ServiceChannel Mobile Application Terms of Service
Last modified: February 14, 2017
Acceptance of Terms of Service
- By registering for and/or using the Services in any manner, including but not limited to downloading or browsing the Application, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Services by ServiceChannel, each of which is incorporated by reference, and each of which may be updated from time to time without notice to you.
- Certain of the Services may be subject to additional terms and conditions specified by ServiceChannel from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “DISPUTE RESOLUTION” SECTION BELOW THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS OF SERVICE AND WITH RESPECT TO ANY “DISPUTE” (DEFINED BELOW) BETWEEN YOU AND US. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN THE “DISPUTE RESOLUTION” SECTION BELOW. ADDITIONALLY, THESE TERMS OF SERVICE INCLUDE YOUR CONSENT TO RELEASE SERVICECHANNEL FROM LIABILITY BASED ON CERTAIN CLAIMS AS FURTHER DESCRIBED IN THE “INDEMNIFICATION; RELEASE” SECTION BELOW.
1. Eligibility. You represent and warrant that you are at least 18 years of age. If you are under age 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
2. Registration. To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information, including valid financial account information, and keep your Account information updated. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
3. The Services. The Application and Services enable Servicechannel’s customers (“Customers”) to collaborate with contractors (individually, “Contractor”) and Contractors to collaborate with its technicians (“Technicians”). Neither Customers nor Contractors nor their Technicians are ServiceChannel agents or personnel. All transactions and Customer requirements are solely between Contractors and Customers, and ServiceChannel is only responsible for providing and maintaining the Services. ServiceChannel does not assess and makes no representations regarding any information, requirements or data supplied by Customer, whether made available to you through the Services or otherwise, the conditions or state of any Customer premises, equipment or other property (including without limitation the safety or any description thereof) or any acts or omissions of a Customer (or its agents, personnel or invitees), who are wholly responsible to you with respect thereto. ServiceChannel does not warrant or confirm Contractor information, certifications, data, products or services, whether or not they are designated by ServiceChannel as “certified” or otherwise. In no event shall ServiceChannel be responsible or liable for any claim, injury, loss or damage of any sort arising in connection with your use of the Services, including any incurred as the result of any transactions between Customers, Contractors and/or Technicians based on information you may receive as a result of access to or use of the Services or information made available through the Services.
4. ServiceChannel Fees. You agree to pay applicable fees in connection with your use of the Services, as posted by ServiceChannel at www.servicechannel.info (including, without limitation at www.servicechannel.info/terms-and-conditions/), as may be updated from time to time or as agreed upon by you and ServiceChannel in a separate agreement (such fees, “ServiceChannel Fees”). If you are Customer, you acknowledge that ServiceChannel may charge a Contractor for fees to use the Services that is separate from the ServiceChannel Fees charged to you. Similarly, if you are a Contractor, you acknowledge that ServiceChannel may charge a Customer fees to use the Services that is separate from the ServiceChannel Fees charged to you. Any modification of or addition to the existing Services may be subject to additional charges, which shall be posted through the Services. If any amount due from you to ServiceChannel under this Agreement is not paid within thirty (30) days after the applicable due date, in addition to any other remedies available to ServiceChannel, ServiceChannel may suspend your access to the Services, in whole or in part, until ServiceChannel receives payment of the overdue amount. All amounts payable to ServiceChannel under this Agreement shall be paid in full without set-off, deduction or other withholding of any amount that may be due to you. All of your payment obligations hereunder are non-cancelable, and fees paid by you hereunder are non-refundable. ServiceChannel’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your payments and/or sales of products or services hereunder.
ServiceChannel may, in its sole discretion, agree to allow you to pay certain fees by debit or credit card. If you will pay by debit or credit card, you agree to provide ServiceChannel with an authorized credit card name, number and date of expiration and proper debit authorization for purposes of allowing ServiceChannel to charge the applicable account to collect fees due under this Agreement. By authorizing ServiceChannel to charge a credit or debit card, you are authorizing ServiceChannel or its designated representatives or agents to automatically continue charging that card (or any replacement credit card account if the original card is renewed, lost, stolen or changed for any reason by the credit-issuing entity, and such entity informs ServiceChannel of such new replacement card account) until this Agreement is terminated and all fees are paid in full. If your debit or credit card fails to validly pay the fees due to ServiceChannel, ServiceChannel may, in its sole discretion without limiting ServiceChannel’s other rights or remedies, (i) accelerate your unpaid fee obligations through the remaining applicable payment term(s) of any applicable Services provided hereunder (or as mutually agreed upon through the Services) so that all such obligations become immediately due and payable and (ii) terminate or suspend your access to the Services, in whole or in part.
