HOMEPAIRED’S TERMS OF SERVICE Last Updated: 07/19/2019
Thank you for using Homepaired! Please take the time to read our Terms – we’ve tried to make them as comprehensive and jargon free as possible, and you will learn a lot about how our platform works and your responsibilities as a user of our platform.
THESE TERMS AND CONDITIONS constitute a legally binding agreement (the “Agreement”) between you and Homepaired Inc. (referred to as “Homepaired”, the “Company”, “we”, “us”, “our” in this Agreement) which provides services through an internet website accessible via the url: www.homepaired.com (the “site”, “platform“). These Terms shall apply to all parties that register to use our platform and services that we make accessible through the site. These terms apply to Childcare Providers (“homepairs”) and parties hiring and employing Homepairs (“families”) alike (collectively known as “users”), with full and equal force and effect. These terms shall also apply to any/all assignees, successors, beneficiaries, and any/all permissive users of the Website or of the accounts maintained thereon. We reserve the right to modify and amend these Terms at any time and will make this clear by updating the “Last Updated’ date at the top of these Terms.
By agreeing to these Terms of Service you acknowledge that you have received and reviewed, and agree to be bound and to fully comply with them. You understand, acknowledge, and agree that should we find that you are in breach of these Terms, the Company shall reserve the right to remove your account from the Website, terminate any existing service relationships you have formed through the Company, and seek reimbursement for any damages, costs or expenses incurred by the Company which arise from your breach of these terms.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU SHOULD NOT USE HOMEPAIRED’S SERVICES OR VISIT HOMEPAIRED’S WEBSITE.
Table of Contents
1. Scope of Homepaired Services
2. Registration, eligibility to use our Site and verification
4. Service booking fees
5. Terms specific to homepairs: Employment
6. Terms specific to families: Employment
7. Background checks
8. Early termination and rematching
9. Prohibited Activity: Circumvention of our Service
12. Binding Arbitration
13. Intellectual Property Policy and Site Services.
14. General Provisions
1. Scope of Homepaired Services
1.1 Homepaired is an online marketplace for registered users to search, find, and book live-in childcare, and provides optional tools and useful features that users can leverage to communicate and transact directly with each other and monitor live-in childcare activity throughout the arrangement. Our services can be summarized as follows:
- We enable registered users to setup profiles that allow users to freely search for each other based on their needs and preferences
- We require families to confirm they have run background checks on themselves and the homepair during the booking process and support their hiring decision, and the homepair has had an opportunity to review these checks prior to signing an agreement. The family is free to choose their FCRA compliant vendor of choice to perform these checks.
- We provide ‘masked’ one to one proxy call and texting (powered by a third party vendor – Twilio) and an In-App Messaging and Video Calling (powered by a third party vendor – Cometchat) for users to connect with each within and outside outside our platform without sharing personal contact information.
- We offer users the ability to design and build their own bespoke Live-In Childcare Agreement online, from the employment terms down to the house rules and logistics
- We have integrated with a secure payment service (powered by a third party vendor – Stripe) to facilitate the payment of our service booking fees
1.2 If you choose to use our site as a family or homepair your relationship with Homepaired is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Homepaired. You act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Homepaired. You acknowledge and agree that you have complete discretion to list your Home or your Services or engage in alternative employment activities.
1.3 When you finalize a booking, you acknowledge that you are entering into an employment contract directly with each other (where the family is the legal Employer and the Homepair the Employee). Homepaired is not and does not become a party in any contractual relationship between users, nor is Homepaired an employer, or be construed to be a joint employer or acting as an agent in any capacity for any user at anytime. Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or other quasi-employment or partnership relationship between users and the Company.
1.4 Homepaired does not, and shall not be deemed to direct or control you generally or in your performance under these Terms, including in connection with users provision of childcare services. The site has been designed such that families, not the Company, exercise complete control over the manner, means, schedule and other details of employment decision making – whether it is searching and interviewing users, ordering and reviewing background checks, hiring, setting terms of employment, scheduling work once hired, recording hours, payment and termination of a Homepair’s employment. For further clarification, please read specific employment related Terms below for homepairs and families.
1.5 We cannot guarantee that our site will be continually available or accessible on the Internet, and we may at times need to suspend accessibility for the purpose of making repairs, alterations, new features, or changes thereto, for performing maintenance work, or for any other purpose. The Company shall have no liability to you for any inconvenience or damages incurred by the unavailability of the Site for any period of time.
