”) constitute a legally binding agreement between you (“Customer
” or “you
”) and Frictionless Enterprises, Inc. (“Frictionless
” or “we
” or “us
” means, collectively, Frictionless’ website (https://www.gohyer.com
, the “Site
”), the Hyer mobile application (the “App
”), and any related services provided by Frictionless, including without limitation communications and information (whether in writing, orally, or otherwise) provided by Frictionless.
THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND FRICTIONLESS CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 28, AS APPLICABLE). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 28, AS APPLICABLE) AND YOU HAVE ACCEPTED ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT USE OR ACCESS THE HYER PLATFORM.
2. THE HYER PLATFORM
The Hyer Platform is a communications platform which enables connections between Customers and Taskers. “Customers
” are individuals or businesses seeking to obtain short-term services (“Tasks
”) from individuals seeking to perform such Tasks (“Taskers
As a Customer, you define the terms of a Task, and if the Tasker agrees to the terms of your Task, you and the Tasker form a legally binding services contract (the “Task Agreement
”), in accordance with the terms in Section 4.
” means Customers and Taskers together.
As a Customer, you acknowledge that the Hyer Platform only enables connections between Users for the fulfillment of Tasks. Frictionless is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect of Tasks, Taskers, Customers, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions of any Users, or of any ratings provided by Users with respect to each other. Frictionless makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Tasks requested or services provided by, or the communications of or between, Users identified through the Hyer Platform, whether in public, private, or offline interactions or otherwise.
You further acknowledge that:
- (i) the Hyer Platform allows you to connect with Taskers for a variety of Tasks; there is no minimum or maximum number of Tasks you can post;
- (ii) you decide which Tasker to choose for your Task and direct, control, and monitor a Tasker’s work;
- (iii) we strive to provide a high level of satisfaction through our Hyer Standard, including refunding or crediting you if Tasks don’t meet the Hyer Standard;
- (iv) Taskers are independent contractors; Frictionless is not a temporary employment agency or an employer and therefore does not provide Taskers employee benefits, workers’ compensation or withhold taxes from their fee;
- (v) the Hyer Platform coordinates payment of the Tasker’s fee and generation of Internal Revenue Service (“IRS”) Form 1099-MISC or 1099-K via a third party Payment Service Provider (“PSP”);
- (vi) the Hyer Platform only supports engaging Taskers as independent contractors, not employees; it is your responsibility to ensure the work you are asking Taskers to do will not classify them as employees;
- (vii) your use of the Hyer Platform and Taskers is at your own risk, “as is” and without any warranties; Frictionless is not responsible for, and you release us from, any claims or losses resulting from your use of the Hyer Platform or a Tasker’s work or conduct;
- (viii) you will not schedule any of the following as Tasks through the Hyer Platform (collectively, the “Excluded Tasks”):
- Tasks that make the Tasker unsafe or reasonably likely to cause injury to a Tasker;
- Tasks that involve the handling of weapons, explosives or hazardous materials; or
- any Task that is illegal or criminal in nature in the state or locality in which it is posted or takes place; and
- (ix) any disputes with Taskers or us are resolved via individual binding arbitration, unless you opt out, in accordance to Section 28(d).
3. CUSTOMER VETTING
Collection of Customer email addresses and phone numbers is part of the sign-up process on the Hyer Platform. To assure the safety and security of Taskers on the Hyer Platform, in Frictionless’ sole discretion, Customers may be subjected to additional vetting process as part of registration or during their use of the Hyer Platform, including but not limited to a verification of identity, using third party services as appropriate (“Identity Checks
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know.
FRICTIONLESS WILL NOT BE LIABLE FOR ANY FALSE OR MISLEADING STATEMENTS MADE BY USERS OF THE HYER PLATFORM. NEITHER FRICTIONLESS NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (TOGETHER, “AFFILIATES
”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE HYER PLATFORM AND YOU HEREBY RELEASE FRICTIONLESS AND ITS AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE HYER PLATFORM.
4. TASK AGREEMENT
You acknowledge and agree that a Task Agreement is formed when you agree on the terms of a Task with a Tasker. Agreement on the terms of a Task is obtained after the description of a Task is reviewed by a Tasker in the App,
and then accepted through either of the following mechanisms:
- (i) an “Accept” button for a private Task (not publicly visible and sent directly to a specific Tasker or a set of Taskers); or
- (ii) an “Apply” button for a public Task (visible to all Taskers in the App) in which case the Customer confirms the Tasker by tapping on the “Confirm this Tasker” button.
