Last Updated Date: 10/15/2018
PLEASE BE AWARE THAT SECTION 13 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
1. Overview. PrestoIntelligence has developed a technology platform and system connecting home service providers, such as home inspectors and appraisers, (collectively, “Providers”) with homebuyers and other individuals that have requested their services (“Customers”) and automating the home inspection and appraisal scheduling and management process. PrestoIntelligence does not provide home inspection or appraisal services, is not a home inspector or appraiser, does not employ any such professionals, is not licensed or otherwise qualified to be a home inspector or appraiser, and does not hold itself out as a provider of such professional services, as such services are exclusively rendered by Providers. As part of the Services, PrestoIntelligence may provide Providers with the opportunity to book jobs (“Jobs”) for Customers that relate to the Provider’s skill set (as identified by the Provider on the Services), such as home inspections or home appraisals. These Job requests from customers may be submitted directly by Customers or indirectly through other third parties to PrestoIntelligence, via text message or other means. PrestoIntelligence uses its technology to match Providers with Jobs that are available for booking, but we do not guarantee to provide to you any specific number of Job requests. Additionally, PrestoIntelligence does not make any guarantees, representations or warranties regarding the accuracy of the information provided by the Customers or that you will successfully contact each Customer. PrestoIntelligence does not have any responsibility for your contracts with Customers. PrestoIntelligence is free to contract with other Providers and this is not an exclusive contract.
1.1 Qualifications. By using the Services as a Provider, you represent and warrant, on behalf of yourself, your company (including any predecessor entities of your company), employees, subcontractors, and any individuals performing work on your behalf, at the time you create an account on the Services and thereafter, that:
(a) You are qualified and capable of performing the professional services (such as home inspections or home appraisals) that you identify in your account on the Services.
(b) You are qualified and capable of performing the Jobs booked through the Services (“Professional Services”).
(c) You are properly and fully licensed, bonded and insured (at levels in accordance with applicable industry standards) under all applicable laws and trade regulations, including minimum errors and omissions coverage and general liability coverage as required by applicable law, and will maintain such coverage as long as you provide Professional Services. You agree that you will provide documentation to support the foregoing upon PrestoIntelligence’s reasonable request and will notify PrestoIntelligence promptly of any changes to your licensing, bonding, or insured status. If you are operating under a license with special restrictions, you will at all times operate within the guidelines as specified by such restrictions.
(d) You have not been sanctioned or penalized by any governmental authorities or professional industry associations in connection with your provision of services to any of your customers.
(e) You have not been denied membership to (or had your membership revoked from) any professional industry associations.
(f) You are free from any (i) bankruptcies, civil legal judgments within the last three (3) years, and (ii) felony criminal convictions.
(g) You will refrain from any unethical conduct, will maintain high standards of professionalism, and will comply with all laws, regulations, and ordinances applicable to your performance of the Professional Services.
1.2 Other Responsibilities. If required by PrestoIntelligence, you agree to submit to a background screening conducted by PrestoIntelligence for the sole purpose of confirming your credentials and/or references. You assume complete responsibility for all services to and treatment of other Users and any other parties with whom you contact as a result of the Services, including Customers and potential Customers. You represent that you are free to enter into the Terms and perform hereunder, are not restricted (contractually or otherwise) from entering into and performing these Terms, and are not subject to any suit, action, claim, arbitration or legal, administrative or other proceeding, or government or professional investigation, pending or threatened or affecting your ability to perform services hereunder. You will immediately inform PrestoIntelligence of any such action.