2. Registration, Eligibility to use our Site and Screening
2.1 To be a registered user on our Site you must be an individual over 18 years of age. Users seeking to be Homepairs must be authorized to work in the United States, have their own medical insurance coverage and at least 1 year of childcare experience. Users seeking to be host families must be able to provide a private guest room in their home that meets ‘code’ (at least 70 sqft in size, 7ft high ceiling, has heating and 2 points of exit). Users who do not positively affirm they meet these fundamental requirements during registration are not allowed on our site.
2.2 At Homepaired we take the safety of our users and children seriously. If you choose to use our site, you are fully and completely disclosing that you do not have any prior criminal history, which may include any/all incidents resulting in your arrest, incarceration, or conviction of any felony or criminal offense involving violence, abuse, neglect, or any offense endangering the safety of others, or are registered or required to register, as a sex offender with any government entity. Users who do not positively affirm they meet this fundamental requirement during registration are not allowed on our site.
2.3 Once registered, users will initially only have access to view and update their profile. To get full access to our platform (appear in search, find / contact / book other users), users will be required to have an introductory ‘quality control screening’ call with us where we can explain how the platform works, ensure there is a genuine intention to use our service as intended, ask any questions and, importantly, have updated their profile to a satisfactory level of completeness. Only once we are satisfied users have met our minimum quality control standards will we allow full access to our platform.
2.4 Users understand that our screening calls are limited and are solely a ‘quality control’ step we use to ensure that we have viable candidates active on our site. We do not perform any background checks, or verify references, during our initial screening of users since these are actions that families seeking to employ a homepair must perform themselves during the interview and booking process.
3.2 Furthermore, you are solely accountable for all content and information that you make available on the site and on your user profile, including all account and profile information, references, photographs, resumes, certifications, education records, family and home details, childcare experience and preferences. When you provide content you attest to its legitimacy, truthfulness and accuracy, and you understand that the Company is not responsible for any claims relating to inaccurate, untimely or incomplete information that you provide.
3.3 You will not use our site to author, post, promote or disseminate any inflammatory, insensitive, violent, derogatory, bigoted, or sexually prurient statements, images, video or audio recordings, or any material that may be harmful or objectionable to Homepaired, its users, third party or property.
4. Service Booking Fees
4.1 Homepaired will charge families a Service Booking Fee in consideration for the use of the Site, its features and the services it provides to support finding, hiring and managing a homepair. The family understands that the Company’s fees are not a “commission” and recognize that they are charges for my continued use of and access to the Company’s platform.
4.2 Service Booking Fees are non-refundable and are displayed to families during the booking process. The Company may, from time to time, in its sole and complete discretion modify, amend, add or change the fees and/or fee structure without notice to or obtaining consent from the users, however fee changes will not affect bookings made prior to the fee change.
4.3 You are responsible for paying any Service Fees that you owe Homepaired. We offer families two ways to pay these fees (always once the booking has been agreed and the first draft of the agreement is ready to send): i) paid in total upfront, or ii) paid ‘monthly’ which will incur a small additional charge. Fees are processed immediately at the time the payment is made.
4.4 Failure to make Service Booking Fee payments as required pursuant to this Agreement shall authorize the Company, in its sole and complete discretion, to immediately terminate, suspend, or remove the delinquent customers account from the Site, and/or to suspend, recall, withdraw or to demand the cessation of services provided by the homepair. Any past due or late payments required pursuant to this Agreement shall, if paid more than thirty (30) days past due, carry a late penalty charge of five percent (5%) of the total sum due.
4.5 Fees charged pursuant to this Agreement shall be payable to the Company through the secure and integrated payment features available on the Site provided by a 3rd party vendor, Stripe. Families are free to make payments using Stripe either by checking account, debit card or credit card (which will incur transactional fees that are not in our control). Homepaired may also, at our discretion, accept a certified check from families – please contact email@example.com if you would like to pay your Service Booking Fee this way (only available if paying in total upfront).
5. Terms specific to Homepairs: Employment
5.1 We have designed the site in such a way that all employment decisions – whether it be searching, contacting, hiring, setting terms of employment, scheduling work, recording hours, payment and termination – are within the Family’s sole direct and immediate control, and that the Company exercises no control over the manner, means, schedule, or other details of your employment. You have the opportunity to collaborate on your employment terms, review them and suggest any changes with the family before you officially sign your employment agreement.
