Last updated: April 30, 2018
These Terms of Service (“Terms”) constitute a legally binding agreement between ClipCall Inc. (“we“, “us“, “our“, or the “ClipCall“) and users of our Services (defined below) (“User” or “you“). These Terms govern your use of the ClipCall mobile application (“App“), and services offered via or in connection with the App (collectively the “Services”). Users may use the Services either as the recipient or purchaser (a “Customer”), or as the local provider (a “Service Provider”), of goods and services. Certain provisions of these Terms apply only to Service Providers or to Customers, respectively, as described more fully below. By using or accessing the Services or downloading the App, you represent that (1) you have read, understand and agree to be bound by these Terms, (2) you are at least 18 years old and of legal age to form a binding contract, and (3) you have the authority to enter into these Terms personally (or on behalf of the entity that you have named as the user, and to bind that entity to these Terms).
IF YOU DO NOT AGREE TO THE TERMS IN THEIR ENTIRETY, YOU MUST CEASE USING THE SERVICES AT ONCE, AND YOU MAY NOT DOWNLOAD, COPY, ACCESS OR INSTALL THE APP OR ANY PART THEREOF, AND MAY NOT USE IT IN ANY MANNER WHATSOEVER.
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RELATING IN ANY WAY TO YOUR USE OF THE SERVICES. THE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. BY ENTERING INTO THE TERMS, YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW. PLEASE SEE SECTION 17 BELOW FOR MORE INFORMATION REGARDING ARBITRATION AND HOW IT DIFFERS FROM A PROCEEDING IN A COURT OF LAW.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICES 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.
CERTAIN FEATURES OF THE SERVICES MAY BE BILLED ON A SUBSCRCIPTION BASIS (AS INDICATED WHEN YOU SIGN UP FOR SUCH SERVICES) FOR A DEFINED PERIOD (THE “INITIAL TERM”), AND WILL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT OUR THEN-CURRENT FEE FOR SUCH SERVICES, UNLESS YOU OPT OUT OF AUTO-RENEWAL IN ACCORDANCE WITH SECTION 10.5 BELOW.
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes within the App or on our website located at www.clipcall.it. We will notify you of any changes to our Terms by posting the new Terms here: http://www.clipcall.it/main/terms/. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our App or website. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. PLEASE REGULARLY CHECK www.clipcall.it TO VIEW THE THEN-CURRENT TERMS.
1. AGE LIMITATION
THE SERVICES ARE NOT INTENDED FOR INDIVIDUALS UNDER THE AGE OF 18. IF YOU ARE UNDER 18, YOU MAY NOT USE THE SERVICES.
2. The Services.
2.1. The Services are designed to connect Customers with Service Providers and help coordinate the provision of services by such Service Providers through the App. Generally stated, the Services allow: (i) Customers to submit descriptions of the services they need, using a video filmed on your mobile device, text messages or images within the App interface (“Service Request”), (ii) Service Providers to provide quotes to Customers with respect to the Service Request (“Quotes”), and (iii) Customers and Service Providers to benefit from certain features in the App to assist in fulfilling Service Requests, such as Project tracking tools, and payment processing. ClipCall’s responsibilities are limited to providing the Services as summarized above, and more fully described in the balance of these Terms. We also provide, for the benefit of Customers and the maintenance of the quality of the Services generally, our Project Success Plan, which is hereby incorporated by reference.
2.2. As a Customer, you represent and warrant (i) that the Service Requests you submit are true and accurate, and (ii) you will pay the agreed upon price for the project that is described in your Service Request (“Project”) subject to the negotiated terms and conditions between you and the Service Provider (payment for the Project, however, shall be as set forth in Section 10 of these Terms). You are solely responsible for the accuracy and completeness of a Service Request you submit and for all content contained in a Service Request. Submission of a Service Request does not obligate ClipCall to make the Service Request available on the Services and ClipCall may remove a Service Request with or without notice at any time for any reason. You agree that ClipCall will not be liable to you for any removal of a Service Request or any part thereof.
2.3. ClipCall makes no representation to you, as the Customer, regarding Service Providers, including that such Service Providers are qualified to perform the applicable Project. You acknowledge and agree that the inclusion of a particular Service Provider on a list of Service Providers does not operate as a recommendation of such Service Provider by ClipCall. The list of Service Providers available through the Service may not be a complete list of all potentially qualified service providers in your area. Each Service Provider indicates in its Business Profile (available to you via the Services) certain information and qualifications which may assist you in comparing Service Providers, and in selecting the one most suitable to perform your Service Request. In addition, we may publish through the Service certain business scores and recommendations with respect to Service Providers, which are based in part on aggregate Customer feedback, and which may assist your decision. However, Customers are solely responsible for selecting the Service Providers they eventually choose to work with. The Customer and Service Provider can then enter into an agreement directly with each other for the Service Provider to perform the Project. Other than with respect to the payment procedures described in these Terms, Customers and Service Providers (and not ClipCall) are solely responsible for any interaction between them, and ClipCall has no liability for the performance of a Project.