In either case, the Task goes into “Scheduled” status, indicating the acceptance of the terms of a Task Agreement by Tasker and Customer.
The terms of the Task Agreement include the engagement terms proposed and accepted on the Hyer Platform, and any other contractual terms accepted by both the Tasker and their Customer to the extent such terms do not conflict with the terms in this Agreement, and do not expand Frictionless’ obligations or restrict Frictionless’ rights under this Agreement. You agree that Frictionless is not a party to any Task Agreement and the formation of a Task Agreement will not, under any circumstance, create an employment or other service relationship between Frictionless and the Tasker, nor will it create an employment relationship between the Customer and the Tasker. Frictionless’ role is providing the Hyer Platform and acting as a limited payment and exclusive collection agent for the Tasker to facilitate payment to the Tasker through the Hyer Platform using the PSP in respect of Tasks they perform. The Customer shall pay their Tasker directly for completed Tasks through the PSP as indicated on the Hyer Platform at the rates agreed to by the Users in the Task Agreement. In acting as the limited payment collection agent for particular Tasks on the Hyer Platform, Frictionless disclaims any other agency or authority to act on behalf of the Tasker, and assumes no liability or responsibility for any acts or omissions of the Tasker, either within or outside of the Hyer Platform.
While using the Hyer Platform, Customers, in their sole discretion, determine whether they will be present or not when a Task is performed and/or completed. Customers who elect not to be present when a Task is performed and/or completed agree that if someone other than them is present when the Task is performed, they are appointing that person as their agent.
Each User agrees to comply with the Task Agreement and this Agreement during the engagement, performance and completion of a Task. Both Users agree to notify Frictionless of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via company representatives for at least thirty (30) days before initiating any proceeding. Frictionless reserves the right to suspend or terminate any User account (“Account
”) or Task pending the resolution of any dispute.
5. TASK FEE; SERVICE FEE; PSP FEE
- Task Fee
Customers shall be charged a Task Fee pursuant to the rates quoted via the Hyer Platform, which shall be based on the stated terms of the Task and the location where the Task is to be performed. Customers shall have a temporary authorization placed on their payment method (Credit Card or Debit Card) when they book a Tasker, and will be charged (along with the Service Fee and PSP Fee described below) upon confirmation of the completion of the Task (which shall take place no later than twenty-four (24) hours after a Task is completed). The Task Fee is determined based on the following:
- (i) Type and duration of the Task (which may be subject to hourly rates or a flat fee);
- (ii) Customer hourly rate or flat fee as specified during creation of a Task, which results in a search of matching Taskers; and
- (iii) Tasker hourly rate per Task or flat fee, as specified in the Tasker’s profile in the Hyer Platform (for the avoidance of doubt, Tasker may specify the type of Tasks they would like to perform (e.g., merchandising, delivery, retail help, snow removal) and the related hourly rate or flat fee per Task).
- Service Fee
Frictionless will assess a service fee (“Service Fee”
) to support the Hyer Platform, including costs related to Identity Checks, customer support, and related services provided to you by the Hyer Platform. The Service Fee will be applied to each appointment of a Task requested through the Hyer Platform, and charged to the Customer payment method along with the Task Fee and PSP Fee. Frictionless has the authority and reserves the right to determine and modify pricing by posting revised applicable Service Fees to the App or by applying discounts to the posted Service Fee, which will be disclosed to you prior to your registration as a Customer or acceptance of a Task. You are responsible for reviewing the applicable Service Fee prior to the submission or acceptance of a Task. As a Customer, you shall be responsible for all incurred Service Fees charged under your Account.
- PSP Fee
Frictionless will include a PSP fee (“PSP Fee”
) for payment (credit or debit card) processing and cancellation fees. This fee, if incurred, will be in addition to the Task Fee and the Service Fee. The PSP Fee will be applied to each appointment of a Task requested through the Hyer Platform, and charged to the Customer along with the Task Fee and Service Fee. Frictionless has the authority and reserves the right to determine and modify pricing by posting revised applicable PSP Fee to the App or by applying discounts to the posted PSP Fee, which will be disclosed to you prior to your registration as a Customer or acceptance of a Task. You are responsible for reviewing the applicable PSP Fee prior to the submission or acceptance of a Task. As a Customer, you shall be responsible for all incurred PSP Fees charged under your Account.