5.2 Upon receipt of a booking and the co-signing of your employment terms, you are entering a legally binding agreement and acknowledge that a family that hires you on our site is your employer with sole and complete discretion and responsibility for your employment including compliance with all applicable federal and state employment and tax laws in connection with your employment, and that Homepaired is neither your employer or can be construed to be a joint-employer.
5.3 You acknowledge that any disputes, rights and claims you may have such as for any work-related benefit of any kind, unpaid hours, overtime, unemployment, workers’ compensation, services, disability or family or medical leave that is contrary to your employment agreement should be made directly with the family as your employer, and that Homepaired, in order to preserve its status as a non-employer, cannot mediate or be involved in any way with any disputes you have with your employer.
5.4 You acknowledge that the Company does not have any control over the quality, timing, or legality of the services actually delivered by you, or of the integrity, responsibility or actions of families you work for whether in public, private or offline interactions. Whilst Homepaired may at times suggest families for you to connect with who are active on our site, these do not in any way imply a referral or recommendation to you, nor make any representations or guarantees about the suitability of the family, or reliability, timeliness, or accuracy of your services.
5.5 You agree and acknowledge that background checks families run on themselves maybe limited in scope and should not be taken as comprehensive, complete, accurate, up-to-date or conclusive of their suitability as an employer, or constitute a full screening of that Family’s public record at a detailed level such as County records, education, and driver’s records. You acknowledge that at any time during the booking process you can request to see the Family’s background check report prior to continuing with the booking process.
6. Terms specific to Families: Employment
6.1 You acknowledge that if you book and hire a Homepair on our Site you will be classified as a domestic employer and are fully and solely responsible for complying with applicable State and Federal employment and tax laws, including but not limited to; minimum wage laws, overtime wage laws, family and medical leave laws, employment discrimination laws, payment of ‘nanny taxes’ and all other employment laws in the context of your homepairs’ employment. You acknowledge that Homepaired is not involved in any employment capacity and has designed the site in such a way that all employment decisions – whether it be searching, interviewing, hiring, setting terms of employment, scheduling work, recording hours, payment and termination – are within your complete direct and immediate control, and that the Company exercises no control over the manner, means, schedule, or other details of your employment agreement or can be construed to be a joint-employer in any way.
6.2 You acknowledge that it is your ultimate responsibility to conduct thorough interviews, review and follow up on references, order and assess background checks (at a level of detail that you decide is appropriate), and design the terms of your homepair’s employment agreement before making your hiring decision.
6.3 You are solely responsible for the payment of your homepairs’ wages on a weekly basis as required by State and Federal Law, the duration and schedule of your homepairs’ employment, the supervision of your homepair during their employment, and for providing any resources, tools, equipment, or special training or instruction that is necessary for your homepair to effectively discharge their job duties.
6.4 You agree and fully acknowledge that the Company does not have any control over the quality, timing, or legality of the services actually delivered by homepairs, or of the integrity, responsibility or actions of families or homepairs. Whilst Homepaired may at times suggest homepairs for you to connect with who are active on our site, these do not in any way imply a referral or recommendation to you, nor make any representations or guarantees about the suitability, reliability, timeliness, or accuracy of the services provided by homepairs.
6.5 You agree to provide fully live-able, habitable and reasonably comfortable housing conditions for your homepair. You further agree and acknowledge that it is your sole and full responsibility to comply with City/Municipal, State and Federal landlord/tenant laws, fair housing laws, and other laws governing the maintenance of dwellings in your jurisdiction or area of residence.
7. Users Responsibility to Run and Review Background Checks
7.1 Users agree and understand that Homepaired in no way endorses, represents, guarantees, refers, or recommends any user on our site, or is privy to any user’s public records and Background Check history, and must therefore take full responsibility for performing adequate vetting of any candidate themselves before making a hiring decision. As outlined in section 2.3 above, our screening process is limited and merely ensure that users intentions for using our site are aligned to our platform offering, and that profiles are complete to an adequate level, and as such, does not make, or can be inferred to make, any representations or guarantees of a user’s background history.
7.2 Families therefore accept and agree that it is their sole responsibility to ensure that all prospective employees, especially regarding the care of children, are adequately vetted, interviewed, followed up with references, and ‘Background Checked’ before making any hiring decision. Likewise, homepairs accept and agree that it is their sole responsibility to ensure that all prospective employers were adequately interviewed, and Background Checks on families were shared and reviewed, before accepting or continuing with a booking.