1.3 Accepting Jobs. PrestoIntelligence may provide leads for Jobs from time to time via the Services. If you accept a Job, you agree to contact the Customer and complete the Professional Services (i) within twenty-four (24) hours of acceptance and (ii) at the pre-assigned fee displayed to you by PrestoIntelligence prior to accepting the Job (“Provider Fee”). You acknowledge that PrestoIntelligence will collect and remit the Provider Fee to you as set forth in Section 1.7. You will not charge or attempt to charge Customer any additional fees for the Job, or refuse to complete a Job in an attempt to obtain a more favorable price. PrestoIntelligence is not obligated to provide, and you are not obligated to accept, any Jobs. You accept Jobs posted on the Service at your own discretion. PrestoIntelligence does not guarantee to provide you with any specific number of Jobs, that Customers will hire you to perform Professional Services, or that you will be able to successfully contact the Customer.
1.4 Control. You are solely responsible for all of your own tools, equipment, training, automobiles, office space, licensing, and other materials or requirements needed, desired or related to the Professional Services. As an independent business and User of the Services, you maintain complete control over your use of the Services, including:
(a) You decide when to log into the Services and be available for Jobs through the Services;
(b) You decide whether to accept, reject, or ignore offers of Jobs if logged in;
(c) You are permitted to select your attire for the Professional Services – no uniforms or other specific clothes are required;
(d) You confer with the Customer to determine the time and location of the Professional Services – PrestoIntelligence is not involved;
(e) You are permitted to maintain your independent business and other clients without using the Services;
(f) You are not restricted from using competitive services or technology platforms;
(g) You retain the right to hire employees or subcontractors in performing Professional Services, and acknowledge that these employees or subcontractors will possess the credentials, training, experience, skill and ability to provide Professional Services (including that such employees or subcontractors will be fully licensed or training with temporary trainee or apprentice license under a licensed supervisor);
(h) Your opportunity for profit or loss is dependent on your own managerial skill;
(i) You are responsible for resolving any disputes with Customers, including financial responsibilities for refunds, breakage, spoilage, and other losses directly or indirectly caused by you or your agents;
(j) You solely control the amount of your investment in the Professional Services, including expenses on training and tools; and
(k) You exclusively control your performance of the Professional Services, including, but not limited to, possessing the requisite skills, credentials and training to perform Professional Services that you accept hereunder.
1.5 Job Information. You will not collect, share, distribute, or sell any information regarding Jobs to any third party. You acknowledge and agree that such information, which may include home location, Customer contact information, and other personal information, is highly confidential and sensitive. You agree to not use any Job information or information about Customers except as necessary to perform the Services and will delete or destroy such information within a reasonable amount of time after performing the Professional Services. You further acknowledge and agree that you will not contact Customers in a manner not accordance with applicable laws and regulations, including but not limited to “Do Not Call” regulations and anti-spam regulations. You grant us the right to disclose any information we have regarding you and your company to any authorities requesting information from us regarding any Jobs, Professional Services or other work or services, you have performed.
1.6 Provider Conduct. While using or accessing the Services, contacting Customers and performing Jobs, you further agree that you will not, under any circumstances:
(a) Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
(b) Interfere with or damage Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Post false, inaccurate, misleading, defamatory or libelous content;
(d) Transfer your Account and username to another party without our consent;
(e) Bypass our robot exclusion headers, interfere with the working of the Services, or impose an unreasonable or disproportionately large load on our infrastructure;
(f) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(g) Use the Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(h) Make available any User Content, or use the Service in any way or engage in any activity, that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities; or (vi) involves sexual misconduct; or
(i) Use any information made available via the Services to harass, intimidate, stalk any person, or make unwanted contact with a Customer after a Job is complete.
1.7 Payment of Provider Fees.
(a) Generally. Subject to the Terms, PrestoIntelligence will pay you the Provider Fee for each Job you complete; provided that you complete the Job within twenty-four (24) hours after selecting it on the Services. PrestoIntelligence reserves the right to adjust or withhold all or a portion of the Provider Fee: (i) if PrestoIntelligence believes you have attempted to defraud or abuse Customers, PrestoIntelligence, or PrestoIntelligence’s payment systems; or (ii) in order to resolve a Customer complaint.