Payment of the Task Fee through the Hyer Platform is made directly from the Customer to the Tasker via the PSP, and not by Frictionless. For the avoidance of doubt, Frictionless is not obligated to pay Tasker for Customer’s failure to pay for services. Customers of the Hyer Platform will be required to provide their payment method details to Frictionless and the PSP.
- Customer Payments
As a Customer, we will place a temporary authorization on your credit or debit card when booking a Tasker, and charge such card according to the aggregate expense for the Task you get performed through the Hyer Platform, which amount will include: (i) the Task Fee applicable to the Task performed for you by the Tasker, (ii) the Service Fee, and (iii) the PSP Fee applicable to the Task performed for you by the Tasker. You hereby authorize us to charge the credit card on file in your Account for such amounts upon your verification of the completion of the Task (which shall take place no later than twenty-four (24) hours after a Task is completed).
- PSP Fee
The PSP may assess a PSP Fee for payment (credit or debit card) processing. This fee is 2.9% of the aggregate expense amount, and is subject to change by the PSP.
Customers may be charged a cancellation fee through the PSP if you book a Task, but cancel it before the scheduled time for performance within a twenty four (24)-hour period. Details of cancellation fee are in Section 14 and accessible in our frequently asked questions page (the “Hyer FAQ
” at https://www.gohyer.com/faq
Frictionless reserves the right (but not the obligation), upon request from Customer or Tasker, or upon notice of any potential fraud, unauthorized charges or other misuse of the Hyer Platform, to (i) place on hold any Task payment, (ii) refund or provide credits, or arrange for the PSP to do so, or (iii) barring the Customer or Tasker from using the Hyer Platform.
Task payment and fees must be paid through the PSP as indicated on the Hyer Platform. Customers shall not pay any Tasker for any Task, directly or indirectly, through any other means.
Customers will be liable for any taxes required to be paid on the Tasks provided under the Agreement.
7. YOUR REPRESENTATION AND WARRANTIES
- (i) you are at least 18 years old, are of legal age to form a binding contract with Frictionless in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts;
- (ii) you have the right, authority and capacity to enter into this Agreement;
- (iv) you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or that is otherwise inconsistent with this Agreement;
- (vi) you will respect the privacy, property and data protection rights of Users and that you will not record (whether video or audio or otherwise) any Task or any interaction by or with any User and/or Frictionless in connection with the Hyer Platform without the prior written consent of Frictionless and/or the relevant User, as applicable;
- (vii) you will fulfill the commitments you make to Taskers, including paying Taskers through the Hyer Platform using the PSP, communicating clearly and promptly through communication channels provided by the Hyer Platform and/or responding to invitations promptly, being present and/or available at the time you agree upon with your Tasker, and only utilizing the PSP specified or approved by us to make payments for services provided through the Hyer Platform;
- (viii) you will act professionally and responsibly in your interactions with Taskers;
- (ix) other than as fully and promptly disclosed to Frictionless, you do not have any motivation, status, or interest which Frictionless may reasonably wish to know about in connection with the Hyer Platform, including without limitation, if you are using or will or intend to use the Hyer Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Frictionless in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Hyer Platform; and
- (x) you further represent and warrant that when using or accessing the Hyer Platform, you will act in good faith and in accordance with any applicable local, state, national, or international law or custom.
8. WORKER CLASSIFICATION
FRICTIONLESS DOES NOT PERFORM TASKS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TASKS.
FRICTIONLESS DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A TASKER’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE TASKS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
EACH CUSTOMER AND TASKER ASSUME ALL LIABILITY FOR PROPER CLASSIFICATION OF THE TASKER’S STATUS AS INDEPENDENT CONTRACTORS AND NOT EMPLOYEES. YOU INDEMNIFY AND HOLD FRICTIONLESS AND ITS AFFILIATES HARMLESS FROM ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, LOSSES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES THAT YOU OR TASKERS MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, LAW, STATUTE OR OTHERWISE, IN RESPECT OF TASKS OR SERVICE AGREEMENTS OR THE USE OF THE HYER PLATFORM, INCLUDING WITH RESPECT TO MISCLASSIFICATION OF TASKERS AND THE TERMINATION OR CESSATION OF ANY TASKS, SERVICE AGREEMENTS, THIS AGREEMENT OR THE USE OF THE HYER PLATFORM.
