This Terms of Service, as amended from time to time, (the “Terms of Service”) and the Order Form attached hereto (“Order Form”), and the Privacy Policy together with any documents and/or schedules sets forth terms and conditions herein (collectively with the Terms of Service and Order Form, the “Agreement”) under which Efficient Frontier Solutions Inc. (“Company” or “EFS”) shall provide Services to the above referenced Client (hereinafter referred to as “Client,” “You,” “Your,” or “User”).

A few highlights of this Agreement includes:

• Your agreement that the EFS Platform and Services are provided “as is” and without warranty 
• Your agreement to indemnify Company from claims due to your use or inability to use the EFS Platform or content submitted from your account to the EFS Platform 
• Your consent to submit any claims against Company to binding arbitration, and on an individual basis only, to the extent permissible by law.
• Any personal data you submit to the EFS Platform or which we collect about you is governed by our Privacy Policy (“Privacy Policy”). Please see EXHIBIT C. You acknowledge that by using the Services you have reviewed the Privacy Policy.
• You must be 18 years old and otherwise capable of entering into binding contracts, in order to use or access the EFS Platform. If you are under 18 years old then you may not use or access the EFS Platform. Children under 13 years old are prohibited from accessing the EFS Platform or otherwise providing any personal information to EFS

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. 

• Services Period.

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.  

1. Services. The Services outlined in the Order Form reflect the initial understanding of Client’s desired Deliverable and Company reserves the right to alter the manner in which Services are provided if Company determines different services are necessary to complete the Deliverable.  This Agreement applies to any and all Order Forms. 
2. Deliverables. Deliverables. EFS may provide access to products or services, which may be short term tasks or longer term projects (collectively referred to herein as “Tasks”).

1. Inspection and Acceptance: The specific deliverables and schedule for delivery shall be as agreed upon in between the parties.  EFS reserves the right to prioritize work requests and negotiate delivery dates.  

• Inspection. Client will have seven (7) calendar days to inspect a task or project each time EFS makes it available for inspection (the “Inspection Period”); provided the Inspection Period will end upon acceptance of the project or task.
• Acceptance. Client will be deemed to have accepted the Work Product if:

(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.

• Rejection: Client may only reject the Work Product if it contains material defects. Client will reject the Work Product promptly upon discovery of any such defects by informing EFS in reasonable detail via the Website.

1. Travel. If the Deliverable will be completed according to a fixed price agreement and travel is required, then Client must sign the Agreement and pay the required Deposit at least 30 days prior to proposed travel. If the Agreement is not signed and Deposit is not received at least 30 days prior to proposed travel, Company reserves the right to amend the Agreement estimate solely with regard to travel and lodging expenses so that the agreement estimate reflects actual costs incurred by Company.
2. Contract Price. For performance of the Services and rendering the Deliverable, Client shall pay to Company all fees due under the applicable services outlined in the Order Form.

• Deposit. An initial payment (the “Deposit”) is due to the Company at signing. 50% of the Deposit shall be non-refundable in the event that Client cancels the project prior to its completion. 
• Rolling Credits.  On an Annual Membership, all credits expire one (1) year from the purchase date.  On a Quarterly Membership, all credits will expire within three (3) months from the purchase date.  Monthly Membership credits expire one (1) month from the purchase date.  Otherwise, Client may only use Credits for a given subscription period if it has paid the applicable subscription fee.  Rolling Credits are subject to change.

1. Payment Terms. Any payment not received by EFS within 14 days of the date of receipt of the invoice will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.  Failure to pay any amount(s) owed when due may also result in suspension of the Services or Tasks. Payment obligations are non-cancelable and fees paid are non-refundable.  Unused credits are forfeited upon cancellation. In exchange for Company’s Services under this Agreement, the Client shall pay Company the contract price and deposit set forth above. Company will submit a final invoice to Client for all services rendered by the Services Completion Date and Client shall promptly pay. Client is restricted from using any form of the Deliverable until final payment is received. Client shall pay travel and other expenses incurred by Company in performing the Services. In the event of a good faith dispute with regard to an item appearing on an invoice, Company shall have the right to withhold the Deliverable while the parties attempt to resolve the disputes. By signing this Agreement you are electronically signing and agreeing to this billing authorization and authorizing Company to electronically debit your Account on a recurring basis.  You acknowledge that you have read, printed/saved, understand and agree to be bound by the terms of this Authorization

 

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 hello@nicksonnenberg.com

6.d. Revocation or Termination of Payment Authorization. Client may revoke this payment authorization by providing Company written notice at hello@nicksonnenberg.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.