(b) Cancellation Policy. In the event that a Customer cancels a job, we will use reasonable efforts to notify you of such cancellation through the Services. No fees are due to you for any job that is cancelled by a Customer before it is completed, except as may be provided by our cancellation policy at [insert website link], which may be updated from time to time at our sole discretion.
(c) Taxes. You are solely responsible for filing all tax returns and submitting all payments as required by any federal, state, local, or foreign tax authority arising from the payment of fees to you under these Terms, and you agree to do so in a timely manner.
(d) Payment Processing. PrestoIntelligence uses third party service providers (each a “Third Party Service Provider”) for payment services. By using the Services, you consent and authorize PrestoIntelligence and its Third-Party Service Providers to share any information and payment instructions you provide with Third Party Service Providers to the minimum extent required to complete your transactions. You represent and warrant that all such information you provide is accurate and up to date.
1.8 Customer Conduct; Disputes. PrestoIntelligence provides the Services as a platform that connects Buyers and Customers. We do not have control over Customers, the truth or accuracy of information provided by Customers, the safety or condition of Customers’ property, or the integrity, responsibility, or any actions of Customers. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services, including Customers and potential Customers; provided, however, that PrestoIntelligence reserves the right, but has no obligation, to intercede in such disputes. You agree that PrestoIntelligence will not be responsible for any liability incurred as the result of such interactions. When interacting with other Users and any other parties with whom you interact through the Services, including Customers and potential Customers, you should exercise caution and common sense to protect your personal safety and property. Although we are under no obligation to do so, if we attempt to facilitate the resolution of any Customer complaints between you and your Customers, you will cooperate with us. However, we will not be liable to you or any Customer if such matters cannot be resolved. We reserve the right to charge you for any amounts paid to a Customer by us in connection with a dispute between you and such Customer, or based upon your performance of or failure to perform Professional Services for a Customer, and you agree to reimburse us for any such payments and for any costs, expenses or attorney’s fees we incur in connection with any such dispute.
2. Access to the Services.
2.1 Limited License. Subject to your compliance with the Terms, PrestoIntelligence grants you: (a) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install one copy of the Application downloaded from a legitimate marketplace, and to use such Application so installed solely in object code format and solely for your personal use for lawful purposes, on mobile devices that you own or control, and (b) permission to access and use our Services and related information and documentation, solely for your personal use or internal business purposes. Unless otherwise specified by PrestoIntelligence in a separate license, your right to use any Service is subject to the Terms. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
2.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from which you received the Application license, e.g., the Apple or Android app stores (“App Store”). You acknowledge that the Terms are between you and PrestoIntelligence and not with the App Store. PrestoIntelligence, not the App Store, is solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
2.3 Accessing and Download the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Terms are concluded between you and PrestoIntelligence only, and not Apple, and (ii) PrestoIntelligence, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between PrestoIntelligence and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of PrestoIntelligence.
(d) You and PrestoIntelligence acknowledge that, as between PrestoIntelligence and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and PrestoIntelligence acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between PrestoIntelligence and Apple, PrestoIntelligence, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and PrestoIntelligence acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
2.4 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms. All copyright and other proprietary notices on the Services (or on any content displayed on the Service) must be retained on all copies thereof.
2.5 Ownership. Excluding any User Content that you may provide (defined in Section 5.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by PrestoIntelligence or PrestoIntelligence’s suppliers. Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited license and access rights expressly set forth in Section 2.1. PrestoIntelligence and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. For clarity, any statistics and information regarding your use of the Services is separate from, and will not include or be deemed, User Content.
3.1 Registering Your Account. To use the Services, you must become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Services (“Account”).
3.2 Registration Data. In registering an account on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction; and (d) if you are registering an account on behalf of an organization or entity, you are authorized to represent and bind such organization or entity. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to (y) notify PrestoIntelligence immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or PrestoIntelligence has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, PrestoIntelligence has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. PrestoIntelligence reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by PrestoIntelligence, or if you have been previously banned from any of the Services.
