Herculeze Terms of Service
Last updated: May 21, 2018
These Terms of Service constitute a legally binding agreement (“Agreement”) between you and Herculeze Technologies Inc. (“Company” or “Herculeze”) governing your use of the Herculeze Platform (as defined below), Company’s website (Herculeze.com or the “Site”) or mobile applications. The platform services provided by Company, the Site and mobile applications together are hereinafter collectively referred to as the “Herculeze Platform.”
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND CLASS ACTION WAIVER (SECTION 20). BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE HERCULEZE PLATFORM.
A few highlights of these Terms of Service include:
- Your agreement that the Herculeze Platform is provided “as is” and without warranty (Section 16).
- Your agreement that Company has no liability regarding the Herculeze Platform (Section 17).
- Your acknowledgment and agreement that Company does not supervise, direct or control a Provider’s work or the Transports in any manner (Section 1).
- Your acknowledgement and agreement that Clients (as defined below) are responsible for determining if the Provider they hire is qualified to perform the Task at hand. You further acknowledge and agree that except in select cities as outlined in Section 23 below, Herculeze does not determine whether any particular Provider holds a license, certification, accreditation or insurance.
- Your agreement that Company has no liability regarding the performance of Transports. Notwithstanding that, Company provides Users the SHIELD (Section 12) to ensure your satisfaction with the Herculeze Platform, which provides protection for Company’s Users.
- Your consent to release Company from liability based on claims between Users (Section 2) and generally (Section 17).
- Your agreement to indemnify Company from claims due to your use or inability to use the Herculeze Platform or content submitted from your account to the Herculeze Platform (Section 18).
1. Herculeze Platform Connects Providers and Clients
The Herculeze Platform is a web-based communications marketplace platform which enables the connection between Customers and Providers. “Clients” are individuals and/or businesses seeking to obtain Task services (“Transports”) from Providers and are therefore clients of Providers, and “Providers” are individuals and/or businesses seeking to perform Transports for Clients. Clients and Providers together are hereinafter referred to as “Users.” If you agree on the terms of a Task with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
PROVIDERS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF COMPANY. COMPANY DOES NOT PERFORM TRANSPORTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TRANSPORTS. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A PROVIDER’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE TRANSPORTS IN ANY MANNER.
The Herculeze Platform only enables connections between Users for the fulfillment of Transports. Company is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Transports, Providers, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Transports requested and services provided by Users identified through the Herculeze Platform whether in public, private, or offline interactions.
2. User Vetting and User Representation and Warranties
In Company’s sole discretion, Users may be subject to an extensive vetting process before they can register for and during their use of the Herculeze Platform, including but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. Users hereby give consent to Company to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although Company may perform background checks of Users, as outlined above, Company is not required to do so and cannot confirm that each User is who they claim to be and therefore, Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Herculeze Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE HERCULEZE PLATFORM AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE HERCULEZE PLATFORM.
Company’s sole liability with respect to Transports and Users is as set forth in the Herculeze SHIELD described in Section 12.
User Representations and Warranties
Contract between Clients and Providers
You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a Task with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the Herculeze Platform, and any other contractual terms accepted by both the Provider and their Client to the extent such terms do not conflict with the terms in this Agreement including this Section 3 and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Provider.
Where approved in advance by the Client, the Provider is not obligated to personally perform the Services. Before any Task services are performed by any assistants, helpers, subcontractors or other personnel (collectively “Assistants”) engaged by the Provider, the Provider shall require any such individuals to become registered Providers on the Herculeze Platform pursuant to Company policies as described on the Herculeze Platform. A Provider’s failure to bring an Assistant who is not a registered Provider could lead to removal from the Herculeze Platform. The Provider assumes full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable state and federal income tax withholdings as to the Provider and all persons engaged by the Provider in the performance of the Task services.
The Client shall pay their Provider directly for completed Task services through the PSP (as defined below) as indicated on the Herculeze Platform at the rates agreed to by the parties in the Service Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a Task. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding between the parties.