You must provide and keep up to date current, complete, and accurate payment account and, if applicable, debit and credit card information (including in the event of a change in billing address, account or card number or financial institution), and you must promptly notify us if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your account user name or password.
5. Compliance with Laws. You will be responsible for the compliance of your employees, agents and subcontractors with this Agreement and their use of the Services and Application in accordance herewith. You are solely responsible for any of your obligations under applicable laws, rules or regulations, including under the Fair Credit Reporting Act (“FCRA”), all other employment and labor laws (including relating to non-discrimination in employment, wage and hour laws and any required authorizations and notifications, whether with respect to Technicians or otherwise) and any laws relating to provision of applicable notices, record keeping, reporting (including tax reporting) or disclosure to any governmental entity or agency or any other third party, including with respect to your Technicians and other employees, subcontractors or suppliers (including without limitation, the issuance of federal 1099 forms).
You agree to abide by any additional conditions that may apply to your access to and use of the Services and any third-party products or services that you may access through the Services, including with respect to background checks (“Background Checks”), to provide all required certifications electronically, maintain complete and accurate files containing all required consent, authorization and disclosure forms with regard to each Technician or other consumer for whom a Background Check has been requested, and to maintain strict security procedures and controls to assure that your personnel are not able to use your Internet or other network access to obtain or use Background Checks for improper, illegal or unauthorized purposes. You hereby certify that all of your orders for Background Checks using the Services, and your obligations related thereto and exploitation thereof, are solely your responsibility (and not any responsibility of ServiceChannel) and shall be made, and the resulting Background Checks shall be used, solely in accordance with applicable law, including but not limited to the FCRA, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Drivers Privacy Protection Act, 18 U.S.C. § 2721 et seq., Investigative Consumer Reporting Agencies Act, California Civil Code § 1786 et seq., and Consumer Credit Reporting Agencies Act, California Civil Code § 1785.1 et seq.
Without limiting the foregoing, if applicable, ServiceChannel’s service providers will provide a clear and conspicuous disclosure to you, in a document consisting solely of the disclosure, that you are obtaining a “consumer report” for “employment purposes” (each, as defined in the FCRA) or other legally permissible purposes, and you represent and warrant that you will obtain all consents and authorizations required to obtain any such report for such purposes in any forms of which may be provided by third-party services providers providing Background Checks that you may access through the Services. You acknowledge and understand that, prior to taking any adverse action based in whole or in part on any such consumer report, you must provide the applicable individual who is the subject of such report with a copy of that report and a description in writing of such individual’s rights under the FCRA in the form published by the Federal Trade Commission. ServiceChannel will request that its service provider make that form available to you if you request a copy by contacting us at email@example.com. In the event that you use such third-party Background Services, you represent and warrant that you have obtained permission from the applicable individual who is subject to such Background Check in order to verify such individual’s employment status for “employment purposes” (defined above). You also represent and warrant that you are a legitimate business that will make only legitimate use of any third-party Background Check services.
You shall not provide copies of, or otherwise make available, any Background Checks to ServiceChannel in any form at any time.
Breaches of this Agreement and/or violations of applicable law discovered by ServiceChannel may result in immediate suspension and/or termination of the account, legal action or referral to federal or state governmental authorities.
6. Content. For purposes of this Agreement, the term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, maps, graphics and interactive features generated, provided or otherwise made accessible on or through the Services, including all Customer Content and Contractor Content (defined below). Content added, created, uploaded, submitted, distributed or posted to the Services by users (collectively, “User Content”) is the sole responsibility of the person or entity who originated such User Content, including any User Content provided by or for you (“Your Content”), including related to any Background Check, or by or for another user. You represent, warrant and covenant that (A) all Your Content submitted by you will be legal, true, accurate, complete and current, (B) you have sufficient rights to provide and use Your Content, (C) Your Content and your provision thereof do not violate this Agreement, any applicable law, including the FCRA, any contractual obligations of, or any third-party rights and (D) you are responsible for and assumes all risks in connection with Your Content and the provision thereof, including any personal information contained therein. You agree that ServiceChannel is not liable for any User Content.
7. License to Your Content. You hereby grant to ServiceChannel a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, transferable, sublicensable, worldwide license to use, reproduce, distribute, print, display, modify, reformat, translate, transmit and otherwise act with respect to any Your Content (and any intellectual or proprietary rights therein) for the purpose of operating the Services and ServiceChannel’s internal business purposes.