1. 1. Non-Solicitation. Client agrees that during the term of this Agreement and for a period of twelve months after termination of this Agreement, Customer shall not solicit, discuss employment or consultancy, or hire for a position relating to the services or activities actually provided to Client, any employee of EFS, without written authorization of EFS.  This section shall not apply to general solicitations, public job postings, or newspaper advertisements for employment opportunities.
   2. No Contractor Hires. Client agrees not to directly or indirectly employ or engage as an independent contractor any of EFS’s employees or contractors during the term of this Agreement and for a period of twelve (12) months thereafter without the prior written consent of EFS. Should Client violate this section, Client shall pay EFS a fee in the amount of 25% of the employee or contractors annualized compensation including bonuses.

   3. Change in Services. If the Client desires to initiate changes to the services outlined in this Agreement, it shall submit to the Company a written request to do so. The request will set forth the nature of the Company’s proposed changes to the services. Contractor shall complete and return to the Company a written document (“Change Order”) setting forth (i) a written description of the changes to the services, (ii) any changes to the schedule, (iii) any changes or additions to the Deliverables and (iv) any changes or additions to the fees. A Change Order will be binding only if signed by both parties. Any and all Change Orders will be governed by the terms and conditions set forth in this Agreement, and are hereby incorporated by this reference. Any additional Deliverables described in the Change Order will be subject to the Payment provisions as described in this Agreement.

   4. Termination. Company shall have the right to modify, reject, or terminate any services and any related work in process with five business days written notice to Client. In the event Company terminates the services prior to completion of Services, the Client shall pay Company the fees due as set forth in the Order Form and under the Services and Fees outlined in this agreement with respect to Services completed as of the date of termination. Payment for completed work will be deducted from the deposit. Company will retain the non-refundable 50% of the Deposit and return any unearned portion exceeding 50% of the Deposit. Any amount due for services performed by Company above the deposit will be billed to Client and Client shall promptly pay. Upon settlement of funds due to Company, all Client provided materials will be returned to Client and all Client use rights in the work in process as described in this agreement will be transferred to Client. Upon termination of this Agreement and subject to any reservation of rights herein, EFS agrees to delete all Client information except as necessary to comply with EFS’s document retention policy.  Further, upon termination of this Agreement, all rights and licenses granted hereunder shall cease, except as otherwise provided in this Agreement and the Terms of Use. Those provisions of this Agreement which, by their nature, are meant to survive termination shall so survive, and include without limitation provisions related to ownership of intellectual property, prohibitions on use, confidentiality, indemnification, limitation of liability, warranties and representations, governing law and venue. Unless otherwise terminated earlier in accordance with the terms of the Agreement, the Services will end upon the completion of the Services by Company, which in no event shall be later than [MM/DD/YYYY], and payment by Client.

   5. Termination for Material Breach. In addition to all rights and remedies available at law and/or equity, in the event of a material breach by a Party, the non-breaching Party, may terminate this agreement if the breach is not cured within thirty (30) days from receipt of written notice from the non-breaching Party of such breach. If Company terminates or limits Services pursuant to this section, Client is prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. If Company terminates or limits Client’s Services, Client will not be entitled to any refund of unused balance in your account. All outstanding payments will be immediately collected. Even after Services are terminated or limited, this Agreement will remain enforceable against Client. Company reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with this Agreement. Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Services at its sole discretion. Company is not liable to Client for any modification or discontinuance of all or any portion of the Services.

• Representations and Warranties.

• Company’s Representation: Company represents that any materials used in the Deliverable will not knowingly (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.
• Client’s Representation: Client represents that any materials provided to Company by Client for incorporation into the Deliverable will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.
• Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

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.

• Limitation of Liability.

(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.

1. Ownership of Deliverables. “Intellectual Property Rights” means any and all (a) rights associated with works of authorship, including but not limited to copyrights, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents and (c) all other intellectual property rights in any jurisdiction throughout the world. To the fullest extent permitted by law, Company retains ownership in all Intellectual Property rights of the Deliverable. Further, Company retains all ownership and Intellectual Property Rights to the raw video footage, music, images, and other components comprising the Deliverable for its future use. Upon full payment of the deliverable, Company grants Client a perpetual, non-exclusive and non-transferable license to use, copy, reproduce, display, or distribute the Deliverable. Client shall retain sole ownership of all Intellectual Property Rights in connection with any original material it provides to Company for use within the Deliverable. If termination occurs, Company shall retain ownership in all Intellectual Property Rights and to the raw video footage, music, images, and other components comprising the work in process up to the date of termination. After a termination and upon full payment for the work in process, Company will grant Client a perpetual, non-exclusive, and non-transferable license to use, copy, reproduce, display, or distribute the work in process. In no event will Company be liable for any claims related to or arising from Client’s improper use of the Deliverable, work in process, or the music, images, and other components that comprise the Deliverable or work in process.