2.4. By participating as a Service Provider, you represent and warrant: (i) you are registering either for yourself (if an individual or unincorporated business) or for a business that you have the authority to legally bind; (ii) that the information you submit to us or a Customer or otherwise post on the Services, whether in your Business Profile, in a Quote, or otherwise (collectively, a “Service Posting”), is true and accurate and that you will promptly update it (and your Service Provider Financial Information as defined and set forth in Section 10.3) promptly to maintain their accuracy and completeness for so long as you maintain an Account with us; (iii) that you will perform the Projects in accordance with your Service Posting; (iv) that you have obtained and will maintain all certifications, licenses and legal requirements necessary to perform each Project for which you provide a Quote, and that you comply with all applicable laws and industry standards (including business licenses and, to the extent applicable, the collection and remittance of sales taxes); (v) that you will maintain valid workers compensation and professional liability insurance policies in amounts sufficient to meet your statutory obligations and to cover any damages that might occur during or as a result of performing each Project; (vi) that you will provide the services in a Project without imposing restrictions or policies not fully described to Customers in writing prior to such Customers engaging you to perform a Project; and (vii) that you will not solicit Customers to pay for your services outside of the Services or otherwise circumvent any fees that are paid or would be payable to ClipCall, to the extent applicable, and (viii) that you understand that any work performed for a Customer to whom you are introduced through the Service is subject to these Terms, including the fees payable to ClipCall. You agree that any breach of the above representations, or other breach of this Section 2.4, may result in your immediate removal as a Service Provider from the App by ClipCall, in our sole discretion, as well as a penalty of $2,000, which you agree is not punitive damages but a reasonable estimation of the liquidated damages caused by such breach. You further agree that (A) unless you obtain the consent of any Customer, you will use the personal information of the Customer provided to you by ClipCall in connection with the Services only to communicate with and provide your services to the Customer, and for no other purpose, (B) all communications with Customers will be conducted via the App, (C) you will not turn off or disable the ability of the App to provide Customers and ClipCall with information about your location, which you acknowledge is a critical element of the Services, and (D) you will guarantee the workmanship of the services you provide for a minimum of six (6) months (the “Service Provider Warrantee”) , and not charge Customer for any additional services required to honor the Service Provider Warrantee during such period.
2.5. You are solely responsible for the accuracy and completeness of all Service Postings and for all content contained in such submissions. Submission of a Service Posting does not obligate ClipCall to make your posting or any of its contents available on the Services and ClipCall may remove any Service Posting with or without notice at any time for any reason. You agree that ClipCall will not be liable to you for any removal of a Service Posting or any part thereof. You acknowledge that ClipCall is screening potential Service Providers and that ClipCall publishes business scores and ratings with respect to Service Providers, which may include reviews of you.
2.6. ClipCall does not control the quality, safety, or legality of any aspect of the Project, the ability of Service Providers to provide their services, or the ability of Customers to pay Service Providers. The relationship between the Customers and the Service Providers are governed by the provisions of these Terms as follows: if you are a Customer, you provide to each Service Provider the covenants, representations and warranties provided to ClipCall in Section 2.2. If you are a Service Provider, you provide to each Customer the covenants, representations and warranties provided to ClipCall in Sections 2.4 and 2.5. Customers and Service Providers each acknowledge that the other is a third party beneficiary of these Terms, but solely with respect to those provisions.
2.7. Consent to Receive Service Provider Calls and Messages. If you are a Customer, by submitting the Service Request through the App, you agree that your Service Request, including all submitted data, video and content, will be sent to several Service Providers identified by us. You also agree and acknowledge that you may receive telephone calls or text messages from the applicable Service Providers to the telephone number you provide to discuss their potential fulfillment of your Service Request (“Service Provider Calls“) and that such calls may be placed using an automatic telephone dialing system. Service Provider Calls might be connected through ClipCall’s automated system, however, ClipCall does not guarantee that you will receive any Service Provider Calls in connection with your submission of a Service Request. Consent to receive autodialed Service Provider Calls is not a condition of purchasing any property, goods or services and you are always free to search for contact Service Providers directly without using our App.