8. Application Ownership. All right, title and interest (including all intellectual property rights) in, to or connected with the Application, the Services or any related software, documentation or information, in whole or in part, shall remain the exclusive property and confidential information of ServiceChannel or its third-party licensors. ServiceChannel will retain all right, title and interest (including all intellectual property rights) in, to and relating to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or for you, any of your Technicians or any third party relating to the Application, the Services or any related software, which you hereby irrevocably assign to ServiceChannel.
9. License to Services. Subject to the terms and conditions of this Agreement and any applicable documentation or policies posted on the Services, ServiceChannel hereby grants you a nonexclusive, nontransferable, non-sublicensable, revocable, limited license to access and utilize the Application, Services and ServiceChannel Content (solely in connection with your use of the Applications and Services) solely for your internal use. All rights not expressly granted to you hereunder shall remain at all times with ServiceChannel or its third-party licensors. “ServiceChannel Content” means materials developed or provided by or for ServiceChannel under this Agreement, or used on, to or in connection with, or to create or operate, the Application or Services or any part thereof, including but not limited to any computer software (in object code and source code form), data or information (including data and information about potential or existing customers), know-how, methodologies, equipment or processes and all copyrights, trademarks, patents and trade secrets and any other intellectual property or proprietary rights therein.
10. Termination. Either party may terminate this Agreement for any reason or no reason whatsoever immediately upon written notice. ServiceChannel may, in whole or in part, immediately terminate this Agreement and suspend your access to the Services, Application or the processing of any pending or future transactions between you and any Customers or any payments pursuant to this Agreement in the event that (i) you breach your obligations under this Agreement, (ii) ServiceChannel reasonably believes that you have suspended or will suspend your business activities, become insolvent or subject to bankruptcy, insolvency or any other proceeding relating to your insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) your use of the Services violates (or is likely to violate) any applicable law, rule, regulation or contractual obligation of yours (including under any agreement with a Customer, Contractor or Technician, as applicable).
If you wish to terminate your Account, you may do so by following the instructions available on the Application or through the Services. Any fees paid to ServiceChannel hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including without limitation provisions regarding the following: ownership, license to use Content, ServiceChannel Fees, warranty disclaimers, indemnity, releases, limitations of liability and dispute resolution.
11. Warranty Disclaimer. You are solely responsible for your interactions and arrangements with other individuals, including Contractors, Customers and Technicians. We make no representations or warranties as to (A) the performance, conduct or omissions of Contractors, Technicans or Customers (or their agents, personnel or invitees) or (B) any information or data supplied by Contractors, Technicians or Customers or any other third party, including with respect to Background Checks, whether made available to you or your agents (including Technicians) through the Services or otherwise, including regarding the conditions or state of any Contractor, Technician or Customer premises, equipment or other property (including without limitation the safety or any description thereof).
THE SERVICES, THE APPLICATION, SERVICECHANNEL CONTENT AND ALL SOFTWARE, INFORMATION, CONTENT AND MATERIALS INCLUDED IN OR RELATED TO THE FOREGOING, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SERVICECHANNEL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (INCLUDING WITH RESPECT TO ANY ACTS OR OMISSIONS OF CUSTOMERS, OF CONTRACTORS OR THEIR TECHNICIANS OR THEIR PROVISION OF ANY SERVICES, MATERIALS OR INFORMATION), EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OR COMPLETENESS OF DATA, QUALITY OF SERVICE, TIMELINESS, RELIABILITY, AVAILABILITY AND SUITABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICECHANNEL DOES NOT WARRANT THAT THE APPLICATION, SERVICES OR ANY CONTENT WILL BE UNINTERRUPTED, ERROR- OR VIRUS-FREE. SERVICECHANNEL EXPRESSLY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY INTERNET SERVICE OR HOSTING PROVIDERS.
12. No Liability. SERVICECHANNEL (TOGETHER WITH ITS AGENTS, OFFICERS, AFFILIATES, CONTRACTORS AND EMPLOYEES) SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FROM HARM TO BUSINESS, LOST REVENUES, LOST SALES, LOST SAVINGS, LOST PROFITS (ANTICIPATED OR ACTUAL), LOSS OF USE, DOWNTIME, INJURY TO (WHETHER BODILY OR EMOTIONAL DISTRESS) OR DEATH OF PERSONS, DAMAGES TO PROPERTY OR THIRD-PARTY CLAIMS) (A) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OR INABILITY TO USE THE SERVICES, (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (C) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY CUSTOMER, CONTRACTOR OR TECHNICIAN, EVEN IF SERVICECHANNEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SERVICECHANNEL’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE GREATER Of (I) AMOUNTS EQUAL TO THE TOTAL SERVICECHANNEL FEES PAID OR PAYABLE BY YOU FOR THE PARTICULAR SERVICES AT ISSUE OR (II) $500.00.
