Terms & Conditions
Faveo Terms and Conditions
Last Updated: [ 01/05/2021 ]
Welcome, and thank you for your interest in Faveo!
- ARBITRATION — Disputes arising hereunder will be resolved by binding arbitration, and BY ACCEPTING THESE TERMS, YOU AND FAVEO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (The Arbitration Agreement is set forth in Section 18);
- LICENSE — The Platform Services are licensed, not sold to you, and you may use the Platform Services only as set forth in these Terms. (Sections 7 and 12 of these Terms include restrictions on your use of the Platform and related services); and
NO WARRANTY — The Platform Services are provided “AS IS” and “AS AVAILABLE” without warranties of any kind and Faveo’s liability to you is limited. (Faveo’s warranty disclaimers are set forth in Section 16).
- Privacy Overview. Faveo will collect, use, share and otherwise process personal information as set out in the applicable privacy statements and policies, including without limitation the [insert internal link];
- Faveo Platform Services Overview. Faveo’s Platform Services facilitate connection between companies or other parties (each a “Customer User”) seeking individuals to provide labor (“Helpmates”) to assist with moving, home restoration, warehousing, event set up, or other specified engagements (the “Helper Services”).
FAVEO DOES NOT PROVIDE HELPER SERVICES OF ANY KIND AND DOES NOT EMPLOY OR ENGAGE HELPMATES TO PERFORM SUCH HELPER SERVICES. HELPMATES ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF FAVEO. YOU HEREBY ACKNOWLEDGE THAT FAVEO DOES NOT SUPERVISE, DIRECT, CONTROL OR ACCEPT ANY RESPONSIBILITY FOR HELPER SERVICES BUT MAY MONITOR AND FACILITATE HELPER SERVICES ARRANGED THROUGH THE PLATFORM.
THE PLATFORM SERVICES ENABLE CUSTOMER USERS IN NEED OF CERTAIN HELPER SERVICES TO SEARCH FOR AND SELECT AVAILABLE HELPMATES WHO PROVIDE THE NEEDED HELPER SERVICES. ONCE THE USERS AGREE TO WORK TOGETHER, THEY HANDLE THE ARRANGEMENTS, INCLUDING THE SCHEDULING OF APPOINTMENTS, COMMUNICATIONS AND PAYMENT FOR THE TRANSACTIONS THROUGH THE PLATFORM.
HELPMATES DECIDE WHETHER TO OFFER HELPER SERVICES THROUGH THE PLATFORM AND ARE SOLELY RESPONSIBLE FOR THEIR HELPER SERVICES AND ANY ACTS AND OMISSIONS BY THEM OR THEIR PERSONNEL IN CONNECTION THEREWITH. ANY INDIVIDUALS WHO PROVIDE HELPER SERVICES ON BEHALF OF A HELPMATE ARE THE RESPONSIBILITY OF THE HELPMATE.
YOU AGREE THAT FAVEO HAS NO RESPONSIBILITY OR LIABILITY FOR ANY HELPER SERVICES, THE FAILURE TO PROVIDE SUCH SERVICES OR THE ACTS OR OMISSIONS OF THE HELPMATES OR THEIR PERSONNEL OR CONTRACTORS AND YOU USE HELPER SERVICES AT YOUR OWN RISK.
- Helper Services
- Requesting Helper Services. As a Customer User, You may request Helper Services directly by creating a new request (“Helper Services Request”) through the Platform Services. Such Helper Services Requests may include details such as the Helper Services project schedule, the number of Helpmates required, and the hourly rate for the Helper Services. Faveo may recommend Helpmates that meet the criteria you specified in the Helper Services Request or in your account. You may elect to work with a recommended Helpmate, or choose to review the profiles of additional Helpmates, including those who have applied to the request, to select a Helpmate to provide the requested Helper Services. Once a Helpmate registers on the Platform, the Helpmate may view Customer Users’ requests for Helper Services, including by searching for requests related to the Helpmate’s skills and based on the Helpmate’s location. The Helpmate may then apply to positions of interest. Customer Users and Helpmates may receive messages and other communications related to requests for Platform Services directly through the Platform, by email or by text. Such messages may include notice of when a Helpmate’s application is accepted or denied, and reminders for the Helpmate regarding Helper Services start dates and times.