9. NO AGENCY; NO EMPLOYMENT
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
Customers do not have authority to enter into written or oral (whether implied or express) contracts on behalf of Frictionless. Each Customer acknowledges and agrees that Frictionless does not, in any way, supervise, scope, direct, control or monitor a Tasker’s work or Tasks performed in any manner. Frictionless does not set a Tasker’s work hours or location of work. Frictionless will not provide any equipment, tools, labor or materials needed for a particular Task. Frictionless does not provide any supervision to Taskers.
The Hyer Platform is not an employment agency service or business and Frictionless is not an employer of any Tasker. As such, Frictionless is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, pension plan, social security, disability insurance or any other applicable federal or state withholdings in connection with a User’s use of the Hyer Platform. Customer acknowledges that Taskers are responsible for exercising their own business judgment in entering into Task Agreements and performing Tasks and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
Customers and Taskers are responsible for identifying and obtaining any required licenses, permits, or registrations before undertaking Tasks. Certain types of Tasks and services may be prohibited altogether, and it is the responsibility of Customers and Taskers to avoid undertaking any prohibited Tasks and services. Penalties may include fines or other enforcement. Because Frictionless does not oversee, monitor or supervise the posting, scoping or performance of Tasks, Customers must determine for themselves whether a Tasker is qualified to perform the specific Task at hand. Customers may wish to verify any local requirements or consult with counsel for confirming whether certain Tasks are required to be performed by a licensed professional.
Frictionless or its Affiliates do not provide insurance against any losses sustained by Customers.
To the extent required by the IRS, Frictionless will report the payments made to Taskers for Tasks performed on The Hyer Platform by filing Form 1099-MISC or 1099-K with IRS through the PSP. In order to issue Form 1099-MISC or 1099-K Frictionless may ask you to provide any proper reporting and payment of taxes information. Details are accessible in the Hyer FAQ
, at https://www.gohyer.com/faq
13. THE HYER STANDARD
Frictionless is committed to providing a high level of satisfaction with your Hyer Platform experience. This includes clarity and expectation-setting for Customers to facilitate accurate Task execution. Specifics are accessible in the Hyer FAQ
, at https://www.gohyer.com/faq
The Hyer standard of service is that the Task you order and pay for will be performed as described in the description of the Task when you ordered it (the “Hyer Standard
”). If you have ordered and paid for a Task but you believe the Task was not performed in accordance with the Hyer Standard you must report the issue within twenty-four (24) hours of the Task appointment to our support center at email@example.com
or firstname.lastname@example.org and respond to all follow up questions requested of you from the support center, and you may be eligible for the Hyer Standard. For the avoidance of doubt, the Hyer Standard is subject to the limitations set forth in Section 26.
If we determine that the execution of a Task does not meet the Hyer Standard, we will, in our sole discretion, either refund the payment you actually made for such Task, or provide credit equal to the amount charged for the Task, for the next Task on The Hyer Platform. The amount of the Hyer Standard is limited to any payment you made for the Task. The Hyer Standard does not apply to any payments made for Tasks not scheduled and paid for through the Hyer Platform. This refund or credit shall be the sole remedy for any Task that does not meet the Hyer Standard.
Frictionless reserves the right in its sole discretion to eliminate or modify the Hyer Standard terms at any time, effective with or without notice and without any liability to Frictionless, although Frictionless will endeavor to post notification of any material changes.
14. TASK CANCELLATION
The Hyer Platform is committed to providing a reliable, consistent, and highly responsive experience to Customers and Taskers alike.
While we know schedules can change quickly, cancelling a Task with short notice causes Taskers to lose valuable work. Therefore, fees apply if Tasks are cancelled within a twenty-four (24) hour window.
As a Customer, you may cancel your scheduled Task appointments through the App at any time, subject to the following:
- (i) if you cancel more than twenty-four (24) hours before a scheduled Task appointment, there is no cancellation fee;
- (ii) if you cancel between two (2) to twenty-four (24) hours before a scheduled Task appointment, you may be charged one (1) hour of Task time, based on the Tasker’s applicable hourly rate;
- (iii) if you cancel less than two (2) hours before a Task appointment, you may be charged the higher of: (A) 50% of the total Task Fee, or (B) two (2) hours of Tasker’s applicable hourly rate.
- Missed Appointment.
If Tasker arrives at Task site but (i) Customer is unavailable, (ii) Tasker is unable to gain entry, or (iii) Tasker is unable to get started due to Customer / Task site constraints, you may be charged 50% of the amount. Frictionless customer support will coordinate with you to reschedule the Task.