4. Billing and Payment
Users of the Herculeze Platform contract for Transports directly with other Users. Company will not be a party to any contracts for Transports or services. Payment for Task services through the Herculeze Platform is made directly from the Client to the Provider and not by Company. If a Client fails to pay a Provider for services provided through the Herculeze Platform, Company may, in its sole discretion, pay the Provider for such services but Company is not obligated to do so. Notwithstanding the foregoing, Company is not obligated to pay Provider for Client’s failure to pay for services.
Users of the Herculeze Platform will be required to provide their credit card and/or bank account details to Company and the Payment Service Provider retained by Company (the “PSP”). Providers are responsible for invoicing their Clients within 24 hours of the work being performed even if the Task is not completed in its entirety or is designed as “ongoing”. Clients will be responsible for paying the invoice for each Task (the “Invoice”), which will include (i) the pricing terms of the Task agreed with and provided by a Provider (“Task Payment”), (ii) any out of pocket expenses agreed with and submitted by a Provider in connection with the Task, (iii) any tip or gratuity, if applicable, (iv) the service charge Company assesses for the Herculeze Platform, variable based on the Task Payment amount, and (v) the platform fee (sometimes referred to as Trust & Support Fee), which is used to offset Company's cost of providing Users with customer support, providing the SHIELD set forth in Section 13, and other various business objectives, and (vi) cancellation fees, if applicable. Providers will be responsible for paying (i) registration fees (applicable to Provider registrants), (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments. Clients may also be charged credit card processing fees equal to three percent (3%) of the aggregate expense amount if expenses related to a Task individually, or Transports in the aggregate over a 30-day period, exceed $300.00.
To help prevent fraud and safeguard User information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a very temporary charge is placed on account associated with the User and then refunded within 1-3 business days. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary between $0.01 US to $5000.00 US depending on the estimated value of the Task and reimbursements.
When Client receives confirmation through the Herculeze Platform or via email that a Task has been completed, Client automatically authorizes Company to provide Client's payment details to the PSP for processing of Task Payment, out of pocket expenses owed to Provider, and the service charge and trust and support fees owed to Company for the use of the Herculeze Platform. You may be charged a cancellation fee through the PSP if you book a Task, but cancel it before it is completed, as set forth in the Task pricing terms or if you agree to perform a Task but fail to complete it, as may be set forth in the Task pricing terms.
Company reserves the right, in its sole discretion (but not the obligation), upon request from Client or Provider or upon notice of any potential fraud, unauthorized charges or other misuse of the Herculeze Platform, to (i) place on hold any Task Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
Task Payment and fees must be paid through the PSP as indicated on the Herculeze Platform. Clients may pay using a Gift Card (see Section 5).
Users of the Herculeze Platform will be liable for any taxes (including VAT, if applicable) required to be paid on the Task services provided under the Agreement (other than taxes on Company’s income).
The Herculeze Platform is only a venue for connecting Users. Because Company is not involved in the actual contact between Users or in the completion of the Task, in the event that you have a dispute with one or more Users, you release Company and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS HERCULEZE PLATFORM. Company’s sole liability with respect to disputes between Users is as set forth in the SHIELD described in Section 13
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF MICHIGAN CIVIL CODE.
6. Public Areas; Acceptable Use
The Herculeze Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the Herculeze Platform, you may not share your personal contact information with other Users.
Without limitation, while using the Herculeze Platform, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Company staff, or use information learned from the Herculeze Platform or during the performance of Transports to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of any other User or Company staff outside of the Herculeze Platform.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Herculeze Platform.
- Use the Herculeze Platform for any purpose, including, but not limited to posting or completing a Task, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose through the Herculeze Platform which are not relevant to the Task services offered through the Herculeze Platform.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
- Post the same Task repeatedly (“Spamming”). Spamming is strictly prohibited.
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Herculeze Platform.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Company, without the prior written consent of Company.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Herculeze Platform in any manner.
- Hack or interfere with the Herculeze Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the Herculeze Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Company.
- Upload content to the Herculeze Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the Herculeze Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Herculeze Platform as set forth herein.