- Conduct Guidelines for Customer Users. Due to the nature of the Helper Services you may, from time to time, personally interact with the Helpmate you engage to provide such Helper Services. You acknowledge Helpmates deserve your respect, and that your continued use of the Platform Services depends upon your continued observance of the following code of conduct (“Code of Conduct”): You agree that you shall not: (a) physically harm, threaten to harm, or intentionally or recklessly cause harm to Helpmates or create a condition that endangers the health and safety of any Helpmate; (b) make or attempt any unwanted sexual advance or statement to our Helpmates; (c) threaten, harass, stalk, intimidate, or engage in any other aggressive or bullying behavior against our Helpmates; (d) use any vulgar or obscene language or otherwise engage in behavior that is likely to make others feel uncomfortable, embarrassed or offended; or (e) engage in any behavior that discriminates against our Helpmates because of the individual’s race, color, sex, age, national origin, handicap, sexual orientation or religion. Any violation of our Code of Conduct shall be deemed a material breach of these Terms, and we may terminate your account and access and use of the Platform Services without penalty.
- Cancellation of Helper Services. The fees associated with cancellation of any Helper Services (“Cancellation Fees”) for Customer Users and for Helpmates are set forth on our website.
- Necessary Equipment. Customer Users must supply any trucks, tools, machines or equipment necessary for the required tasks. However, Faveo and its Helpmates may refuse to work with any provided equipment they are uncomfortable, unfamiliar with or deem unsafe.
- Access and Use of the Platform Services
- Accounts and Registration. To access the features of the Platform Services, you must register for an account. To register for an account, please sign up on the Website by providing us with your name, phone number, email, and other relevant contact information. Helpmates may include general work interests, recently completed jobs, reviews, and certifications in your Helpmate account. Customer Users may include a profile picture, company name, location, and additional details about Customer User’s company or business. A member of our customer success team may contact you to facilitate your access to the Platform Services. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You will also be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
- Location Based Services. Some of the features of the Platform Services may enable Faveo to access your location in order to tailor your experience with the Platform Services based on your location (“Location-based Services”). If you choose to disable any Location-based Services on your device, you will not be able to utilize certain features of the Platform Services. By enabling Location-based Services, you agree and acknowledge that: (i) device data we collect from you is directly relevant to your use of the Platform Services; (ii) Faveo may provide Location-based Services related to and based on your then-current location; and (iii) Faveo may use any such information collected in connection with provision of the Platform Services.
- Required Equipment. You must provide all equipment and software necessary to connect to the Platform Services, including but not limited to, a mobile or computing device that is suitable to connect with and use the Platform Services. You are solely responsible for any fees related to any third-party platforms, Internet connection or mobile fees, that you incur when accessing the Platform Services.
- For Customer Users. Customer User agrees to pay all fees associated with Helper Services provided in connection with an accepted Helper Services Request, at the rates agreed upon between Customer User and a member of Faveo’s customer success team as documented for your review on the Platform prior to posting a job. Customer User will be responsible for paying any applicable taxes relating to such fees and will indemnify and hold harmless Faveo from any and all taxes based on any payments made by you via the Platform Services. Faveo does not make any representation or render any advice as to the potential tax implications of any payments made via the Platform Services, and you should consult your tax professional with regards to the same. Except as otherwise set forth herein or agreed to by Faveo, all fees paid by Customer Users are non-refundable. EACH REQUEST FOR HELPER SERVICES IS UNIQUE. FEES ASSOCIATED WITH PREVIOUS REQUESTS MAY NOT BE HONORED IN CONNECTION WITH FUTURE REQUESTS. TO DETERMINE THE FEES IN CONNECTION WITH A GIVEN REQUEST, CUSTOMER USER MUST DISCUSS SUCH FEES WITH A MEMBER OF FAVEO’S CUSTOMER SUCCESS TEAM.