2.8. BY SUBMITTING A SERVICE REQUEST, YOU EXPLICITLY CONSENT TO RECEIVE EACH SERVICE PROVIDER CALL THAT YOU RECEIVE IN CONNECTION WITH THE SUBMISSION OF SUCH SERVICE REQUEST. IF YOU DO NOT CONSENT TO RECEIVING SUCH CALLS, DO NOT SUBMIT SERVICE REQUESTS VIA THE APP.
2.9. We do not charge a fee for the calls and/or videos (“Calls”) made via the App; however, depending on your phone plan, your mobile carrier may charge you for each call placed or received via the App, which uses the standard phone and carrier functionality of your mobile device. We assume no responsibility for charges incurred by your using the call functionality of the Services. The call functionality of the Services may not be available in all areas at all times and we have no liability for any such transmission delay or failure. The call functionality may not work in the event of product, software, coverage, or other changes made by your wireless carrier or changes you make to your mobile device. You must provide your own wireless device, subscribe to a wireless service on a participating mobile carrier, and be able to receive calls using that wireless device and your carrier’s service.
2.10. You as the Customer also acknowledge and agree that your Service Request might be published to dedicated domains in social networks, established by ClipCall for the purpose of locating Service Providers (among others).
2.11. You as the Customer acknowledge and agree that that ClipCall publishes business scores and ratings with respect to Service Providers, which may include your reviews.
2.12. You acknowledge and agree that the Service Provider Calls and any other calls or communications placed or received via the App may be recorded and stored by us, and you also acknowledge that you and the Service Provider will be able to access these recordings through the App. This function is essential to the provision of the Services and may not be disabled.
2.13. WHETHER AS A CUSTOMER OR SERVICE PROVIDER, BY PLACING OR ANSWERING A CALL, CHAT OR MESSAGE THROUGH THE APP, YOU EXPLICITLY CONSENT TO CLIPCALL RECORDING AND STORING SUCH PHONE CALL FOR THE SOLE PURPOSE OF PROVIDING THE SERVICES. IF YOU DO NOT CONSENT TO SUCH RECORDING, DO NOT PLACE OR ANSWER ANY CALL THROUGH THE APP.
2.14. The video available through the Service Request will be available to the relevant Customer and Service Provider through the App. If you wish to delete the video, please contact ClipCall at firstname.lastname@example.org. Please however note, that once a Project is accepted and the payment taken, neither party can delete the video since it is part of the record and critical to any dispute arising out of the Project.
2.15. You must provide all equipment and software necessary to connect to the App, including a mobile device that is suitable to connect with and use the App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the App.
3. Disclaimers; Release.
3.1. Compliance with Laws. As noted above, Service Providers are solely responsible for compliance with all applicable laws, rules, regulations and local ordinances, including without limitation, necessary permits, or other taxes and payments which may be applicable to the performance of their services.
3.2. Limited Identity Verification. You authorize us, directly or through third parties, to make any inquiries we deem appropriate to help verify or check your identity or prevent fraud, including with respect to our handling of payments through the Service as described below. This may include asking you to provide a form of government identification (e.g. driver’s license or passport or tax ID number), your date of birth, and other information requiring you to take steps to confirm ownership of your email address and/or Payment Methods (as defined below); or attempting to screen your information against third party databases. Nevertheless, you acknowledge that ClipCall is not required to attempt to confirm any particular user’s purported identity, and does not warrant that our efforts will be successful. We do not endorse any persons who use or register for the Services. You are finally responsible, whether as a Customer or Service Provider, for determining the identity and suitability of others whom you may contact or who may contact you by means of the Services. You agree to exercise caution and good judgment in all interactions with other users. ClipCall encourages you to communicate directly with others through the tools available via the Services and to conduct your own investigation of the other users with whom you interact. You may also wish to consider using a third-party service that provides additional user verification.
3.3. RELEASE. ClipCall makes no warranties regarding users or the Services, Service Provider Postings or other content made available through the Services, or the interactions (if any) between the users within or outside of the Services, and each of the foregoing is provided by us “as is.” Your interactions with other users are solely between you and such user and ClipCall shall not be responsible for any loss or damage incurred as the result of any such interactions except as explicitly set forth in the Project Success Plan. Without limiting the foregoing, as a Customer you should conduct your own investigation prior to hiring a Service Provider to perform a Project. If there is a dispute between you and any other user, ClipCall’s sole and exclusive obligation is set forth in the Project Success Plan. The foregoing disclaimers shall not limit the more general disclaimers in these Terms. Except as set forth in the Project Success Plan, to the extent permitted under applicable laws, you hereby waive, release and forever discharge us (and our officers, employees, agents, successors, and assigns) from every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to: (i) any incorrect or inaccurate content posted on the Services, whether caused by us or any user of the Services, or by any of the equipment or programming associated with or utilized in the Services; (ii) the conduct, whether online or offline, of any Customer or Service Provider; (iii) any injury, loss or damage caused by another user, a Project, or content posted on the Services, whether online or offline; and (iv) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Services’ users’ communications.