7.3 We simply require families and homepairs (including persons over the age of 18 in the household) to positively confirm they have run and reviewed background checks as part of the booking process. At no time does Homepaired see, or is privy, to any Background Check report ordered by the family during the booking process.
7.4 It is the sole and direct responsibility of the family and homepair to determine and decide whether they wish to proceed with – or cancel – a booking based on background check results or follow up of references. Furthermore you acknowledge and agree that if you fail to run and review background checks or follow up on references, but positively confirm these checks took place to proceed with a booking on our site, that you i) accept all risks and responsibility for such action, and ii) hold Homepaired harmless from any liability.
7.4 In line with the Fair Credit Reporting Act (FCRA), all users that have a Background Check performed on them are free to request and receive a copy of their report directly from the vendor, and have the opportunity to resolve any disputes in the report directly with that vendor. Users should not seek to liaise or resolve any adverse findings in a background check report with Homepaired.
7.5 Families are free to run Background Checks with any vendor of their choosing (which must be FCRA compliant) – and although we do make a suggestion to use Clearchecks, ultimately it is up to family to decide which vendor they would like to make use of and how detailed / what aspects they would like the background checks to cover.
8. Early termination, rematching and refunds
8.1 As noted earlier, Service Booking Fees are non-refundable and are owed to Homepaired even if a placement terminates early, with or without cause. However, we do allow the family the opportunity to offset the balance of any fees remaining from a terminated placement towards a new booking on our site. This balance is effectively the fees related to the period between the Homepair’s termination date and the end date per that original agreement.
8.2 The family acknowledges that the balance of fees that can be offset towards another booking is not fixed, and will reduce pro rate each day, to expiry, until the the Family successfully hires a new homepair on our site. We understand that it may not be possible to find a replacement immediately so we offer a one (1) month grace period from the termination date of the original homepair for the Family to search and find a replacement. During this grace period – the balance of fees that can be offset will remain frozen.
8.3 When the 1 month grace period is over, the family understands and acknowledges that the balance of fees that can be offset on a new placement will reduce pro rata each day. If the family opted to pay the Service Booking Fee on a rolling monthly schedule, those fees will become due and owed to Homepaired as usual as set out above in Section 4.
8.4 Only in exceptional circumstances, and at our sole discretion, will Homepaired consider refunding families for any outstanding balance of service fees. Families understand that if this exceptional situation arises that any refund will exclude any Stripe transaction fees that have already been incurred on the original transaction.
8.5 Families that find themselves in the situation of needing to book a replacement homepair should contact the team at Homepaired at firstname.lastname@example.org where we can assist and walk you through how the process works.
9. Prohibited Activity: Circumvention of our Service
IF YOU ARE AWARE OF ANY ACTIVITY OR FEEL ANY INDIVIDUAL YOU INTERACT WITH ON OUR SITE IS SEEKING PRIVATE INFORMATION ABOUT YOU TO CIRCUMVENT OUR PLATFORM’S COMMUNICATION FEATURES, BOOKING PROCESS OR PAYMENT TERMS; OR SUGGESTS TO YOU MAKING OR RECEIVING PAYMENTS OUTSIDE OF THE SITE IN VIOLATION OF THESE TERMS; OR AWARE OF ANY USER IN BREACH OR POTENTIAL BREACH OF THIS NON-CIRCUMVENTION AGREEMENT – PLEASE SUBMIT A CONFIDENTIAL REPORT TO THE COMPANY BY EMAIL AT INFO@HOMEPAIRED.COM.
9.1 You acknowledge and agree that a substantial portion of the compensation the Company receives for making the site available to you is collected through the Service Booking Fee described above. The Company only receives this fee when a homepair and a family form a relationship through the site. Therefore, for 24 months from the time you identify or are identified by any party through the site (the “Non-Circumvention Period”), you agree to use the site as your exclusive method to request, make, extend and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Homepair Relationship”).
9.2 You agree to solely use our Proxy calling and In-App Messaging and Video Calling features for all communications between yourself and other users on our platform, and you agree to not share or seek private information about yourself or with each other that would facilitate a user being able to contact you using that personal information outside of our platform (such as your last name, phone number, email address, residence and any other source of information that could be deemed to be compromising your anonymity).
9.3 You further agree and acknowledge to not participate, assist, coerce, or enable the sharing or soliciting of personal information with other users on our site, or seek to enable or request, extend, make or accept a booking independent of our platform, thus circumventing our Proxy calling and In-App Messaging and Video Calling features, non-circumvention period and avoidance of our Service Booking Fees. If you do so, you acknowledge and agree that you i) would be in serious breach of these Terms, ii) accept all risks and responsibility for such action, and iii) hold Homepaired harmless from any liability.