- For Helpmates. Helpmates should review the Helper Platform Services Agreement for payment information and any fees payable in connection with the Platform Services.
- Limited License Grant to Faveo. Certain features of our Platform Services may require you to transmit documentation via our Platform Services, including but not limited to license documentation, professional certifications, personal identification and contact information, references, and other documents (“Documents”). By providing Documents to or via our Platform Services, you grant Faveo a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, reproduce, modify for the purpose of formatting for display, and distribute your Documents, in whole or in part, as applicable to third parties that process such Documents as necessary to provide the Platform Services. You hereby authorize Faveo to export or otherwise share Documents to these third parties as required by the Platform Services.
- License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Platform Services; (ii) make modifications to the Platform Services; or (iii) interfere with or circumvent any feature of the Platform Services, including any security or access control mechanism. If you are prohibited under applicable law from using the Platform Services, you may not use it.
- Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Platform Services (“Feedback”), then you hereby grant Faveo an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform Services and create other products and services.
- Ownership; Proprietary Rights. The Platform Services are owned and operated by Faveo. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform Services (“Materials”) provided by Faveo are protected by intellectual property and other laws. All Materials included in the Platform Services are the property of Faveo or our third-party licensors. Except as expressly authorized by Faveo, you may not make use of the Materials. Faveo reserves all rights to the Materials not granted expressly in these Terms.
- Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User, and not Faveo, is entirely responsible for all information, data, and other content that it posts, transmits or otherwise makes available through the Platform Services (“User Content”). Faveo has no obligation to pre-screen any content. You use all User Content at your own risk. Without limiting the foregoing, Faveo reserves the right in its sole discretion to pre-screen, refuse, or remove any content, although Faveo reserves the right in its sole discretion to pre-screen refuse or remove any content. Faveo shall have the right to remove any content that violates these Terms or is otherwise objectionable.
- Ownership of Your Content. Faveo does not claim ownership of any User Content you make available on the Platform Services (“Your Content”). However, when you as a user post or publish Your Content on or in the Platform Services, you represent that you have all of the necessary rights to grant Faveo the license set forth in this Section 9. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Platform Services.
- License to Your Content. Subject to any applicable account settings, you grant Faveo a right to copy, use, display Your Content (in whole or in part) and create derivative works from Your Content for purposes of operating and providing the Platform Services. You hereby grant Faveo a nonexclusive, irrevocable, perpetual, worldwide, sublicensable license to use and create derivative works of Your Content for its own business purposes, including without limitation, to improve the Platform Services, analyze use of the Platform Services, and develop new services.
- Procedure for Making Claims of Copyright Infringement. It is Faveo’s policy to terminate membership privileges of any Platform Services User who repeatedly infringes copyrights upon prompt notification to Faveo by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Platform Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Platform Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Faveo’s Copyright Agent for notice of claims of copyright infringement is as follows: Xavier Rodriguez, Xavier@getfaveo.co; 404 Euclid Ave., San Diego CA 92114.
