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TERMS OF SERVICE AGREEMENT
THIS TERMS OF SERVICE AGREEMENT (the “Agreement”) as of the effective date, is a contract between you (“You” or “User”) and BidaSign LLC. (“BidaSign”, “We”, or “Us”), collectively called “Parties”. Upon using BidaSign’s website located at bidasign.com, you expressly agree to and accept all the terms and conditions contained in this Agreement, including all affiliated websites, mobile applications, mobile websites, owned and operated by BidaSign (“Site”), all services (except the Freelancer Services), applications and products that are accessible through this site and all BidaSign mobile applications that link to or reference this Agreement.
- User is interested in obtaining access to an online marketplace of freelance sign manufacturers, as either the Freelancer as a purchaser of the signs, the Client; and
- BidaSign is the service company which facilitates the online marketplace;
- To the extent that, as part of providing the Service, BidaSign will provide an online marketplace which allows sign manufacturers to sell their services online and allow buyers to purchase said products.
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 21C OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY OR AGENCY.
In consideration of the foregoing recitals, the mutual promises, covenants and agreements herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
The terms used in this agreement shall have their normal or common meaning, except that the following capitalized terms shall have the following meanings for the purpose of this Agreement.
- “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with BidaSign.
- “Client” means any authorized User utilizing the website to seek and/or obtain Freelancer Services from another User. From time to time, BidaSign may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to BidaSign.
- “Client Deliverables” means requests, intellectual property, and any other information or materials that a Freelancer receives from a Client to perform Freelancer Services.
- “Confidential Information” means Client Deliverables, Freelancer Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract or to perform or assist in performing Freelancer Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information also includes all confidential, proprietary or trade secret information, including discoveries, ideas, concepts, know-how, techniques, processes, procedures, designs, specifications, strategic information, proposals, requests for proposals, drawings, tracings, diagrams, blueprints, models, samples flow charts, data, computer programs, marketing plans, customer information, authentication credentials, and other technical, financial or business information, whether disclosed in writing, orally, visually, in tangible or intangible form, including in electronic mail or by other electronic communication. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Freelancer or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
- “Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Freelancer, prior to the commencement of a Service Contract, for the completion of all Freelancer Services contracted by Client for such Service Contract.
- “Force Majeure” means any act of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, acts of terrorism, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, arrest and restraints of governments and people, civil disturbances, and explosions.
- “Freelancer” means any authorized User utilizing the Site to advertise and provide Services to Clients.
- “Freelancer Deliverables” means requests, intellectual property, and any other information or materials that a Client receives from a Freelancer for a particular Service Contract.
- “Freelancer Fees” means: (a) for an Hourly Contract, an amount equal to the number of hours recorded by Freelancer, multiplied by the hourly rate set by the Freelancer; (b) for a Fixed-Price Contract, the fixed fee agreed between a Client and a Freelancer; and (c) any bonuses or other payments made by a Client.
- “Freelancer Services” means all services performed for or delivered to Clients by Freelancers.
- “Hourly Contract” means a Service Contract for which Client is charged based on the hourly rate set by the Freelancer.
- “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
- “Payment Method” means a Stripe account or such other method of payment as BidaSign may accept from time to time in our sole discretion.
- “Service Contract” means the contractual provisions between a Client and a Freelancer governing the Freelancer Services to be performed by a Freelancer for Client for an engagement.
- “Substantial Change” means a change to the terms of the Agreement that reduces your rights or increases your responsibilities.
- “Third Party Escrow Account” means the escrow account controlled by the terms and conditions of Stripe, Inc.
- “User Content” means any data, feedback, content, text, photographs, images, video, music, or other information that you post to any part of the Site or provide to BidaSign.
- “Work Product” means any tangible or intangible results or deliverables that Freelancer agrees to create for, or actually delivers to, Client as a result of performing the Freelancer Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
You expressly acknowledge, agree, and understand that: (a) the Site is merely a venue where Users may act as Clients and/or Freelancers; (b) BidaSign is not a party to any Service Contracts between Clients and Freelancers; (c) you are not an employee of BidaSign, and BidaSign does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) BidaSign will not have any liability or obligations under or related to Service Contracts for any acts or omissions by you or other Users; (e) BidaSign has no control over Freelancers or the Freelancer Services offered or rendered by Freelancers; and (f) BidaSign makes no representations as to the reliability, capability, or qualifications of any Freelancer or the quality, security, or legality of any Freelancer Services, and BidaSign disclaims any and all liability relating thereto.
TERM OF AGREEMENT
The Terms of Service as amended from time to time, will become effective December 13, 2017 and will remain in effect perpetually.
By registering for a BidaSign account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, or when visiting this website, you are deemed to have executed this Agreement and the other Terms of Service electronically, effective on the date you register your Account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
CONSENT TO USE ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from BidaSign, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
- Your Consent and Your Right to Withdraw Consent.