Further details on Frictionless’ Task cancellation policy and Tasker responsibilities are accessible through the Hyer FAQ,
15. COMMUNITY AREAS AND GUIDELINES; ACCEPTABLE USE
We want Hyer to be enjoyable and safe for everyone. These ground rules are designed to ensure that Customers and Taskers have a five-star experience when using Hyer. The Hyer Platform may contain profiles, email systems, reviews, ratings, applications, job postings, comments, and/or other message or communication facilities (“Community Areas
”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Hyer Platform, you should not share your personal contact information with other Users.
Without limitation, while using the Hyer Platform, you may not:
- (i) defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and Frictionless’ staff, or use information learned from the Hyer Platform or during the performance of Tasks to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other User or Frictionless staff;
- (ii) publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Hyer Platform (including pornography of any kind);
- (iii) use the Hyer Platform for any unauthorized purpose, including, but not limited to posting a Task in violation of local, state, national, or international law;
- (iv) upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or Frictionless;
- (v) upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer;
- (vi) post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly;
- (vii) advertise or offer to sell any goods or services for any commercial purpose through the Hyer Platform which are not relevant to the Tasks offered through the Hyer Platform;
- (ix) conduct or forward surveys, contests, pyramid schemes, or chain letters;
- (x) impersonate another person or a User or allow any other person or entity to use your identification to post or view comments;
- (xi) post the same Task repeatedly or any form of spamming, which is strictly prohibited;
- (xii) download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Hyer Platform;
- (xiii) restrict or inhibit any other User from using and enjoying the Community Areas;
- (xiv) imply or state that any statements you make are endorsed by Frictionless, without the prior written consent of Frictionless;
- (xv) use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage, or index the Hyer Platform, or the electronic addresses or personal information of others, in any manner;
- (xvi) hack or interfere with the Hyer Platform, its servers or any connected networks;
- (xvii) adapt, alter, license, sublicense or translate the Hyer Platform for your own personal or commercial use;
- (xviii) remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Frictionless or its Affiliates;
- (xix) upload content to the Hyer Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
- (xx) upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
- (xxi) use the Hyer Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Hyer Platform as set forth herein;
- (xxii) use the Hyer Platform to collect usernames, email addresses, or other personal information of Users by electronic or other means;
- (xxiii) use the Hyer Platform or the Tasks in violation of this Agreement;
- (xxiv) use the Hyer Platform in a manner that is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Frictionless’ trade secret information for public disclosure or other purposes;
- (xxv) attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the Hyer Platform;
- (xxvi) register under different usernames or identities after your Account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number; or
- (xxvii) cause any third party to engage in the restricted activities above.
You understand that all submissions made to Community Areas will be public and that you will be publicly identified by your name or login identification when communicating in Community Areas. Frictionless will not be responsible for the action of any Users with respect to any information or materials posted in Community Areas.
16. NON-DISCRIMINATION POLICY
Frictionless and its affiliates prohibit discrimination against Customers or Taskers based on race, religion, national origin, disability, sexual orientation, sex, marital status, gender identity, age or any other characteristic protected under applicable federal, state or local law. Such discrimination includes, but is not limited to, refusing to provide or accept services based on any of these characteristics. Any Customer or Tasker found to have violated this prohibition will lose access to the Hyer Platform, in addition to any other liability under applicable law.
17. MOBILE APP UPDATES AND UPGRADES
To help maintain the quality of the Hyer Platform, Users (both Customers and Taskers) will have the opportunity to rate each other after the completion of Tasks. Rating thresholds will determine when an Account is placed under review, deactivated, or terminated. For details, please visit the Hyer FAQ,
19. ACCOUNT REVIEW, DEACTIVATION, AND TERMINATION
Frictionless may place under review, deactivate, or terminate your right to use the Hyer Platform in the event that we are investigating or believe that you have breached any provision of this Agreement, or by providing you with written or email notice. Such action will be effective immediately upon delivery of such notice.
Frictionless may place your Account under review if your ratings fall below a certain threshold, to ensure your ratings are improving.