- Interactions with Other Platform Services Users. Customer Users and Helpmates are solely responsible for their interactions with each other, and any other parties with whom they interact; provided, however, that Faveo reserves the right, but has no obligation, to intercede in disputes. You understand that we: (a) do not recommend or endorse any Users and we have no control over the acts or omissions of any Users; (b) are not responsible or liable in any manner for the performance or conduct of any Users or other third parties online or offline; (c) make no representations or warranties about the quality of the services provided by any Users or about your interactions or dealings with other Users of the Platform Services; and (d) may but are not obligated to conduct criminal background checks, and we may but are not obligated to evaluate the credentials of any Helpmates. If requested by a Customer User, we may share the results of a Helpmate’s criminal background check. Regardless of whether Faveo screens Users or performs a background check, you should exercise caution and perform your own screening before connecting with anyone through the Platform Service, meeting anyone, engaging Helpmates or accepting engagements from Customer Users. We hereby expressly disclaim, and you hereby expressly release us from, any and all liability whatsoever for any controversies, claims, suits, injuries, loss, harm and/or damages arising from and/or in any way related to the Platform Service or your interactions or dealings with other Users of the Platform Services, including without limitation any acts and/or omissions of Users online or offline
- Third-Party Terms
- Carrier Platform Services. Your access to use the Platform Services may be subject to separate third party terms of service and fees, including your internet network operator’s terms of service and fees, which are your sole responsibility.
- Third Party Platform Services and Linked Websites. The Platform Services may contain links to third-party services such as third party websites or applications (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Platform Services. Faveo does not control and is not responsible for Third-Party Links. Faveo provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
- Open Source Software. The Platform Services may include or incorporate third- party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Platform Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
- Third Party Disputes. FAVEO IS NOT AFFILIATED WITH ANY THIRD PARTY SERVICE, AND ANY DISPUTE YOU MAY HAVE WITH ANY THIRD PARTY SERVICE OR OTHER THIRD PARTY ARISING FROM OR RELATING TO OUR PLATFORM SERVICES IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY. YOU IRREVOCABLY RELEASE FAVEO (AND FAVEO’S OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Prohibited Conduct. By using the Platform Services, you agree not to:
- use the Platform Services for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- interfere with security-related features of the Platform Services, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform Services except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Platform Services, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code, or (b) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform Services;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Platform Services account without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 12 or assist or permit any person in engaging in any of the acts described in this Section 12.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Platform Services. Otherwise, your continued use of the Platform Services constitutes your acceptance of such changes. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 13, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- Term, Termination and Modification of the Platform Services
- Term. These Terms are effective beginning when you accept the Terms or use the Platform Services, and ending when terminated as set for in Section 14.2.
- For Helpmates. Please refer to your Helper Platform Services Agreement for the conditions under which termination may occur.
- For Customer Users. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, Faveo may, at its sole discretion, terminate these Terms, your account through the Platform Services or suspend or terminate your access to the Platform Services at any time for any reason or no reason, with or without notice. You may terminate your account and your agreement to these Terms at any time by contacting customer service at email@example.com, and providing notice of your intent to cancel your account.
- Effect of Termination. Upon any termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Platform Services; (ii) you will no longer have access to your account; and (iii) Sections 3, 6 – 10, 14.3, and 15- 20 will survive.
- Modification of the Platform Services. Faveo reserves the right to modify or discontinue the Platform Services at any time (including by limiting or discontinuing certain features of the Platform Services), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Platform Services or any suspension or termination of your access to or use of the Platform Services.
- Indemnity. You are responsible for your use of the Platform Services, and, to the fullest extent permitted by law, you will defend and indemnify Faveo and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Faveo Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Claims”) brought by a third party arising out of or related to: (a) your use of, or misuse of, the Platform Services not in compliance with these Terms; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including any Helpmate or Customer User. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims.