By registering for an Account, you consent to electronically receive and access, via email or through the Site, all records and notices for the services provided to you under the Terms of Service that we would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting us and following the provisions set forth below regarding notices. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
- Keeping Your Address and Email Address Current With Us.
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting us. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
- Hardware and Software You Will Need to Use the Site Services for Your Business.
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (a) you have read and understand the above consent to receive records and notices electronically; (b) you satisfy the minimum hardware and software requirements specified above; and (c) your consent will remain in effect until you withdraw your consent as specified above.
- Your Consent and Your Right to Withdraw Consent.
- Account Eligibility.
To use the Site and certain Site Services, you must register for an Account. BidaSign offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use. To use the Site and Site Services, you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and Site Services for your business purposes only, unless you use the Site and Site Services solely as an employee. You understand that you must comply with any licensing or registration requirements with respect to your business, and you represent that you comply with all such requirements. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site and the purchase or delivery of Freelancer Services; and (c) perform your obligations as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. BidaSign reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in BidaSign’s sole discretion.
You represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services.
- Identity Verification.
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on BidaSign, if it is a separate legal entity. You authorize BidaSign, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
- Account Registration.
By registering for an account, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. If you are a Freelancer, you represent and warrant that you use your Profile to market your business to others for the purpose of entering into independent contractor relationships with other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading. You agree not to register for more than one Client Account and one Freelancer Account without express written permission from us.
- Usernames and Passwords.
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize BidaSign to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password or the password of any User of your Account. You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account at any time.
- Account Eligibility.
PURPOSE OF THE SITE AND SITE SERVICES
The Site is a marketplace where Clients and Freelancers can identify each other and advertise, buy, and sell Freelancer Services online, specifically, services in the sign manufacturing industry. Subject to the Terms of Service, BidaSign provides the Site Services to Users, including hosting and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts. If Users agree on terms for Freelancer Services, a Service Contract is formed directly between such Users, subject to the provisions set forth in Section 8 (Contractual Relationship Between Client and Freelancer). When a User enters a Service Contract, the User uses the Site to engage, communicate, invoice and pay online.
- Escrow Accounts.
BidaSign provides escrow services to Users to deliver, hold, or receive payment for an Engagement, and to pay service, membership and payment processing and administration fees to BidaSign (“Escrow Services”). The Escrow Services are intended for business use, so you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes. Depending on your needs and the applicable Escrow Instructions, BidaSign will establish and maintain one of three different types of accounts, subject to the applicable Agreement:
(a) Client Escrow Account. After entering into a Service Contract, the first time a Client makes a payment for an Engagement, BidaSign will establish and maintain a “Client Escrow Account” to hold funds for the Client to use to make payments for Engagements, to receive refunds in connection with Engagements, and to make payments to BidaSign for payment processing and administration fees.
(b) Freelancer Escrow Account. After entering into a Service Contract, the first time a Freelancer uses the Site to receive payment for an Engagement, BidaSign Escrow will establish and maintain a “Freelancer Escrow Account” for the Freelancer to receive payments for Engagements, withdraw payments, make monthly membership payments and service fees to BidaSign, and issue refunds to Clients.
(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, BidaSign Escrow will establish and maintain a “Fixed-Price Escrow Account” to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Engagement that is the subject of that Service Contract.
You hereby authorize and instruct BidaSign to act as escrow agent in connection with the accounts and the payment, holding, and receipt of funds for each Engagement and other specified purposes (the “Escrow”) in accordance with the Terms of Service and the applicable Escrow Instructions.
- Escrow Accounts.
CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
- Service Contracts.
You acknowledge and agree that a Service Contract is comprised of the following agreements (as applicable): (a) The Fixed-Price Escrow Instructions; (b) the Hourly, Bonus and Expense Payment Agreement; (c) the Engagement terms awarded and accepted on the Site to the extent that the terms do not, and do not purport to, expand BidaSign’s obligations or restrict BidaSign’s rights under the Terms of Service; (d) the terms in Section 11 (Service Contract Terms), unless other terms are agreed to by the parties, to the extent that the provisions do not, and do not purport to, expand BidaSign’s obligations or restrict BidaSign’s rights under the Terms of Service; and (e) any other contractual provisions accepted by both the Client and the Freelancer, to the extent that the provisions do not, and do not purport to, expand BidaSign’s obligations or restrict BidaSign’s rights under the Terms of Service. You acknowledge and agree that BidaSign is not a party to any Service Contracts, and that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between BidaSign and any Freelancer.
- Payment Agreements and Escrow Instructions.
If Users choose fixed-price compensation, then the Users agree that they will be bound by, and BidaSign will follow, the Fixed-Price Escrow Instructions. If Users choose hourly compensation, and/or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and BidaSign will follow, the Hourly, Bonus and Expense Payment Agreement with Escrow Instructions.