13. Third Party Services. Users of the Services may be provided links and other connections to other websites, services or resources through the Services. When you access any third party service through the Services (such as access to a Background Check service), you do so at your own risk. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external services or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such services or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such site, service or resource, including without limitation any acts or omissions in connection with any Background Checks. As such, we disclaim: (a) all responsibility and liability for third party services accessed through the Services and your resultant exploitation thereof; and (b) any representations or warranties as to (i) the security of any information (including, without limitation, credit card and other personal information, whether about you as a Customer, Contractor or as a Technician) you might be requested to give any third party, including in connection with any Background Check, and (ii) the functionality of third party services accessed through the Services, whether by you or any other user of the Services. You hereby irrevocably waive any claim against ServiceChannel with respect to such third party sites, content, services, applications or widgets, including without limitation in connection with any Background Checks or information that you may provide to us, Customers, Technicians or other third parties related thereto. You acknowledge and agree that in addition to this Agreement, any use of third party services accessed through the Services is subject to, and you shall comply with, the terms and conditions applicable to such third party services. The inclusion of any link to any third party website or service on the Services does not imply endorsement by ServiceChannel or any association with its operators. You hereby agree to indemnify and hold ServiceChannel and our officers, directors, affiliates, employee, agents and investors (collectively, the “ServiceChannel Parties”) and any other person, firm, or entity harmless from any damages, claims, actions, liabilities, losses and expenses (including, without limitation, reasonable attorneys’ fees) of every kind or nature, suspected and unsuspected, known and unknown, and disclosed or undisclosed (collectively, “Claims”), arising out of or in connection with (i) your access to or use of any third-party services or resources (including any Background Check service), whether accessed through the Services or otherwise, (ii) the results of any information (including Background Checks) obtained through the Services, (iii) any decisions made by you based on such information (including the results of any Background Checks) or (iv) any confirmations or certifications made by Contractors to Customers in respect of Technicians or in the completion of Contractors’ or their Technicians’ provision of services or materials.
14. Indemnification; Release
- Indemnification. You hereby agree to indemnify and hold the ServiceChannel Parties and any other person, firm, or entity harmless from any Claims arising out or in connection with: (i) your access to or use of the Services; (ii) Content submitted by you to the Services and any information or materials that you otherwise make available to Contractors, Technicians or Customers (including related to any Background Checks or other information regarding specific Technicians); (iii) your agreements with Contractors, Technicians or Customers; (iv) your breach or violation of any of these Terms of Service or applicable law, rules or regulations, including the FCRA; or (v) your violation of any intellectual property or other rights of any third party, including Customers, Contractors and Technicians.
- Release. ServiceChannel is not involved in the actual agreement between such Customers and Contractors, the requirements of a Customer for dispatch of a Technician, the results of any Background Checks obtained through the Services or any decisions made by Contractors based on the results of any Background Checks, any confirmations or certifications made by Contractors to Customers in respect of Technicians or in the completion of Contractors’ or their Technicians’ provision of services or materials, services or materials provided by a Contractor in accordance with a work order submitted by a Customer, payments owed to Contractors for services or materials provided by Contractors or their Technicians. As such, you hereby release the ServiceChannel Parties from any and all Claims arising out of or in any way connected with the foregoing. The foregoing release is made by you notwithstanding the provisions of California Civil Code § 1542 (or any other statute or common law principle with a similar effect as to the subject matter of these Terms of Service), which provides: “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 expressly waive any and all rights that you may have under the provisions of California Civil Code § 1542, or any similar provision of the statutory or non-statutory law of any other jurisdictions, to the full extent that you may lawfully waive all such rights and benefits pertaining to the subject matter of these Terms of Service. In furtherance of this intention, the release herein given shall be and remain in effect as a full and complete general release notwithstanding the discovery or existence of any such additional or different claims or facts.
15. Dispute Resolution.
- Binding Arbitration. You agree that any dispute, claim, or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and ServiceChannel, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive relief or other equitable relief in a court of competent jurisdiction to prevent the actual, alleged or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and ServiceChannel are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Unless both you and ServiceChannel otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms of Service.
- Arbitration and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution” section.