- Disclaimers; No Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, THE PLATFORM SERVICES, ALL MATERIALS AVAILABLE THROUGH THE PLATFORM SERVICES, AND ANY HELPER SERVICES COORDINATED THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, FAVEO DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLATFORM SERVICES, ALL MATERIALS AVAILABLE THROUGH THE PLATFORM SERVICES, AND ANY HELPER SERVICES COORDINATED THROUGH THE PLATFORM SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, FAVEO DOES NOT WARRANT THAT THE PLATFORM SERVICES, ANY HELPER SERVICES, OR ANY MATERIALS OFFERED THROUGH THE PLATFORM SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM SERVICES OR FAVEO ENTITIES OR ANY MATERIALS AVAILABLE THROUGH THE PLATFORM SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE FAVEO ENTITIES OR THE PLATFORM SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE PLATFORM SERVICES, OR ANY ENGAGEMENT OF A HELPMATE FOR HELPER SERVICES. YOU UNDERSTAND AND AGREE THAT YOU USE THE PLATFORM SERVICES, AND ACCESS OR OTHERWISE OBTAIN MATERIALS THROUGH THE PLATFORM SERVICE AND ANY ASSOCIATED SITES OR SERVICES, INCLUDING ANY HELPER SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR PHYSICAL PROPERTY, OR YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE PLATFORM SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE PLATFORM SERVICES OR THE DOWNLOAD OR USE OF THE MATERIALS.
YOU ACKNOWLEDGE AND AGREE THAT FAVEO IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FAVEO LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, OR OTHER USERS OF THE PLATFORM SERVICES (INCLUDING HELPMATES AND CUSTOMER USERS), AND THAT YOU ASSUME ALL RISK OF INJURY WHEN USING THE PLATFORM SERVICES, INCLUDING BUT NOT LIMITED TO ALL RISKS ASSOCIATED WITH ANY ONLINE OR OFFLINE INTERACTIONS WITH OTHER USERS OF THE PLATFORM SERVICES.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FAVEO ENTITIES BE LIABLE TO YOU FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, GENERAL, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM SERVICES OR ANY MATERIALS ON THE PLATFORM SERVICES, THE ENGAGEMENT OF ANY HELPMATE FOR ANY HELPER SERVICES, OR THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE PLATFORM SERVICES OR ANY AGREEMENT OR RELATIONSHIP FORMED USING THE PLATFORM SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND OR OTHER DAMAGES RESULTING FROM ANYONE’S RELIANCE ON INFORMATION OR USER CONTENT POSTED IN THE PLATFORM SERVICES OR TRANSMITTED TO OR BY ANY USERS , WHETHER OFFLINE OR ONLINE. THIS DISCLAIMER SHALL APPLY WHETHER THE DAMAGE IN QUESTION IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FAVEO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 18.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE FAVEO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLATFORM SERVICES, OR FOR ANY HELPER SERVICES FACILITATED OR NOT FACILITATED AS A RESULT OF THE PLATFORM SERVICES, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO FAVEO, OR FAVEO HAS PAID TO YOU, FOR ACCESS TO AND USE OF THE PLATFORM SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO CLAIM; OR (B) $1000.00.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE
- Dispute Resolution and Arbitration
- Generally. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. In the interest of resolving disputes between you and Faveo in the most expedient and cost effective manner, you and Faveo agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FAVEO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, AND THAT THIS AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT. This Arbitration Agreement also applies without limitation to all disputes between Helpmate and (i) Faveo’s fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them and (ii) Customer Users, including, but not limited to, any dispute, controversy, or claim arising out of relating to these Terms or Helpmate’s relationship with Faveo, including termination of the relationship or Helpmate’s performance of Helper Services for a Customer User.
- Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Faveo will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Faveo. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Selection of the Arbitrator. There shall be one arbitrator. The arbitrator shall be selected by mutual agreement of Helpmate and Faveo. Unless Helpmate and Faveo mutually agree otherwise, the arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the parties cannot agree on an arbitrator within 30 days after the commencement of the arbitration, then the arbitrator shall be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS. Helpmate will have the option of making the first strike.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or electronic mail (“Notice”). Faveo’s address for Notice is: Faveo, LLC, 404 Euclid Ave., San Diego, CA 92114 or firstname.lastname@example.org. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Faveo may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Faveo must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Faveo will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Faveo in settlement of the dispute prior to the arbitrator’s award; or (iii) $15,000.