- Service Contracts.
- Service Fee.
The fees to use the Site and Site Services are paid solely by the Freelancer. When a Client pays a Freelancer, said Client will pay the Freelancer directly through the use of Stripe for the amount agreed to under the Service Contract. Freelancer agrees to pay BidaSign the Service Fee for using the Site’s communication, invoicing, dispute resolution and payment services.
If Client fails to pay the Freelancer Fees or any other amounts due under the Terms of Service, whether by canceling Client’s credit or debit card, initiating an improper chargeback, or any other means, BidaSign may suspend or close Client’s Account and revoke Client’s access to the Site, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Freelancer Services. Without limiting other available remedies, Client must pay BidaSign upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, BidaSign, at our discretion, may set off amounts due against other amounts received from or held by BidaSign, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
- No Return of Funds.
In consideration of the Site Services provided by BidaSign, Client agrees that once Client makes the designated payment through Stripe for the Freelancer Fees as provided in this Agreement or the other Terms of Service, the charge is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Freelancer Fees or other Fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that BidaSign may dispute or appeal the chargeback and institute collection action against Client.
- Formal Invoices and Taxes.
BidaSign will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Freelancer Fees. Freelancer will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Freelancer Fees and for issuing any invoices so required. Freelancer will also be solely responsible for determining whether: (a) Freelancer or BidaSign is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Freelancer Fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or BidaSign, as appropriate; and (b) Bidasign is required by applicable law to withhold any amount of the Freelancer Fees and for notifying BidaSign of any such requirement and indemnifying BidaSign (either by BidaSign, at our sole discretion, offsetting the relevant amount against a future payment of Freelancer Fees to Freelancer or Freelancer reimbursing BidaSign for the applicable amount) for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of BidaSign, Freelancer agrees to promptly cooperate with BidaSign and provide copies of Freelancer’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Freelancer is engaging in an independent business as represented to BidaSign.
- Payment Methods.
Clients are charged a fee for payment processing and administration as described in the BidaSign Fee and ACH Authorization Agreement. In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
Client hereby authorizes BidaSign to run credit card authorizations on all credit cards provided by Client, to store credit card and banking or other financial details as Client’s method of payment for Services, and to charge Client’s credit card (or any other Payment Method). Credit cards and Stripe accounts and, if applicable, bank accounts in most countries will be charged by BidaSign. When Client accepts the Freelancer’s proposal, the Client is bound to pay the amount stated in the Service Contract through Stripe after Freelancer begins the project.
By providing Payment Method information through the Site, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. When Client authorizes a payment using a Payment Method via the Site, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
- Service Fee.
You acknowledge and agree that a substantial portion of the compensation BidaSign receives for making the Site available to you is collected through the Service Fee described in Section 9A (“Service Fee”). BidaSign only receives this Service Fee when a Client and a Freelancer pay and receive payment 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 must use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “BidaSign Relationship”). You may opt-out of this obligation with respect to each Client-Freelancer relationship only if Client or prospective Client or Freelancer pays BidaSign for each such relationship:
- an “Opt-Out Fee” computed to be the greater of the following amounts:
- $2,500; or
- 15% of the cost to the Client of the services to be performed in the BidaSign Relationship during the Non-Circumvention Period, as estimated in good faith by the prospective Client; or
- all Service Fees that would be earned by BidaSign from the BidaSign Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Freelancer from Client during the most recent normalized 8-week period, or during such shorter period as data is available to BidaSign; and
- interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date Client first makes payment to the subject Freelancer until the date the Opt-Out Fee is paid.
To pay the Opt-Out Fee, you must request instructions by sending an email message to firstname.lastname@example.org.
Except if you pay the Opt-Out Fee, you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you must not:
- Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
You agree to notify BidaSign immediately if another person improperly contacts you or suggests making or receiving payments outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to BidaSign by sending an email message to: email@example.com.
If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
- an “Opt-Out Fee” computed to be the greater of the following amounts:
SERVICE CONTRACT TERMS
Unless otherwise expressly agreed to in writing by both Users, the default terms and conditions of the Service Contract that a Freelancer enters directly with a Client when the Freelancer agrees to provide Freelancer Services to the Client are as set forth in this Section 11. Users may agree between them on any additional or different terms for their Service Contract as long as such terms do not and do not purport to affect the rights or responsibilities of BidaSign or violate the Terms of Service. BidaSign is not a party to any Service Contract by or between Users.
Users agree that the terms concerning the Service Contract described on the Site, including Freelancer Fees, rates, hours, and milestones, form part of the Service Contract. Users agree to obtain the consent of the other before making changes to the Service Contract by adding additional or different milestones or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract or accept such changes by continuing to work on the Service Contract.