· What information we may collect about you;
· What we use that information for; and
· With whom we share that information.
By using the Services, you acknowledge and agree that PrestoIntelligence may contact you about potential Jobs, even if you are listed on any “Do Not Call” list and even if you have opted-out of receiving marketing communications from PrestoIntelligence.
5. User Content.
5.1 User Content. “User Content” means any and all information and content that a User submits to, or uses in connection with, the Services. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by PrestoIntelligence. PrestoIntelligence is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
5.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to PrestoIntelligence an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, and otherwise use your User Content, and to grant sublicenses of the foregoing rights, for the purposes of operating and providing the Services to you and to our other users. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
5.3 Content Provided by Other Users. The Services may contain User Content provided by other Users. PrestoIntelligence is not responsible for and does not control User Content. PrestoIntelligence has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk
5.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to PrestoIntelligence through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that PrestoIntelligence has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to PrestoIntelligence a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
5.5 Investigations. PrestoIntelligence may, but is not obligated to, monitor or review the Services and User Content at any time. Without limiting the foregoing, PrestoIntelligence shall have the right, in its sole discretion, to remove any of your User Content for any reason (or no reason), including if such content violates the Terms or any applicable law. Although PrestoIntelligence does not generally monitor user activity occurring in connection with the Services or User Content, if PrestoIntelligence becomes aware of any possible violations by you of any provision of the Terms, PrestoIntelligence reserves the right to investigate such violations, and PrestoIntelligence may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove your User Content, in whole or in part, without prior notice to you.
6. Third-Party Services. The Services may contain links and integrations to third-party websites, applications, services and application programming interfaces (collectively, “Third-Party Services”), and are subject to the terms and conditions (including privacy policies) of each such Third-Party Service. Such Third-Party Services are not under the control of PrestoIntelligence, and PrestoIntelligence is not responsible for any Third-Party Services. PrestoIntelligence provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or their products or services. Your use of the Third Party Services is at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7. Indemnification. You agree to indemnify and hold PrestoIntelligence, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “PrestoIntelligence Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your provision of Professional Services or dealings with Customers (including any extra work you perform for a Customer outside of an assigned Job); (b) your violation of the Terms; (c) your violation of any rights of another party, including the rights of any Customers; (d) your violation of any applicable laws, rules or regulations; (e) any liability for the payment or non-payment of federal, state, or local taxes, or other withholdings, involving you; or (f) your User Content. PrestoIntelligence reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with PrestoIntelligence in asserting any available defenses. This provision does not require you to indemnify any of the PrestoIntelligence Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Services.
8. Disclaimer of Warranties and Conditions.
8.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES, INCLUDING ANY USER CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, IS AT YOUR SOLE RISK, AND THE PRESTOINTELLIGENCE SERVICES, INCLUDING ANY USER CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. PRESTOINTELLIGENCE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) PRESTOINTELLIGENCE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES, INCLUDING ANY USER CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES, INCLUDING ANY USER CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING ANY USER CONTENT THAT IS ACCESSIBLE VIA THE SERVICES, WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT OR DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. PRESTOINTELLIGENCE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PRESTOINTELLIGENCE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, PrestoIntelligence may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at PrestoIntelligence’s sole discretion. The provisions of this section apply with full force to such features or tools.
8.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT PRESTOINTELLIGENCE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PRESTOINTELLIGENCE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE SERVICES, INCLUDING ANY USER CONTENT, OR THIRD-PARTY SERVICES PROVIDED BY SUCH THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
8.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT PRESTOINTELLIGENCE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES.
8.4 Limitations. Notwithstanding the forgoing THE PRESTOINTELLIGENCE PARTIES do not disclaim any warranty or other right UNDER THIS SECTION 8 that THE PRESTOINTELLIGENCE PARTIES ARE prohibited from disclaiming under applicable law.
