorporates administrative, technical and physical safeguards which are designed to ensure the security, confidentiality and integrity of the data received from Client against reasonably anticipated threats and hazards, including from accidental or unauthorized loss, access or disclosures. EFS shall not retain, in any format, electronic or otherwise, any data beyond what is required in connection with the implementation and execution of the services in order to perform its obligations pursuant to this Agreement and as required by applicable laws.
In the event Client suffers any loss, corruption or misuse of the data that EFS receives from Client that is caused by EFS’s breach of this Agreement, gross negligence or willful misconduct(“Data Loss”), (i) we will promptly take reasonable steps to mitigate the effects and minimize any damage resulting from such Data Loss, prevent any further Data Loss, (ii) we will provide any notifications to third-parties required by applicable law, and (iii) we shall cooperate with you and make reasonable efforts to assist and cooperate with your response efforts