Freelancer will perform the Freelancer Services in a professional and workmanlike manner and will timely deliver any agreed upon Work Product. The manner and means of performing the Freelancer Services will be determined and controlled solely by Freelancer, which is engaged by Client as an independent contractor.
- Responsibility for Employees and Subcontractors.
To ensure accurate billing, work billed for Hourly Contracts under a Freelancer’s Account must be performed by the Freelancer that has the Account.
If a User subcontracts with or employs third parties to perform Freelancer Services on behalf of the User for any Engagement, the User represents and warrants that it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations. As used in this Agreement, the term “Delegee” refers to any employee, independent contractor, or agent of a User, that the User engages to perform any work on its behalf under a Service Contract. Regardless of whether a User has Delegees, the User remains responsible for all services performed under the User’s Service Contracts, including ensuring that the services comply with the Terms of Service (including confidentiality and intellectual property obligations).
Freelancer, Agency, Delegee, and Client acknowledge and agree that Delegees are not employees, independent contractors or agents of BidaSign or Client. Agency, Delegee, and Freelancer represent, warrant, and covenant that: (a) Agency and, if applicable, each other User is solely responsible for all payments, obligations, wages, costs, unemployment insurance, workers’ compensation insurance, contributions, and expenses of Delegees; (b) neither BidaSign nor Client has the right or power to supervise or control Delegees; and (c) no Delegees of any Agency or other User will have any claim under this Agreement or the other Terms of Service for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from BidaSign or Client.
With respect to Delegees, BidaSign merely provides the platform for Agency or Freelancer to communicate and share information with Clients and, if they are Users, with Delegees. Agency, Delegee, and Freelancer understand and agree that the contract terms, pay rate, work hours, service dates and working conditions will be established by the Agency, Freelancer, and/or Client and not by BidaSign. Agency, Delegee, and Freelancer acknowledge and agree that Delegees are not employees or independent contractors of BidaSign, and further acknowledge and agree that they will not be providing any services to BidaSign (directly or indirectly) while employed or engaged by the Agency or another User.
Agency, Delegee, and Freelancer acknowledge and agree that BidaSign does not, in any way, supervise, direct, or control Delegees; BidaSign does not set Delegees’ contract terms (including determining whether the contract will be set at an hourly or fixed fee), fees, rates, work hours, work schedules, or location of work; BidaSign will not provide Delegees with training or any equipment, labor, or materials needed for a particular Service Contract; and BidaSign does not provide the premises at which the Delegees will perform the work.
- Client Payments and Billing.
For Hourly Contracts, Client becomes obligated for Freelancer Fees on a weekly basis. For Fixed-Price Contracts, Client becomes obligated immediately upon sending a Fixed-Price Contract offer or upon activating any additional milestone.
- Termination of Service Contract.
Under Hourly Contracts, either Client or Freelancer has the right to terminate the Service Contract after providing any required notice, or immediately on the end date specified in the Service Contract terms and/or upon completion of the Freelancer Services, in the event of a material breach, or with the consent of the other party. Except as required by law, Client remains obligated to pay the Freelancer Fees for any Freelancer Services provided prior to termination of the Hourly Contract.
Under Fixed-Price Contracts, once a Client’s Payment Method has been charged to fund the Stripe account for the Engagement, absent a full refund to Client by Freelancer, the Service Contract does not terminate until the Freelancer Services are completed. However, either Client or Freelancer has the right to terminate a Fixed-Price Contract at any time with the consent of the other party or in the event of a material breach. If a Fixed-Price Contract is terminated, Client does not have the right to recover any payments already released to Freelancer from the Stripe account for the Engagement.
- Intellectual Property Rights.
Upon Freelancer’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author and owner thereof. If Freelancer has any Intellectual Property Rights to the Work Product that are not owned by Client upon Freelancer’s receipt of payment from Client, Freelancer hereby automatically irrevocably assigns to Client all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Freelancer retains no rights to use, and will not challenge the validity of Client’s ownership in, such Intellectual Property Rights. Freelancer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered.
If Freelancer has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Client by Freelancer, Freelancer hereby automatically, upon Freelancer’s receipt of full payment from Client, unconditionally and irrevocably grants to Client during the term of such rights, an exclusive, even as to Freelancer, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Freelancer has any rights to such Work Product that cannot be assigned or licensed, Freelancer hereby automatically, upon Freelancer’s receipt of payment from Client, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Client or related to Client’s customers, with respect to such rights, and will, at Client’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
- Worker Classification.
Client is responsible and assumes all liability for determining whether Freelancers are independent contractors or employees and engaging them accordingly; BidaSign disclaims any liability for such determination or the related Engagement. The Terms of Service do not create a partnership or agency relationship between Users. Freelancer does not have authority to enter into written or oral (whether implied or express) contracts on behalf of BidaSign. For Service Contracts classified as independent contractor relationships, Client may not require an exclusive relationship. A Freelancer classified as an independent contractor is free at all times to provide Freelancer Services to persons or businesses other than Client, including any competitor of Client.