9. Limitation of Liability.
9.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PRESTOINTELLIGENCE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT PRESTOINTELLIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES OR ANY USER CONTENT; (2) THE COST OF PROCUREMENT OF SUBSTITUTE JOBS, GOODS OR SERVICES RESULTING FROM ANY DATA, CONTENT, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN CONNECTION WITH THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PRESTOINTELLIGENCE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PRESTOINTELLIGENCE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A PRESTOINTELLIGENCE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL PRESTOINTELLIGENCE PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO YOU BY PrestoIntelligence during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PRESTOINTELLIGENCE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PRESTOINTELLIGENCE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A PRESTOINTELLIGENCE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
9.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PRESTOINTELLIGENCE AND YOU.
10. Procedure for Making Claims of Copyright Infringement. It is PrestoIntelligence’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to PrestoIntelligence by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for PrestoIntelligence’s Copyright Agent for notice of claims of copyright infringement is as follows: PrestoIntelligence Copyright Manager, 701 Brazos, Suite 1616, Austin, TX 78701.
11.1 Violations. If PrestoIntelligence becomes aware of any possible violations by you of the Terms, PrestoIntelligence reserves the right to investigate such violations. If, as a result of the investigation, PrestoIntelligence believes that criminal activity has occurred, PrestoIntelligence reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. PrestoIntelligence is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including your User Content, in PrestoIntelligence’s possession in connection with your use of the Services, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that your use of the Services violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of PrestoIntelligence, its Users or the public, and all enforcement or other government officials, as PrestoIntelligence in its sole discretion believes to be necessary or appropriate.
11.2 Breach. In the event that PrestoIntelligence determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Services, PrestoIntelligence reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to PrestoIntelligence) that you have violated the Terms;
(b) Delete any of User Content provided by you or your agent(s) to the Services;
(c) Discontinue your registration(s) with the any of the Services;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which PrestoIntelligence deems to be appropriate.
12. Term and Termination.
12.1 Generally. Subject to this Section, these Terms will remain in full force and effect while you use the Services. PrestoIntelligence may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. If you want to terminate the Services provided by PrestoIntelligence, you may do so by (a) notifying PrestoIntelligence at any time and (b) closing your Account. Your notice should be sent, in writing, to PrestoIntelligence’s address set forth below. Upon termination of these Terms, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. PrestoIntelligence will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12.2 No Subsequent Registration. If your registration(s) with or ability to access the Services is discontinued by PrestoIntelligence due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, PrestoIntelligence reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
13. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with PrestoIntelligence and limits the manner in which you can seek relief from us.
13.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with PrestoIntelligence, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; (b) you or PrestoIntelligence may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents); and (c) the disputes and claims set forth in Section 13.8 shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Agreement shall not apply. This Arbitration Agreement applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by PrestoIntelligence and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims. While PrestoIntelligence will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, PrestoIntelligence shall not be precluded from moving to enforce its rights under the Federal Arbitration Act to compel arbitration on the terms and conditions set forth in this Arbitration Agreement. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH PRESTOINTELLIGENCE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST PRESTOINTELLIGENCE ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST PRESTOINTELLIGENCE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: Legalinc Corporate Services Inc., 2035 Sunset Lake Road Suite B-2, Newark, County of New Castle, Delaware 19702. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, PrestoIntelligence will pay them for you. In addition, PrestoIntelligence will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, PrestoIntelligence will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable, except for the interpretation or application of the PAGA Waiver set forth in Section 13.6. The arbitration will decide the rights and liabilities, if any, of you and PrestoIntelligence. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4 Waiver of Jury Trial. YOU AND PRESTOINTELLIGENCE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and PrestoIntelligence are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 14.8.