- Use the Herculeze Platform to collect usernames and or/email addresses of Users by electronic or other means.
- Use the Herculeze Platform or the Task services in violation of this Agreement.
- Use the Herculeze Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
- Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the Herculeze Platform, including inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
- Register under different usernames or identities, after your account has been suspended or terminated or register under multiple usernames or identities.
- Cause any third party to engage in the restricted activities above
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
7. Termination and Suspension
Company may terminate, limit or suspend your right to use the Herculeze Platform in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon Task of such notice.
If Company terminates, limits, or suspends your right to use the Herculeze Platform as a Client for a User Breach, you will not be entitled to any refund of unused balance in your account, and you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating, limiting, or suspending your account, Company reserves the right to take appropriate legal action, criminal, and injunctive redress in accordance with Section 20.
Even after your right to use the Herculeze Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Herculeze Platform at its sole discretion. Except for refundable fees you have advanced to Company (if any), Company is not liable to you for any modification or discontinuance of all or any portion of the Herculeze Platform. Notwithstanding anything to the contrary in this Section 8, Company has the right to restrict anyone from completing registration as a Provider if Company believes such person may threaten the safety and integrity of the Herculeze Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Herculeze Platform. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
8. Account, Password, Security, and Mobile Phone Use, Texts and Calls
You must register with Company and create an account to use the Herculeze Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Company for accessing the Herculeze Platform. You are solely and fully responsible for all activities that occur under your password or account. Company has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact Company immediately.
By providing your mobile phone number and using the Herculeze Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the Herculeze Platform, (b) facilitate the carrying out of Transports through the Herculeze Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Transports, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming Transports and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Company’s mobile application, texting “STOP” in response to any texts, or by emailing firstname.lastname@example.org and specifying you want to out-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing /span> email@example.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
9. Your Information and Likeness
“Your Information” is defined as any information and materials you provide to Company or other Users in connection with your registration for and use of the Herculeze Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to Company that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The Herculeze Platform hosts User Generated Content relating to reviews and ratings of specific Providers (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake their own research to be satisfied that a specific Provider is the right person for a Task. You agree that Company is not liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Company do so.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the Herculeze Platform.
Each Provider who provides to Company any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the Herculeze Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- Use any videotape, film, record or photograph that such Provider provides to Company or that Company takes of Provider, and use, reproduce, modify, or creative derivatives of such Provider picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”), in and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such Provider in connection with the Herculeze Platform.
- Reproduce in all media any recordings of such Provider’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Herculeze Platform.
- Use, and permit to be used, such Provider’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Herculeze Platform in any media.
- Use, and permit to be used, such Provider’s name and identity in connection with the Herculeze Platform.
- Each Provider hereby waives all rights and releases Company from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Provider’s identity, likeness or voice in connection with the Herculeze Platform.
Each Provider acknowledges that Company shall not owe any financial or other remuneration for using the recordings provided hereunder by such Provider, either for initial or subsequent transmission or playback, and further acknowledges that Company is not responsible for any expense or liability incurred as a result of such Provider’s recordings or participation in any recordings, including any loss of such recording data.
10. Links to Other Websites
The Herculeze Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by Company of those sites or their content. They are provided as an information service, for reference and convenience only. Company does not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the Herculeze Platform to such websites (including without limitation external websites that are framed by the Herculeze Platform as well as any advertisements displayed in connection therewith) does not mean that Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the Herculeze Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Herculeze Platform; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the Herculeze Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Herculeze Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Herculeze Platform. You will have the ability to disable the connection between your account on the Herculeze Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Herculeze Platform. At your request made via e-mail to firstname.lastname@example.org, Company will deactivate the connection between the Herculeze Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
11. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM TRANSPORTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TRANSPORTS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, control or monitor a Provider’s work or Transports performed in any manner. Company does not set a Provider’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a particular Task. Company does not provide any supervision to Users.
The Herculeze Platform is not an employment service and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Task services.