RELATIONSHIP WITH BIDASIGN
BidaSign is not a party to the dealings between Client and Freelancer, including posts, proposals, screening, selection, contracting, and performance of Freelancer Services. BidaSign does not introduce Freelancers to Clients or help Freelancers find Engagements. BidaSign merely makes the Site Services available to enable Freelancers to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of Freelancers for themselves. BidaSign does not, in any way, supervise, direct, or control Freelancer or Freelancer’s work. BidaSign does not set Freelancer’s work hours, work schedules, or location of work, nor is BidaSign involved in determining if the Freelancer Fees will be set at an hourly or fixed rate for a Service Contract. BidaSign will not provide Freelancer with training or any equipment, labor, or materials needed for a particular Service Contract. BidaSign does not provide the premises at which the Freelancer will perform the work. BidaSign makes no representations about, and does not guarantee the quality, safety, or legality of, the Freelancer Services; the truth or accuracy of Freelancer’s listings on the Site; the qualifications, background, or identities of Users; the ability of Freelancers to deliver the Freelancer Services; the ability of Clients to pay for the Freelancer Services; or that a Client or Freelancer can or will actually complete a transaction.
BidaSign does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Client or Freelancer, each of which is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority in any nation with respect to Freelancer’s performance, and Client’s acceptance, of Freelancer Services.
BidaSign is not required to and may not verify any feedback or information given to us by Freelancers or Clients, nor does BidaSign perform background checks on Freelancers or Clients.
You hereby acknowledge and agree that BidaSign may provide information on the Site about a Freelancer or Client, such as feedback, composite feedback, including a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that Freelancers or Clients voluntarily submit to BidaSign and does not constitute and will not be construed as an introduction, endorsement, or recommendation by BidaSign; BidaSign provides such information solely for the convenience of Users.
Users appoint BidaSign as a third-party beneficiary of their Service Contracts for purposes of enforcing any obligations owed to, and any benefits conferred on, BidaSign hereunder. For example, Section 8 of this Agreement prohibit certain terms in any Service Contract and BidaSign is hereby made a third-party beneficiary for purposes of enforcing such prohibitions. Users further agree that BidaSign has the right to take such actions with respect to their Accounts, including, without limitation, suspension, termination, or legal actions, as we, in our sole discretion, deem necessary to enforce our rights as a third-party beneficiary under the Service Contracts. The Terms of Service and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and BidaSign, except and solely to the extent expressly stated in this Agreement.
LICENSES AND THIRD-PARTY CONTENT
- Site License and Intellectual Property Rights.
Subject to and conditioned on compliance with the Terms of Service, BidaSign grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services. You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available. You agree not to use the Site or Site Services for offering any goods or services other than Freelancer Services as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose. You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing. You must not frame or link to the Site or Site Services. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services. BidaSign and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The BidaSign logos and names are trademarks of BidaSign and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of BidaSign’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
- User Content License.
When you post User Content on the Site or through the Site Services or provide BidaSign with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below. You further represent and warrant that by posting or providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that BidaSign may exercise the rights to your User Content granted under the Terms of Service without any liability or obligation for any payment.
The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site. Notwithstanding the aforementioned, you grant BidaSign and our successors and Affiliates the irrevocable and perpetual license to retain and use server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
- Unauthorized Access and Use; Site Interference, Malicious Software.
BidaSign uses robot exclusion headers throughout The Site, and thus, you agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services. You agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of BidaSign or any third party.
- Site License and Intellectual Property Rights.
To the extent a Client or Freelancer provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (b) not use or permit the use of another’s Confidential Information, except as necessary for the performance of Freelancer Services and (c) limit access to another’s Confidential Information to its personnel who need to know such information for the performance of Freelancer Services.
Upon completion of the Freelancer Services, or at the request of the disclosing party, the receiving party shall destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control, at the receiving party’s expense.
- Protection of Proprietary Rights.
Each party acknowledges that the Freelancer Services are provided on a managed basis and, therefore, pursuant to this Agreement no right, title or interest in or to the Freelancer Services or any related intellectual property is assigned to the Client or its Affiliates and Freelancer retains all title, patent, copyright, and other Intellectual Property Rights that they have thereto. Freelancer acknowledges that pursuant to this Agreement, no right, title or interest in or to any of Client’s intellectual property rights is transferred or licensed, and Client retains all title, patent, copyright, and other Intellectual Property Rights.
- Use of Marks.