If Frictionless places under review, deactivates or terminates your right to use the Hyer Platform pursuant to this Section 19, you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
Frictionless reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Hyer Platform at its sole discretion. Frictionless is not liable to you for any modification or discontinuance of all or any portion of the Hyer Platform. Frictionless has the right to restrict anyone from completing registration as a Customer if Frictionless believes such person may threaten the safety and integrity of the Hyer Platform, or if, in Frictionless’ discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Hyer Platform. Sections 15 through 28 shall survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
20. ACCOUNT, SECURITY, AND MOBILE USE
You must register with Frictionless and create an Account to use the Hyer Platform. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and Account number provided by you or given to you by Frictionless for accessing the Hyer Platform. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. Frictionless has no control over the use of any Account and expressly disclaims any liability derived therefrom. If you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you agree to contact Frictionless immediately. By providing your mobile phone number and using the Hyer Platform, you hereby affirmatively consent to Frictionless’ use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to:
- (i) perform and improve upon the Hyer Platform;
- (ii) facilitate the carrying out of Tasks through the Hyer Platform; and
- (iii) provide you with information and reminders regarding your registration, orientation, upcoming Tasks, product alterations, changes and updates, service outages or alterations.
These calls and texts may include, among other things, reminders about uncompleted or upcoming Tasks and/or in follow up to any push notifications delivered through our mobile application.
Frictionless will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your Account settings on the Site or the App.
SMS / Text specifics:
1 . When you opt-in to the service, we will send you an SMS message to confirm your signup.
2 . You can cancel the SMS service at any time. Just text “STOP” to the short code. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
3 . If at any time you forget what keywords are supported, just text “HELP” to the short code. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
4 . We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). ***Carriers are not liable for delayed or undelivered messages***
5 . As always, message and data rates may apply for any messages sent to you from us and to us from you. You will receive an SMS code for mobile phone verification during sign-up. Message frequency after that will vary based on task exceptions that require your action (0 to 3 messages per task on average). If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided by this short code, you can send an email to email@example.com
21. LINKS TO THIRD-PARTY WEBSITES
The Hyer Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Frictionless or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Hyer Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Frictionless does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Frictionless is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Frictionless has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Hyer Platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Frictionless expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Hyer Platform. You hereby agree to hold Frictionless harmless from any liability that may result from the use of links that may appear on the Hyer Platform.
As part of the functionality of the Hyer Platform, you may link your Account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third-Party Account
”) by either: (i) providing your Third-Party Account login information through the Hyer Platform; or (ii) allowing Frictionless to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Frictionless and/or grant Frictionless access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Frictionless to pay any fees or making Frictionless subject to any usage limitations imposed by such third-party service providers. By granting Frictionless access to any Third-Party Accounts, you understand that (A) Frictionless may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content
22. USER GENERATED CONTENT
The term “User Generated Content
” means any information and materials you provide to Frictionless, or its Affiliates, its corporate partners, or other Users in connection with your registration for and use of the Hyer Platform, including without limitation information posted or transmitted for use in Community Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Frictionless is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that Frictionless has no obligation to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Hyer Platform at its sole discretion.
You hereby represent and warrant to Frictionless that your User Generated Content (i) will comply with all requirements in Section 15; (ii) will not represent you being employed or directly engaged by or affiliated with Frictionless or purport you to act as a representative or agent of Frictionless; and (i) will not create liability for Frictionless or cause Frictionless to lose (in whole or in part) the services of its internet service providers or other partners or suppliers.
The Hyer Platform hosts User Generated Content relating to reviews and ratings of specific Taskers (“Feedback
”). Such Feedback is such Customer’s opinion and not the opinion of Frictionless, has not been verified or approved by Frictionless and each Customer should undertake their own research to be satisfied that a specific Tasker is the right person for a Task. You agree that Frictionless is not responsible or liable for any Feedback or other User Generated Content. Frictionless encourages each Customer to give objective, constructive and honest Feedback about Taskers with whom they have transacted. Frictionless is not obligated to investigate any remarks posted by Customers for accuracy or reliability but may do so at its discretion.
You hereby grant Frictionless a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights you have in your User Generated Content, in any media now known or not currently known in order to perform and improve upon the Hyer Platform.
If you provide to Frictionless any videotape, film, recording, photograph, voice, or all related instrumental, musical, or other sound effects (collectively, “Media
”), in exchange for the right to use the Hyer Platform, you hereby waive any and all moral rights in connection with such Media and irrevocably grant to Frictionless the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- (i) Exhibit, distribute, display, transmit, and broadcast on any and all media, including, without limitation, the internet, any videotape, film, recording or photograph that such User provides to Frictionless or that Frictionless takes of Tasker, and use, reproduce, modify, or creative derivatives of such Tasker picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”);
- (ii) Reproduce in all media any recordings of such Tasker’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Hyer Platform;
- (iii) Use, and permit to be used, such Tasker’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Hyer Platform in any media; and
- (iv) Use, and permit to be used, such Tasker’s name and identity in connection with the Hyer Platform.