- Fees. If you commence arbitration in accordance with these Terms, Faveo will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Diego, CA but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Faveo for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 404 Euclid Ave San Diego, CA 92114, within 30 days after first becoming subject to this Arbitration Agreement Your notice must include your name and address, the email address you used to set up your Account, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- No Class Actions. YOU AND FAVEO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Faveo agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Faveo makes any future change to this arbitration provision, other than a change to Faveo’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Faveo’s address for Notice, in which case your account with Faveo will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 18.8 is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void.
- Faveo Communications
- Generally. By entering into this Agreement or using the Platform Services, you agree to receive communications, including marketing and promotional communications, from us via e-mail, text or SMS message, and calls. You agree that for all of our communications, including for any SMS messages sent on behalf of Faveo, such as short-code messages sent through the Faveo Messaging Service described in Section 19.3, (i) message and data rates may apply to communications between you and Faveo; (ii) message frequency varies and depends on the user’s interaction; and (iii) texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. For our SMS services, including the Faveo Messaging Service described in Section 19.3, you acknowledge and agree that the mobile carriers that support our SMS messaging services are not liable for delayed or undelivered messages, and that we may change any telephone number we use to operate our SMS services at any time. You acknowledge that any messages you send to a telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
- Promotional Emails. IF YOU WISH TO OPT OUT OF RECEIVING PROMOTIONAL EMAIL COMMUNICATIONS FROM US, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
- Short-Code SMS Services. We may use one or more short-code SMS services to deliver texts to you if you provide us with your contact information and sign up to receive texts through that particular service. One of our short-code SMS messaging services is the “Faveo Messaging Service.” When you opt-in to our Faveo Messaging Service, you consent to receive texts, including marketing text messages, from us at the mobile number you’ve provided at opt-in. These texts may include, but are not limited to, operational communications concerning your account or the use of the Platform Services, marketing texts such as updates concerning new and existing features of the Platform Services, communications concerning promotions run by us or our third-party partners, and news concerning Faveo and industry developments. When you provide your contact information to sign up for the Faveo Messaging Service, we will send you an SMS message to confirm your sign up. You can cancel the Faveo Messaging Service at any time. Just text the word “STOPALL” to the telephone number or short code we used to contact you, from the mobile device receiving the messages through the Faveo Messaging Service. If at any time you forget what keywords are supported by the service, just text “HELP” to the telephone number or short code we used to contact you, or contact us at email@example.com for assistance. We may change any short code or telephone number we use to operate our SMS service at any time. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
BY SIGNING UP FOR THE FAVEO MESSAGING SERVICE, YOU AGREE TO RECEIVE MARKETING TEXT MESSAGES THROUGH THE SERVICE. HOWEVER, YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS THROUGH THIS SERVICE AS A CONDITION OF USING THE PLATFORM SERVICES OR RELATED SERVICES. MOREOVER, CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE PLATFORM SERVICES. IF WE SEND TEXTS THROUGH THIS SERVICE AND YOU WISH TO OPT OUT OF ALL TEXTS THROUGH THIS SERVICE, YOU CAN TEXT THE WORD “STOPALL” TO THE TELEPHONE NUMBER OR SHORT CODE WE USED TO CONTACT YOU, FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS THROUGH THE FAVEO MESSAGING SERVICE MAY IMPACT YOUR USE OF THE PLATFORM SERVICES OR RELATED SERVICES.
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Faveo submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Diego, California for resolution of any lawsuit or court proceeding permitted under these Terms.
- Contact Information. The Platform Services are offered by Faveo, LLC, located at 404 Euclid Ave San Diego, CA 92114, Attn: Legal. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org. You can access a copy of these Terms by printing the Terms directly from your internet browser.
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S¬202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Platform Services or to receive further information regarding use of the Platform Services.
- Force Majeure. Faveo shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, epidemics, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Release. You hereby release Faveo and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Platform Service, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Platform Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Faveo Entity or for such entity’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform Services provided hereunder.
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