Neither Party will issue a news release, public announcement, advertisement, or other form of publicity concerning the existence of this Agreement or the services to be provided hereunder without obtaining the prior written approval of BidaSign and the other Party, which may be withheld in Bidasign’s and/or the other Party’s sole discretion. Neither Party will use BidaSign’s name or any trademark, service mark or logo of BidaSign’s, without BidaSign’s express prior written permission specifically relating to such use. The logo, brand or other trademark or service mark (“Marks”) of BidaSign will remain the exclusive property of BidaSign and neither Party has and will have no right to such Marks. All use of the Marks of BidaSign will be deemed to inure only to the benefit of the owner of such Mark. Neither Party will have the right to use any of BidaSign’s Marks without the express written consent of BidaSign. Any approved use of the Marks of BidaSign will be in accord with BidaSign’s further instructions sent to the approved party. This provision grants Client and/or Freelancer no rights whatsoever to BidaSign’s trademarks or trade names except as may be authorized under this Agreement. Neither Party will use the opposing Party’s name or any trademark, service mark or logo of the other party, without the opposing Party’s express prior written permission specifically relating to such use. The logo, brand or other trademark or service mark (“Marks”) of each Party will remain the exclusive property of each Party and neither Party has and will have no right to such Marks. All use of the Marks of BidaSign will be deemed to inure only to the benefit of the owner of such Mark.
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. BIDASIGN MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIDASIGN 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. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
BidaSign is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
In addition to the recognition that BidaSign is not a party to any contract between Users, you hereby release BidaSign, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity. This does not apply to any claims against BidaSign for breach of this Agreement.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- General Indemnity.
Client and/or Freelancer shall release, defend, indemnify and hold BidaSign, its parents, subsidiaries and affiliated or related companies, and its and their respective officers, directors, employees, consultants, agents and invitees harmless from and against any and all claims, demands, causes of action, liabilities, damages, judgments, awards, losses, costs, fines, penalties and expenses (including reasonable attorneys’ fees and costs of litigation) of any kind or character (“Claims”), in respect of personal or bodily injury to, sickness, disease or death of, and in respect of damage to or loss or destruction of property owned, leased, rented, or hired by Client and/or Freelancer or its employees, consultants, agents or invitees or Client and/or Freelancer’s subcontractors at any tier or their employees, consultants, agents or invitees, arising out of or in connection with the performance of this contract, REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION ANY FORM OF NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY (EXPRESS OR IMPLIED), BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF CONTRACT, OR ANY OTHER LEGAL FAULT OR RESPONSIBILITY OF COMPANY, CONTRACTOR, OR ANY OTHER PERSON, PARTY OR ENTITY.
- Consequential Damages.
Notwithstanding anything contained in this contract to the contrary, Client and/or Freelancer shall be liable for, and hereby agrees to release, indemnify, defend and hold BidaSign, its parents, subsidiaries, licensors, third party service providers, and affiliated or related companies, and its and their respective directors, officers, employees, consultants, agents and invitees, harmless from and against any and all indirect, incidental, special, punitive, exemplary or consequential damages or losses (whether foreseeable or not at the date of this contract), which shall include, without limitation, any and all damages or losses for lost production, lost revenue, lost product, lost profit, litigation costs, installation and removal costs, loss of data, lost business or business interruptions incurred by, or in favor of, Client and/or Freelancer or its co-lessees, co-owners, partners, joint operators and joint venturers, if any, and its and their parents, subsidiaries, licensors, third party service providers, and affiliated or related companies, arising out of, or in connection with, the performance of or subject matter of this contract, REGARDLESS OF THE CAUSE, INCLUDING WITHOUT LIMITATION ANY FORM OF NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY (EXPRESS OR IMPLIED), BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF CONTRACT, OR ANY OTHER LEGAL FAULT OR RESPONSIBILITY OF BIDASIGN, ITS EMPLOYEES OR AGENTS, OR ANY OTHER PERSON OR PARTY.
- Indemnity Obligations.
Except as otherwise expressly limited herein, it is the intent of Parties that ALL INDEMNITY OBLIGATIONS AND/OR LIABILITIES ASSUMED BY SUCH PARTIES UNDER TERMS OF THIS AGREEMENT ARE WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, INCLUDING PREEXISTING CONDITIONS, STRICT LIABILITY, FAULT, BREACH OF CONTRACT OR WARRANTY, OR THE NEGLIGENCE OF ANY PERSON OR PARTY, INCLUDING THE INDEMNIFIED PARTY OR PARTIES, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT, CONTRIBUTORY, OR CONCURRENT, ACTIVE OR PASSIVE, ORDINARY OR GROSS. All indemnities in this Agreement will apply even though an insurer or other person or entity is required to pay for any claim or make a contribution to such claim. Except to the extent prohibited by law, even though insurance may be arranged or other persons or entities may have certain liabilities or obligations, each Party remains responsible for its indemnity and other obligations under this Agreement, even if such insurer or such other person or entity, for any reason, does not satisfy such liability or obligation.