- Arbitration Process. A party that elects to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175). If you and ServiceChannel are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
- Arbitration Location and Procedure. Unless you and ServiceChannel otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and ServiceChannel submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by you and ServiceChannel, consistent with the expedited nature of the arbitration.
- Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of Sections 13, 14 and 16 as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. ServiceChannel will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if ServiceChannel prevails in arbitration.
- Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, ServiceChannel will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
- Updates to Dispute Resolution Section. Notwithstanding the provisions of the modification-related provisions above, if ServiceChannel changes this “Dispute Resolution” section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by providing ServiceChannel written notice of such rejection by mail or hand delivery to: ServiceChannel.com, Inc. Attn: Dispute Resolutions, 18 East 16th Street, 2nd Floor, New York, NY 10003, or by email from the email address associated with your Account to: firstname.lastname@example.org, within thirty (30) days of the date such change became effective, as indicated by the “Effective Date of Terms of Service” below. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and ServiceChannel in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
16. Rules of Conduct.
- As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services, including all activity initiated through your Account and any activities of your Technicians and other employees, agents or subcontractors.
- You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
- You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
- We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent or otherwise address fraud, security or technical issues, (iv) respond to user support requests or (v) protect the rights, property or safety of us, our users and the public.
17. Acceptable Use Policy. You shall not (and shall not permit any third party to) either (i) take any action or (ii) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any of your Content, that: (A) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty; (B) you know is false, misleading, untruthful or inaccurate; (C) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion; (D) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (E) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party; (F) impersonates any person or entity, including any of our employees or representatives; or (G) includes anyone’s identification documents or sensitive financial information.
18. The Application; Mobile Devices.
- The Services may allow you to access our services, download our Application, upload content to the Services and receive information on your mobile device (collectively, “Mobile Features”). Your mobile device carrier may prohibit or restrict certain Mobile Features, and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data and other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
- You acknowledge that your use of the Application is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the Application operates.
19. Apple Device and Application Terms. If you are accessing the Services via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store, the following shall apply:
- Both you and ServiceChannel acknowledge that these Terms of Service are concluded between you and ServiceChannel only, and not with Apple, and that Apple is not responsible for, does not endorse, and is not involved in the application;
- The application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Service as they are applicable to the Services;
- You will only use the application in connection with an Apple device that you own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the application;
- In the event of any failure of the application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the application;
- You acknowledge and agree that ServiceChannel, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the application;
- You acknowledge and agree that, in the event of any third party claim that the application or your possession and use of the application infringes that third party’s intellectual property rights, ServiceChannel, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and ServiceChannel acknowledge and agree that, in your use of the application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and ServiceChannel acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof.
- Publicity. You hereby grant to ServiceChannel a temporary, limited, nonexclusive, non-transferable, worldwide license, without the right to sublicense, to use, during the term of this Agreement, your trademarks, service marks and logos (collectively referred to as “Marks”) on ServiceChannel’s websites and in mutually agreed-upon collateral sales materials solely in furtherance of and subject to this Agreement or as otherwise mutually agreed upon in writing or through the Services. ServiceChannel will only use and display your Marks and copyrighted information in accordance with the applicable guidelines provided by you. ServiceChannel will ensure that proper trademark and copyright notices are displayed at all times in association with the Marks and copyrighted materials, including any such use or display on ServiceChannel’s website.
- Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
- Governing Law. This Agreement shall be governed solely in accordance with the laws of the state of New York, including its conflict of law rules, and the United States of America.
- Modification. ServiceChannel reserves the right, in its sole discretion, to modify or replace any of these Terms of Service, or change, suspend or discontinue the Services (including without limitation, the availability of any feature, database or content) at any time by posting a notice on the Application or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. ServiceChannel may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While ServiceChannel will use reasonable efforts to provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes.
- General. This Agreement is the entire agreement between you and ServiceChannel with respect to the Services, including use of the Application or any ServiceChannel Content, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and ServiceChannel with respect to the Services. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. This Agreement is not assignable, transferable or sublicensable by you except with ServiceChannel’s prior written consent. ServiceChannel may assign, transfer or delegate any of its rights or obligations hereunder, in whole or in part, without consent. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, ServiceChannel or any Customer as a result of this Agreement or use of the Services. ServiceChannel’s failure to enforce any part of these Terms of Service shall not constitute a waiver of its right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that ServiceChannel will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, ServiceChannel must provide you with written notice of such waiver through one of ServiceChannel’s authorized representatives. The Parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, no agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither you nor ServiceChannel has any authority of any kind to bind the other in any respect.