13.6 PAGA Waiver. Notwithstanding any other provision of the Terms or Arbitration Agreement, to the extent permitted by law, (1) PrestoIntelligence and you agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004, California Labor Code § 2698 et seq. (“PAGA”) in any court or in arbitration, and (2) for any claim brought on a private attorney general basis—i.e., where you are seeking to pursue a claim on behalf of a government entity—both you and PrestoIntelligence agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (“PAGA Waiver”). Notwithstanding any other provision of the Terms or this Arbitration Agreement, the validity of the PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Arbitration Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the parties’ attempt to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) any representative action brought under PAGA on behalf of others must be litigated in a civil court of competent jurisdiction and not in arbitration.
13.7 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: PrestoIntelligence, 701 Brazos, Suite 1616, Austin, TX 78701 or emailing us at: email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your PrestoIntelligence username (if any), the email address you used to set up your PrestoIntelligence account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.8 Limitations on How this Arbitration Agreement Applies. The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Agreement shall not apply:
(a) A representative action brought on behalf of others under PAGA, to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction;
(b) Claims for workers compensation, state disability insurance and unemployment insurance benefits; and
(c) Regardless of any other terms of this Arbitration Agreement, nothing prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in the Terms or this Arbitration Agreement prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement. Nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration.
13.9 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.10 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with PrestoIntelligence.
13.11 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if PrestoIntelligence makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to PrestoIntelligence.
14. General Provisions.
14.1 Independent Contractors. You acknowledge that you are an independent contractor and not an employee of PrestoIntelligence for all purposes, and acknowledge your sole responsibility for complying with all federal, state and local tax filing and payment obligations that pertain to any remuneration received from Customers in connection with the Services. Neither these Terms nor your performance under these Terms shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between PrestoIntelligence and you. You shall be solely responsible for all tax withholding, Social Security, Worker’s Compensation Insurance, FICA, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pensions, and other obligations or benefits. You acknowledge that PrestoIntelligence is not rendering legal, tax, or investment advice, nor is PrestoIntelligence a fiduciary of you. Accordingly, you acknowledge that you may seek advice from an appropriate professional to comply with any and all applicable federal, state, and local laws or ordinances.
14.2 No Employment. Nothing in the Terms shall in any way be construed to constitute you or your employees or agents as an agent, employee or representative of PrestoIntelligence. Without limiting the generality of the foregoing, you are not authorized to bind PrestoIntelligence to any liability or obligation or to represent that you have any such authority. PrestoIntelligence and you agree that you and your employees and agents will receive no PrestoIntelligence -sponsored benefits from PrestoIntelligence where benefits include, but are not limited to, paid vacation, sick leave, medical insurance and 401k participation. If you, your employees, or agents, are reclassified by a state or federal agency or court as PrestoIntelligence’s employee, you, your employees, or agents, as applicable, will become a reclassified employee and will receive no benefits from PrestoIntelligence, except those mandated by state or federal law, even if by the terms of PrestoIntelligence’s benefit plans or programs of PrestoIntelligence in effect at the time of such reclassification, you, your employees or agents, as applicable, would otherwise be eligible for such benefits.
14.3 Electronic Communications. The communications between you and PrestoIntelligence use electronic means, whether you visit the Services or send PrestoIntelligence e-mails, or whether PrestoIntelligence posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from PrestoIntelligence in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that PrestoIntelligence provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
14.4 Release. You hereby release PrestoIntelligence Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a PrestoIntelligence Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder.
14.5 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without PrestoIntelligence’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.6 Force Majeure. PrestoIntelligence shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.7 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.8 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and PrestoIntelligence agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of California.
14.9 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
14.10 Notice. Where PrestoIntelligence requires that you provide an e-mail address, you are responsible for providing PrestoIntelligence with your most current e-mail address. In the event that the last e-mail address you provided to PrestoIntelligence is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, PrestoIntelligence’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to PrestoIntelligence at the following address: 701 Brazos, Suite 1616, Austin, TX 78701. Such notice shall be deemed given when received by PrestoIntelligence by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
14.11 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.12 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
14.13 Export Control. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from PrestoIntelligence, or any products utilizing such data, in violation of the United States export laws or regulations.
14.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14.15 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Terms