- General Indemnity.
- Termination Between User and BidaSign
Either User or BidaSign may terminate this Agreement without cause. User may terminate this Agreement by closing their BidaSign account or by writing to BidaSign expressing the desire to terminate the Agreement. BidaSign may terminate, but is not obliged to terminate, this Agreement by suspending or revoking User’s access to the Site upon belief User has violated or acted inconsistently with the spirit of this Agreement or the rights of another party, in BidaSign’s sole discretion. Without limitation, BidaSign may suspend or close User’s account, use self-help in reclaiming funds, and refuse to procide any further access to the Site if User (a) breaches any term or condition of this Agreement; (b) BidaSign is unable to verify or authenticate any information provided by User; or (c) BidaSign believes that User’s actions may cause legal liability for BidaSign, other Users, or User. Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF BIDASIGN DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, BIDASIGN HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
- Consequences of Termination.
Termination of this Agreement will not terminate any of the Parties’ rights and obligations under work commenced prior to the effective date of the termination, and this Agreement will remain in full force and effect, and continue to control and govern all work under all outstanding job orders, for the duration of the work thereunder. Termination will not relieve any Party of its respective liability arising from or incident to work performed, or breach of any of the terms hereof, prior to the effective date of the termination. Termination of this Agreement, by either BidaSign or User, will not relieve Client of the requirement to pay for Freelancer Services performed prior to the date of termination or thereafter for any Service Contracts executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Client hereby authorizes BidaSign to charge to its Payment Method pursuant to Section 9 (Payment Terms).
- Termination Between User and BidaSign
- Informal Dispute Resolution.
For disputes arising between Clients and Freelancers, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract.
If a dispute arises between you and BidaSign or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, BidaSign, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, your relationship with BidaSign, the termination of your relationship with BidaSign, or the Site Services (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any Service Contract, escrow payments or agreements, any payments or monies you claim are due to you from BidaSign or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in any state, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with BidaSign or the termination of that relationship. Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision. You agree that any and all Claims must be resolved as described throughout this Agreement.
- Alternative Dispute Resolution.
All disputes (the "Dispute") arising out of or relating to this Agreement or the furnishing of Work hereunder shall be resolved by final and binding arbitration, conducted in accordance with the Commercial Rules of Arbitration of the American Arbitration Association (the "Rules") which are deemed to be incorporated by reference. The tribunal shall be composed of one (1) neutral arbitrator if the Dispute involves a maximum exposure of less than $1,000,000. If the Parties are unable to agree on a neutral arbitrator, one will be appointed pursuant to the Rules. If the Dispute involves a maximum exposure in excess of $1,000,000, then the Tribunal shall consist of three (3) arbitrators, with each Party appointing one arbitrator, and the two arbitrators so appointed appointing the third arbitrator who shall act as Chair (the "Tribunal"). The place of arbitration shall be Shoreline, Washington, and the proceedings shall be conducted and concluded as soon as reasonably practicable, based upon the schedule established by the Tribunal, which the Tribunal may modify for good cause shown. No award shall be made for punitive, special, exemplary, or consequential damages or losses, including loss of profits or loss of business opportunity. Judgment on the award may be entered in, and enforced by, any court of competent jurisdiction. All statutes of limitation that would otherwise be applicable shall apply to the Dispute. Any attorney-client privilege and other protection against disclosure of privileged or confidential information, including without limitation, any protection afforded the work-product of any attorney, that could otherwise be claimed by any Party shall be available to, and may be claimed by, any such Party in any arbitration proceeding. The Parties shall treat all matters relating to the arbitration as confidential. Subject to each Party’s right to cooperate fully with the United States’ authorities, the Parties understand and agree that this confidentiality obligation extends to information concerning the fact of any request for arbitration, and any ongoing arbitration, as well as all matters discussed, discovered, or divulged, (whether voluntarily or by compulsion) during the course of such arbitration proceeding. It is the desire of the Parties that any Dispute is resolved efficiently and fairly and the Tribunal shall act in a manner consistent with these intentions.
- Class Action and Jury Trial Waiver.
This arbitration provision affects your ability to participate in class, collective or representative actions. Both you and BidaSign agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding (“Class Action Waiver”). The Class Action Waiver does not prevent you from bringing a Claim in arbitration as a private attorney general solely on your own behalf and not on behalf of others. Notwithstanding any other portion of this Arbitration Provision or the JAMS Rules, the arbitrator will have authority to hear any Claim on a class, collective, or representative basis if, only if, and only to the extent that, the arbitrator determines that the waiver of such class, collective, or representative Claim is unenforceable. You and BidaSign agree that you will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights under Section 7 of the National Labor Relations Act by filing or participating in a class, collective or representative action in any forum. However, BidaSign may lawfully seek enforcement of this arbitration provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims.