You waive all rights and release Frictionless and its Affiliates from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use of your identity, likeness or voice in connection with the Hyer Platform.
You acknowledge that Frictionless shall not owe any financial or other remuneration for using the recordings provided hereunder by such Tasker, either for initial or subsequent transmission or playback, and further acknowledges that Frictionless is not responsible for any expense or liability incurred as a result of such Tasker’s recordings or participation in any recordings, including any loss of such recording data.
23. MONITORING AND ENFORCEMENTS
We have the right to:
- (i) remove or refuse to post any User Generated Content for any or no reason in our sole discretion;
- (iii) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy;
- (iv) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Hyer Platform; or
- (v) terminate or suspend your access to all or part of the Hyer Platform for any or no reason, including without limitation, any violation of this Agreement.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Hyer Platform. YOU WAIVE AND HOLD HARMLESS FRICTIONLESS AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
24. CONFIDENTIAL INFORMATION
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Frictionless and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Frictionless in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Frictionless upon termination of this Agreement for any reason. The term “Confidential Information
” shall mean any and all of Frictionless’ trade secrets, confidential and proprietary information and all other information and data of Frictionless that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
25. INTELLECTUAL PROPERTY RIGHTS
The Hyer Platform is licensed, not sold, to you for use only under this Agreement. Subject to your complete and ongoing compliance with the terms and conditions of this Agreement, Frictionless hereby grants you a personal, limited, revocable, non-transferable, non-exclusive, non-commercial, non-sub-licensable license to: (a) use the App on compatible, authorized devices that you own or control; and (b) access and use the Hyer Platform solely for your own use or for the entity on whose behalf you are authorized to act.
You may not modify, alter, reproduce, or distribute the Hyer Platform. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Hyer Platform. You must not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Hyer Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Task), nor attempt to disable or circumvent any security or other technological measure designed to protect the Hyer Platform or any content available through the Hyer Platform.
The Hyer Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Hyer, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You must not:
- (i) Modify copies of any materials from the Site.
- (ii) Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
- (iii) Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Site.
Except as permitted herein, you must not access or use for any commercial purposes any part of the Hyer Platform or any services or materials available through the Hyer Platform.
26. DISCLAIMER OF WARRANTIES
- Use of the Hyer Platform is Entirely at Your Own Risk
THE HYER PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
FRICTIONLESS MAKES NO WARRANTY THAT (A) THE HYER PLATFORM, TASKS OR ITEMS DELIVERED WILL MEET CUSTOMER’S REQUIREMENTS; (B) THE HYER PLATFORM WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HYER PLATFORM, THE TASKS OR ITEMS DELIVERED WILL BE ACCURATE OR RELIABLE. FRICTIONLESS DOES NOT AND CANNOT GUARANTEE A MATCH BETWEEN EACH CUSTOMER REQUEST AND A TASKER OR THAT THERE ARE TASKERS IN EACH GEOGRAPHIC AREA REQUESTED BY CUSTOMER WHO ARE WILLING TO FULFILL THE TASK AT THE TIME AND PLACE REQUESTED. FRICTIONLESS DOES NOT GUARANTEE OR WARRANT THE TASKERS’ PERFORMANCE OF THE TASKS OR THE OUTCOME OR QUALITY OF THE ITEMS DELIVERED.
FRICTIONLESS MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE HYER PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE HYER PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE, RESULTING FROM YOUR ACCESS TO AND USE OF THE HYER PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
Frictionless does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the Hyer Platform or any hyperlinked website or featured in any banner or other advertising, and Frictionless will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. You should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, Frictionless or its Affiliates do not warrant that access to the Hyer Platform will be uninterrupted or that the Hyer Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Hyer Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Task, service, information or materials provided through or in connection with the use of the Hyer Platform. Frictionless or its Affiliates are not responsible for the conduct, whether online or offline, of any User. Frictionless or its Affiliates do not warrant that the Hyer Platform is free from computer viruses, system failures, worms, Trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites.
Notwithstanding any feature a Customer may use to expedite Hyer selection, each Customer is responsible for determining the Task and selecting their Tasker and Frictionless does not warrant any goods or services purchased by a Customer and does not recommend any particular Tasker. Frictionless does not provide any warranties or guarantees regarding any Tasker’s professional accreditation, registration or license.