9.4 If, following an introduction by us, the family enters into any new financial arrangement with the homepair outside of our platform for the extension and provision of childcare services, and this new arrangement is in clear breach of our non-circumvention period, and results in the avoidance of paying our service fees, the family shall within 30 days of the homepair working under this new arrangement, pay Homepaired a fee of $2,500 as consideration for breaching these terms, and the fees lost and costs incurred. The family (a) agrees that this fee shall be payable, (b) acknowledges that the fee might reasonably be supposed to be owed given evidence received by us from either the family or homepair or another informed source, and (c) consents to Homepaired to pass on this information to third parties if reasonably required to collect this fee. On payment of this fee, this agreement between family and homepair will be terminated and the parties suspended from our platform.
9.5 Homepaired may at times facilitate the communications between it’s users by allowing families and homepairs to connect with each other outside of our communication features (eg by providing personal phone numbers and emails) but will only do this i) in exceptional circumstances (such as issues with our in-app communications features or difficulty in scheduling a time to arrange and both be online to conduct a video call interview), ii) only if both users consent to share that personal information with each other. Users acknowledge and agree that they are bound to our Terms at all times, and any off-platform communications that might be facilitated, requested or occur is an act of good faith between Homepaired and users and does not, in any way, or can be inferred to be any invitation, to circumvent these Terms. Users therefore acknowledge and agree that if they participate in off-platform communications, they do so with a firm commitment to Homepaired that they will not circumvent, solicit, seek, enable, request or accept a booking independent of our platform and avoidance of our Service Booking Fees, and to do so would be a serious breach of that good faith and these Terms.
You acknowledge that the Company is not responsible for the conduct, whether online or offline, of any user of the site or services and does not assume and expressly disclaims any liability that may result from the use of information provided on our site. All users hereby expressly agree not to hold the Company (or it’s officers, directors, shareholders, employees, and other affiliates) liable for the actions or inactions of any user or other third party or for any information, instruction, advice or services which originated through the site, and, the Company expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR WHERE THE LAW REQUIRES A DIFFERENT STANDARD, WE SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR INJURY OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING FROM OR RELATED TO THE CHILDCARE SERVICES THAT MAY BE PROVIDED BY THE HOMEPAIR OR FACILITATED THROUGH USE OF THE COMPANY’S SITE. THIS LIMITATION OF LIABILITY SHALL APPLY TO ALL CLAIMS UNDER STATE OR FEDERAL LAW, WHETHER SOUNDING IN TORT, EMPLOYMENT, OR OTHER LEGAL DOCTRINES AND WHETHER OR NOT SUCH CLAIMS ARE PREDICATED ON STATUTES, ORDINANCES OR LEGISLATION.
USERS AGREE TO FULLY AND COMPLETELY DEFEND, INDEMNIFY AND HOLD THE COMPANY (AND IT”S AFFILIATES, OFFICERS, EMPLOYEES) HARMLESS FROM ANY/ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, SUITS, DEMANDS, AND OTHER FORMAL OR INFORMAL LEGAL PROCESS WHICH IS BROUGHT AGAINST THE COMPANY AS A RESULT OF I) ANY BREACH OF THESE TERMS, II) IMPROPER USE OF THE SITE, III) INTENTIONAL, RECKLESS, OR NEGLIGENT ACTS OF UERS WHICH FORM THE BASIS OF LEGAL CLAIMS RAISED BY THE FAMILY OR HOMEPAIR OR HIS/HER SUCCESSORS, ASSIGNS, HEIRS, BENEFICIARIES, OR MINOR CHILDREN ETC.
12. Binding Arbitration
YOU HEREBY AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING NOW OR IN THE FUTURE UNDER OR RELATING IN ANY WAY TO THIS AGREEMENT, OR TO THE SERVICE (“CLAIM”), REGARDLESS OF THE NATURE OF THE CAUSE(S) OF ACTION ASSERTED (INCLUDING CLAIMS FOR INJUNCTIVE, DECLARATORY, OR EQUITABLE RELIEF), SHALL BE RESOLVED BY BINDING ARBITRATION. CLAIMS SUBJECT TO ARBITRATION INCLUDE CLAIMS THAT ARE MADE AS COUNTERCLAIMS, CROSS CLAIMS, THIRD PARTY CLAIMS, INTER-PLEADERS, OR OTHERWISE.