You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying BidaSign in writing within 30 days of the date you first registered for the Site, stating: (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
- Informal Dispute Resolution.
Redress under the indemnity and release provisions set forth in this Agreement shall be the exclusive remedy/remedies available to the Parties for the Claims covered by such provisions.
Subject to the foregoing, these Terms set forth the entire and complete agreement of the parties as to the subject matter hereof, and supersedes any and all proposals, negotiations, agreements, and representations of the Parties prior to the execution hereof, including without limitation, prior drafts or prior versions of these Terms.
- Enforcement and Waiver.
BidaSign’s failure to enforce any rights granted by these Terms or to take action against any other party in the event of any breach shall not be deemed a waiver by BidaSign as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
In the performance of Freelancer Services for Client, Freelancer shall comply (and shall cause and require its subcontractors and its and their employees and agents to comply) with all laws, rules, regulations and orders (federal, state, local or otherwise) that are now or may hereafter become applicable to Freelancer’s business, equipment or personnel or to such Freelancer Service. If any terms of this Agreement are in conflict with any such law, rule, regulation or order, the terms of this Agreement so in conflict shall not apply and such law, rule, regulation or order shall prevail.
- Modifications and Amendments.
No amendment, change, modification, waiver, extension, renewal, ratification, rescission or discharge of this Agreement or of any provision hereof or any representation, promise or condition relating to this Agreement shall be binding upon a Party unless made in writing, signed by the Parties, and specifically referencing this Agreement.
This Agreement shall be binding upon the Parties and their respective successors, heirs, and assigns; provided, however, that neither this Agreement nor the Work performed or provided hereunder shall be assigned or subcontracted by Freelancer without the written consent of Client and that any assignment or subcontract shall not relieve Freelancer of its obligations hereunder. Neither this Agreement nor the Work performed or provided hereunder shall be assigned or subcontracted by Client without the written consent of Freelancer and that any assignment or subcontract shall not relieve Freelancer of its obligations hereunder.
In the event one or more of the provisions contained in this Agreement shall be held, for any reason, to be invalid, void, illegal, contrary to law and/or unenforceable in any respect, this Agreement shall be deemed to be amended to partially or completely modify such provision or portion thereof to the extent necessary to make it enforceable. If necessary, this Agreement shall be deemed to be amended to delete the unenforceable provision or portion thereof, in which event such invalidity, voidness, illegality or unenforceability shall not affect the remaining provisions hereof and this Agreement shall remain unaffected and shall be construed as if such invalid, void, illegal or unenforceable provision never had been contained herein. The Parties agree and acknowledge that this Agreement has been jointly drafted and negotiated by both Parties and thus that no provision shall be construed against a Party on grounds that it drafted, proposed or revised such provision (or any other proposed or final provision for this Agreement).
- Force Majeure.
Neither party shall be considered in breach of an obligation under the Terms, other than obligations to pay money, to the extent the party can demonstrate that fulfillment of the obligation has been prevented by a force majeure event. "Force majeure" shall include, but not be limited to, acts of God, laws and regulations, strikes, lightening, fire, flood, washout, storm, war (declared or undeclared), acts or threats of terrorism, breakage or accident to equipment or machinery, and any other causes that are not reasonably within the control of the party affected.
- Governing Law.
This Agreement shall be governed and construed in accordance with the laws of the State of Washington (excluding any choice-of-law rule that would refer to the law of another jurisdiction, except as otherwise expressly provided herein, provided, however, if any portion of the work or services to be provided takes place in, upon or over the navigable waters of the United States of America, then this Agreement will be governed and controlled exclusively by the General Maritime Law of the United States of America. The Parties agree that any conflicts shall be resolved in accordance with the Alternative Dispute Resolution section, however should the Parties bring any action in a court, the Parties consent to personal jurisdiction in any action brought in any court, federal or state, within Washington, having subject matter jurisdiction arising under this Agreement. With respect to any such claim, the Parties irrevocably waive, to the fullest extent permitted by law, any claim, or any objection they may now or hereafter have, that venue is not proper to any such suit, action, or proceeding brought in such a court in Shoreline, Washington, including any claim that such suit, action, or proceeding brought in such court has been brought in an inconvenient forum and any claim that a party is not subject to personal jurisdiction or service of process in such Shoreline, Washington forum.
Any notices to BidaSign provided for herein shall be in writing and sent by prepaid mail (or hand-delivery or a nationally recognized courier company) to BidaSign at the addresses stated below or by email at firstname.lastname@example.org:
19414 Aurora Ave. N, Unit 104 Shoreline, Washington 98133
Attn: Andy Herman
Headings and titles are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute the same single agreement.