In addition, no individual or entity shall be a third party beneficiary of these terms. These terms are solely for the benefit of the parties to this Agreement and are not intended to and shall not be construed to give any person or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other rights (including, without limitation, any third party beneficiary rights), with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
- No Liability
You acknowledge and agree that Frictionless is only willing to provide the Hyer Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Frictionless or its Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorney’s fees and costs (collectively, “Liabilities
”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the Hyer Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by Frictionless or its Affiliates and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL FRICTIONLESS, ITS AFFILIATES, OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY FRICTIONLESS, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE HYER PLATFORM OR THE TASK SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
FRICTIONLESS AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS HYER PLATFORM. FRICTIONLESS AND ITS AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE HYER PLATFORM.
THE QUALITY OF THE COURIER PROVIDING SERVICES THROUGH THE USE OF THE HYER PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE TASKER OR THE THIRD-PARTY COURIER WHO ULTIMATELY PROVIDES DELIVERY SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE HYER PLATFORM, YOUR ITEMS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS OR HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE PLATFORM AT YOUR OWN RISK.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT FRICTIONLESS AND ITS AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO FRICTIONLESS DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
THE HYER PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. BECAUSE FRICTIONLESS IS NOT A PARTY TO OR OTHERWISE INVOLVED IN THE ACTUAL CONTRACT BETWEEN USERS OR IN THE COMPLETION OF THE TASK, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU HEREBY RELEASE FRICTIONLESS AND ITS AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL, OR EXEMPLARY), EXPENSES, LOSSES, GOVERNMENTAL OBLIGATIONS, SUITS AND/OR CONTROVERSIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH READS AS FOLLOWS: “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.”
You hereby agree to indemnify, defend, and hold harmless Frictionless and its Affiliates (the “Indemnified Parties
”) from and against any and all Liabilities incurred in connection with: (i) your use or inability to use the Hyer Platform; (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party; and (iv) any content submitted by you or using your Account to the Hyer Platform, including, but not limited to the extent such content may infringe on the intellectual property rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on our infrastructure. Frictionless reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Frictionless.
28. Dispute Resolution
Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first inform Frictionless (firstname.lastname@example.org
) of your complaint and seek resolution. This notice of dispute must include: your name, relevant account information, a brief description of your dispute, and contact information, so that Frictionless may evaluate the dispute and attempt to informally resolve same. Frictionless will have sixty (60) days from the date of your original complaint to informally resolve the dispute, which if successful will avoid the need for further action.
- Arbitration Procedures
In the unlikely event that you and Frictionless end up in a legal dispute and have not been able to resolve it within sixty (60) days of your original informal claim, you and Frictionless agree to the following:
- (i) All Claims (excluding claims for injunctive or other equitable relief) must be resolved through binding arbitration before an AAA arbitrator located in New York under the commercial dispute resolution rules then in effect for AAA, except as provided herein. Any disputes as to the applicable rules and procedures shall be resolved by the AAA arbitrator.
- (ii) The party wishing to initiate arbitration must submit a written demand for arbitration. If you initiate a Claim, you will submit the demand by certified mail to Frictionless at 18530 Mack Avenue, Suite # 353, Grosse Pointe Farms, MI 48236 Attention: Legal. If Frictionless initiates a claim, Frictionless will serve a demand for arbitration upon you by email to the email address on file with Frictionless, and may send a copy by certified mail to your last known address (or to another address specified by you in your notice of dispute of your informal claim). You agree to service of process in that manner. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought.
Except as otherwise provided in the severability provisions in Section 26(c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
- Right to Opt Out of Arbitration Agreement
, Attention: Legal, that includes (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.
29. GENERAL PROVISIONS
- Waiver; Entire Agreement; Severability; Assignment
Failure by Frictionless to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement, together with the other documents referenced herein, constitutes the complete and exclusive agreement between you and Frictionless with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the second paragraph of Section 28(a), in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 29(a) shall be null and void. This Agreement will inure to the benefit of Frictionless, its successors and assigns.
- Changes to This Agreement and the Hyer Platform
- No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
- Notices and Consent to Receive Notices Electronically
Frictionless may give any notice required by this Agreement by means of a general notice on the Site, the App, electronic mail to your email address on record with Frictionless, or by written communication sent by first class mail or pre-paid post to your address on record with Frictionless. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or upon sending (if sent by email). You may give notice to Frictionless by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the following address: Frictionless Enterprises, Inc., 18530 Mack Avenue, Suite # 353, Grosse Pointe Farms, MI 48236
or email to email@example.com.