12. Herculeze SHIELD
The Herculeze SHIELD is part of these Terms of Services and incorporated by reference. Providers determine what categories they are qualified to Task in and scope the Task directly with their Client. Herculeze does not oversee, monitor or direct how a Provider performs a Task and does not monitor Transports or chat threads between Users. Clients are advised to confirm with their Provider that their Provider is qualified to perform the Task prior to the Task taking place. Accordingly, Company is not liable for the acts or omissions of Users and the Herculeze SHIELD in no way contradicts that premise. That said, Herculeze wants Users to be satisfied with their experience using the Herculeze Platform and the SHIELD is in place to encourage continued use of the Herculeze Platform.
The Herculeze SHIELD provides protection for up to (a) USD 10,000 in damages arising from (i) property damage to Clients or third parties arising directly from a another Provider’s negligence in performance of a Task through the Herculeze Platform and (ii) bodily injury to other Users or third parties arising directly from a another Provider’s negligence in the performance of a Task through the Herculeze Platform, and (b) USD 10,000 per occurrence from theft of a Client or third party’s property by a Provider during performance of a Task through the Herculeze Platform. These payments are subject to certain conditions, limitations and exclusions, as described in the Herculeze SHIELD. Additionally, if a Client hires a Licensed Provider through the Herculeze Platform, that Licensed Provider’s insurance shall be primary to any claim filed related to services provided by that Licensed Provider and Herculeze will provide contact information for that Licensed Provider or re-open any closed chat threads, upon a Client’s request. Please contact email@example.com if you have questions.
13. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Herculeze Platform is owned by Company, excluding User Generated Content that Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Herculeze Platform without Company's express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the Herculeze Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
14. Copyright Complaints and Copyright Agent
Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Herculeze Platform infringe upon your copyright or other intellectual property right, please send the following information to Company's Copyright Agent at: Herculeze, Inc., 363 South St, Bldg C, Rochester, MI 48307:
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Herculeze Platform where the material you claim is infringed is located. Include enough information to allow Company to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A 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;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
15. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
16. Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE HERCULEZE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE HERCULEZE PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE HERCULEZE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE HERCULEZE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE HERCULEZE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE HERCULEZE PLATFORM WILL BE UNINTERRUPTED OR THAT THE HERCULEZE PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HERCULEZE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY TASK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE HERCULEZE PLATFORM. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE HERCULEZE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE HERCULEZE SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE TASK AND SELECTING THEIR PROVIDER AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR PROVIDER. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY PROVIDER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
17. No Liability
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE HERCULEZE PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE HERCULEZE PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION, OTHER THAN PURSUANT TO THE SHIELD.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE HERCULEZE PLATFORM OR THE Task SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE HERCULEZE PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES IN EXCESS OF THE SHIELD, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, successors and assigns, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys' fees and costs incurred, in connection with (i) your use or inability to use the Herculeze Platform or Task Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law the rights of any User or third party (iv) any content submitted by you or using your account to the Herculeze Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
19. Governing Law
Except as provided in Section 20 or expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of Michigan, without regard to choice of law principles.
20. Special Promotions
Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified or removed at any time by Company without advance notification and the liability of any of Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to Section 18 of these Terms of Service, including but not limited to Section 18 of these Terms of Service.
21. No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
22. General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
23. Licensed Professionals
Herculeze does not oversee, monitor or supervise the posting, scoping or performance of Transports. Accordingly, Clients must determine for themselves whether a Provider is qualified to perform the specific Task at hand. Clients may wish to consult their state or local requirements to determine whether certain Transports are required to be performed by a licensed professional. In certain cities, Clients can now find licensed professionals who carry the necessary state- or local-level license to perform such Transports (“Licensed Providers”) on the Herculeze Platform. Licensed Providers will be explicitly identified as licensed professionals and only Providers with such designation have been verified by Herculeze to have a license. You can read more about which cities have Licensed Providers, how Herculeze vets Licensed Providers and helpful tips on hiring Licensed Providers by checking out the Client Support Center Article on Licensed Providers which is incorporated by reference into these Terms of Service.
24. Changes to this Agreement and the Herculeze Platform