ARBITRATION REPLACES THE RIGHT TO GO TO COURT, AND YOU THEREFORE AGREE TO WAIVE ANY RIGHT THAT YOU OR WE MIGHT OTHERWISE HAVE HAD TO A JURY TRIAL OR THE OPPORTUNITY TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY. YOU FURTHER AGREE THAT YOU WILL NOT BE ABLE TO BRING A CLASS ACTION OR OTHER REPRESENTATIVE ACTION (SUCH AS AN ACTION IN THE FORM OF A PRIVATE ATTORNEY GENERAL) TO LITIGATE ANY CLAIMS IN COURT BEFORE EITHER A JUDGE OR JURY; NOR WILL YOU BE ABLE TO PARTICIPATE AS A CLASS MEMBER IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION IN ARBITRATION OR IN COURT BEFORE EITHER A JUDGE OR JURY. IF THE PRECEDING SENTENCE IS NOT ENFORCED FOR ANY REASON, THEN YOU AGREE THAT IN SUCH CASE ANY CLASS DISPUTE WILL NOT BE RESOLVED THROUGH ARBITRATION.
This binding arbitration provision applies to any and all Claims that you have against us, our parent, subsidiaries, affiliates, licensees, predecessors, successors, assigns, and against all of their respective employees, agents, or assigns, or that we have against you; it also includes any and all Claims regarding the applicability of this arbitration clause or the validity of the Agreement, in whole or in part. It is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. sections 1-16, as it may be amended.
The party filing a Claim(s) in arbitration must file its Claim(s) before JAMS or the American Arbitration Association under the rules of such arbitration administrator in effect at the time the Claim(s) was filed. Rules and forms may be obtained from, and Claims made may be filed with JAMS (800.352.5267 or jamsadr.com) or the American Arbitration Association, (800-778-7879 or www.adr.org). Arbitration hearings shall be held at a place within the federal judicial district that includes your address at the time the Claim(s) is filed, or at some other place to which you and we agree in writing. Judgment upon any arbitration award may be entered in any court having jurisdiction.
This Arbitration Agreement shall survive: (i) termination or changes in the Agreement, and the relationship between you and us concerning the Agreement; and (ii) the bankruptcy of any party or any similar proceeding initiated by you or on your behalf. If any portion of this Arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.
New Jersey Law shall govern all disputes arising from this Agreement. Any legal actions or arbitration claims pursuant to this Agreement shall be raised before a Court/Arbitrator located in Essex or Hudson County, New Jersey, or in New York City.
13. Intellectual Property Policy and Site Services
A) Website and Proprietary Materials. You acknowledge and agree that the Site, and all images, text descriptions, video and audio recordings, creative materials, software, code, and any other content therein (collectively, the “Materials”) are the sole and complete intellectual property of the Company.
You have no right to download, transfer, license, share or disseminate the Materials to any entities or persons who are not parties to this agreement. You further agree that the Company’s proprietary interest in protecting the Materials, which are its sole and exclusive intellectual property, warrant the issuance of injunctive relief by a Court of law if legal action becomes necessary to enforce the Company’s intellectual property rights. The Company’s decision to pursue injunctive relief shall not constitute a waiver of the arbitration clause set forth herein.
You further agree that the Company shall be entitled to liquidated damages in the amount of $10,000.00 per day in the event that you breach this agreement by making unauthorized use, dissemination or transfer of the Company’s Materials.
B) Content, Images Uploaded by Users on Site. Except as my be inconsistent with other State or Federal Laws, any/all images, written statements or communications, audio/video recordings or other materials that you upload to the Site shall become the sole and complete intellectual property of the Company. By uploading materials to the Site, you forfeit your intellectual property rights to such material which you are therein transferring to the company.
14. General Provisions
Sole Agreement. This Agreement, including any attachments, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
Attorneys’ Fees. The parties agree that in the Event of any dispute arising under this Agreement that results in legal action, whether by lawsuit, arbitration, mediation, or other dispute resolution medium, the prevailing party shall be able to recover costs of suit and full counsel fees from the losing party.
Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
Electronic Signatures and Electronic Correspondence. Electronic signatures are deemed as original. Wherever a writing is required under this agreement, the parties agree that electronic writings or e-mails shall suffice.
IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS OF SERVICE – PLEASE REACH OUT TO US AT INFO@HOMEPAIRED.COM.