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.

1. Except as otherwise expressly provided in this Agreement, no other license or right shall be deemed granted or implied with respect to EFS or EFS IP. Client agrees to abide by the rules and policies established from time to time by EFS.  Nothing herein will be construed as granting Client, by implication, estoppel or otherwise, any license or other right to any Intellectual Property Rights of EFS or its licensors except for the rights and license expressly granted herein. EFS and its licensors retain all rights not so granted.
2. Client acknowledges that EFS owns exclusively all rights related to or arising from EFS’s Marks (as defined below), and agrees that any use of EFS’s Marks by Client (to the extent permitted hereunder) will be solely for and will inure solely to EFS’s benefit.  “EFS’s Marks” means and includes all names, marks, brands, logos, designs, trade dress, slogans and other designations EFS uses in connection with its business, services and products.  Except as otherwise expressly stated in this Agreement, nothing in this Agreement will be construed as conferring any license to EFS’s Marks.
3. Indemnification. Client will defend, indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, expenses, and costs (including attorneys’ fees and court costs) arising from or relating to any claims regarding elements or materials provided by Client and incorporated into the Deliverable including (i) your use or inability to use the EFS Platform or perform Tasks, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your account to the EFS Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Additionally, Client will defend, indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, expenses, and costs (including attorneys’ fees and court costs) arising from or relating to any claims regarding Client’s unauthorized use of any music, images, or other materials comprising the Deliverable. 
4. Compliance with Laws. Each party shall perform all of its obligations under this Agreement in compliance at all times with all foreign, federal, state, and local statutes, orders, and regulations, including those relating to privacy and data protection.
5. 17. No Assignment. Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void. Any notice or consent under this Agreement will be in writing to the address specified below. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Both parties agree that the Agreement is signed by a duly, authorized company representative authorized to bind the company to its terms and services and no consent from any third party is required.
6. 18. Choice of Law. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in New York, NY, and each party irrevocably submits to the jurisdiction and venue of such courts.
7. Remedies. Company reserves all remedies available at law or equity for any disputes that arise under this Agreement. In the event of a suit or proceeding under this Agreement, Client agrees to pay all attorneys’ fees if the federal or state court renders judgment substantially in Company’s favor.
8. 20. Links to Third-Party Websites

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.

1. Client Vetting and Use Restrictions. 
2. Client Vetting

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.

1. Client Representations and Warranties

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

1. Public Areas.  Services may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Clients to communicate with other clients. Client may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the EFS Platform and Services, Client should not share its personal contact information or any sensitive information with other clients.
2. Client Generated Content.  Any information and materials Client provides to Company, its corporate partners, or other clients in connection with your registration for and use of the Services or EFS Platform, including without limitation that posted or transmitted for use in Public Areas is defined as “Client Generated Content. Client is solely responsible for Client Generated Content, and Company acts merely as a passive conduit for Client’s online distribution and publication of your Client Generated Content. Client acknowledges and agrees that EFS is not involved in the creation or development of Client Generated Content, disclaims any responsibility for Client Generated Content, and cannot be liable for claims arising out of or relating to Client Generated Content. Further, Client acknowledges and agrees that EFS has no obligation to monitor, review, or remove Client Generated Content, but reserves the right to limit or remove Client 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.

1. Use Restrictions. Without limitation, while using the EFS Platform or Services, Client may not:

• Defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including other Clients and EFS staff, or use information learned from the EFS Platform or during the performance of Services to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other client or Company staff;
• Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the EFS Platform;
• Use the EFS Platform or Services for any unauthorized purpose, including, but not limited to posting or completing a Task in violation of local, state, provincial, national, or international law;
• Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any client, third party, or Company;
• Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer;
• Post or upload any content to which Client has not obtained any necessary rights or permissions to use accordingly;
• Advertise or offer to sell any goods or services for any commercial purpose through the EFS Platform which are not relevant to the Task services offered through the EFS Platform;
• Post or complete a Task or Service requiring a Client to (i) purchase or obtain gift cards or money orders (ii) provide ridesharing or other peer to peer transportation services, (iv) post ratings or reviews on any third party website in breach of such third party website’s terms of use, or (v) otherwise engage in activity that is illegal or deemed dangerous, harmful or otherwise inappropriate by Company in its sole discretion;
• Conduct or forward surveys, contests, pyramid schemes, or chain letters;
• Impersonate another person or a client or allow any other person or entity to use your identification to post or view comments;
• Post the same Task repeatedly (“Spamming”) – Spamming is strictly prohibited;
• Download any file posted by another client that a Client knows, or reasonably should know, cannot be legally distributed through the EFS Platform;
• Restrict or inhibit any other client from using and enjoying the Public Areas;
• Imply or state that any statements Client makes are endorsed by EFS, without the prior written consent of EFS;
• Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the EFS Platform, or the electronic addresses or personal information of others, in any manner;
• Frame or utilize framing techniques to enclose the EFS Platform or any portion thereof;
• Hack or interfere with the EFS Platform, its servers or any connected networks;
• Adapt, alter, license, sublicense or translate the EFS Platform for your own personal or commercial use;
• Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by EFS and Affiliates;
• Upload content to the EFS Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
• Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
• Use the EFS Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the EFS Platform as set forth herein;
• Use the EFS Platform to collect usernames, email addresses, or other personal information of Users by electronic or other means;
• Use the EFS Platform or the Task services in violation of this Agreement;
• Use the EFS Platform in a manner that is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes;
• Attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the EFS Platform, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
• Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number; or
• Cause any third party to engage in the restricted activities above.

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

1. 22. Privacy Policy. Any personal data you submit to the EFS Platform or which we collect about you is governed by our Privacy Policy (“Privacy Policy”). Please see EXHIBIT C. You acknowledge that by using the EFS Platform you have reviewed the Privacy Policy.
2. No Agency; No Employment. No agency, partnership, joint venture, independent contractor, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
3. No Waiver. No delay or omission by EFS to exercise any right or power hereunder shall impair such right or power or be deemed as a waiver thereof.
4. No Rights of Third Parties

None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.

1. Notices and Consent to Receive Notices Electronically

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 hello@nicksonnenberg.com

1. Dispute Resolution. Arbitration & Class Action Waiver (U.S. Users). USERS RESIDING IN THE UNITED STATES: PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND EFS CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND EFS TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.

 

(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.

 

1. SEVERABILITY AND INTEGRATION. Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Company with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” section in this agreement, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions.

EXHIBIT A – Service Availability.

 

CONTACT	RESPONSE TIME*
Team Member Communication	1 Business Day (s)
Client Success	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.

 

1. EFS’s Obligations.  EFS agrees to the following: 

• Provide Client with however many EFS team members necessary to complete the job
• Match EFS’s Team Members to Task based off EFS data of skillsets and previous experience
• Maintain records up to a year if current Client
• Upon termination of this Agreement and subject to any reservation of rights herein, EFS agrees to delete all Client information except as necessary to comply with EFS’s document retention policy.

 

1. Client Obligations.  

• Client will use the Tasks and Services pursuant to and only for the purposes set forth in this Agreement and will comply with all applicable laws.  Client will not use, nor will Client permit any End User to use, the Services for any unlawful purpose or in furtherance of any unlawful purpose.  If EFS has reasonable grounds to believe that Client or any End User is using the Services or requesting a Task for any improper purpose, EFS may suspend or terminate the Services and Task immediately upon notice to Client.

 

• Client shall register with EFS and create an account to use the EFS Platform (an “Account”). Client is the sole authorized user of their account. Client is responsible for maintaining the confidentiality of any log-in, password, and account number provided by Client or given to Client by EFS for accessing the EFS Platform. Client is solely and fully responsible for all activities that occur under their password or account, even if not authorized by Client. If Client is accessing and using the EFS Platform on someone else’s behalf, Client represents that they have the authority to bind that person as the principal to all Tasks, terms, and responsibilities provided herein and in the TOU. EFS has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should Client suspect that any unauthorized party may be using their password or account or the Client suspect’s any other breach of security, Client agrees to contact EFS immediately.
• Consent to provide EFS team members access and authorization to necessary systems, documents and credentials in order to provide Tasks.
• Provide detailed scope of work 
• Respond to EFS team members in a timely manner when related to a project task, providing appropriate Task details, feedback on Task, and appropriate details to allow EFS to successfully complete the Task.

EXHIBIT B – TERMS OF SERVICE

1. Mobile App Updates and Upgrades

By installing one of the Apps, you consent to the installation of the App and any updates or upgrades that are released through the EFS Platform. The App (including any updates or upgrades) may (i) cause your device to automatically communicate with EFS’s servers to deliver the App functionality and to record usage metrics, (ii) affect App-related preferences or data stored your device, and (iii) collect personal information as set out in our Privacy Policy. You can uninstall the App at any time.

 

2. Account, Password, Security, and Mobile Phone Use

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 hello@nicksonnenberg.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 hello@nicksonnenberg.com 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.

3. Apple

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.

4. Confidential Information 

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.

EXHIBIT C – PRIVACY POLICY

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