3.4. Additional Service Provider Release. Without limiting the general release in Section 3.3, each Service Provider, on its own behalf and on behalf of every individual and corporate third party and subcontractor (collectively, “Subcontractors”) assisting in the performance of a Project, hereby waives, releases and forever discharges ClipCall (and our officers, employees, agents, successors, and assigns) and the relevant Customer, from every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to Service Provider’s and the Subcontractors’ performance of the Project. Such release applies whether or not Service Provider is required to be licensed or insured in its performance of the Project (and whether or not the Service Provider has complied with the covenants in Section 2.4). ClipCall reserves the right to require any Service Provider, as a condition to continued participation in the Services, to physically sign a separate waiver in form and substance satisfactory to ClipCall.
3.5. 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 ClipCall or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
4. Access to the App and Services.
4.1. Subject to these Terms, we hereby grant you a limited, non-transferable, non-sub-licensable, non-exclusive license to install the App and use the Services subject to these Terms on any applicable devices that are under your control. The Service may not be used for any other purposes without our prior written consent. You may not use the Services if you are not the owner or approved administrator of the device on which you activated or accessed the Services. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store or Google Play Store (each an “App Store,” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (the “Usage Rules”) when using the App. To the extent these Terms provide for usage rules that are conflict with the Usage Rules, the more restrictive term applies. With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced App”), you will only use the App Store Sourced App on an Apple-branded product that runs iOS (Apple’s proprietary operating system).
4.2. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the App Store. You acknowledge that the Terms are between you and ClipCall, and not with the App Store. ClipCall, not the App Store, is solely responsible for App and Services, 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 App, 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 App or Services. You agree to comply with, and your license to use the App 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 App or Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them. In addition to the general terms of this Section 4.2, the following applies to any App Store Sourced App:
A. In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced App to you (if any) and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced App. As between ClipCall 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 ClipCall.
B. You and ClipCall acknowledge that, as between ClipCall 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 App or your possession and use of the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation, and (iv) claims that the App Store Sourced App or your possession and use of that App Store Sourced App infringes a third party’s intellectual property rights. ClipCall, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such claims to the extent required by these Terms.
C. 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 App.
5. User Generated Content; Acceptable Use Policy.
5.1. “User Generated Content” means any and all information and content that a user submits to, or uses with, the Services, such as Service Requests, Service Postings Quotes, invoices, messages, etc. You are solely responsible for your User Generated Content. You assume all risks associated with use of your User Generated Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Generated Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Generated Content does not violate the Acceptable Use Policy (as defined below). You may not state or imply that your User Generated Content is in any way provided, sponsored, or endorsed by ClipCall. Because you alone are responsible for your User Generated Content you may expose yourself to liability if, for example, your User Generated Content violates the Acceptable Use Policy. While ClipCall records interactions between Customers and Service Providers via the App, the App is not intended as a storage service for User Generated Content, ClipCall is not obligated to backup any User Generated Content, and User Generated Content may be deleted at any time. You are solely responsible for creating backup copies of your User Generated Content if you desire. ClipCall has no responsibility or liability for the deletion or accuracy of any User Generated Content; the failure to store, transmit, or receive transmission of User Generated Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. You acknowledge that ClipCall has no obligation to pre-screen User Generated Content, although ClipCall may in its sole discretion pre-screen, refuse, or remove any User Generated Content at any time for any reason. PLEASE MAKE SURE THAT YOU ARE ALLOWED TO PROVIDE ALL YOUR USER GENERATED CONTENT WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE MAY BE ACCESSIBLE BY OTHER USERS OF THE SERVICES.
5.2. The Services contains User Generated Content provided by other users or third parties. We do not approve, endorse or make any representations or warranties with respect to such content. You use all such content at your own risk.
5.3. The following is our “Acceptable Use Policy”: as a condition of use, you agree not to use the Services for any purpose that is prohibited by the Terms or by applicable law. You will not (and will not permit any third party) either (i) take any action or (ii) make available any User Generated Content on or through the Services that: (A) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) is unlawful, threatening, abusive, harassing, harmful, defamatory, trade libelous, deceptive, fraudulent, false, intentionally misleading, pornographic, invasive of another’s privacy, tortious, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual), vulgar, profane or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (C) in violation of any laws, or obligations or restrictions imposed by any third party; (D) constitutes unauthorized or unsolicited advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (E) involves commercial activities and/or sales without ClipCall’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (F) impersonates any person or entity, including any employee or representative of ClipCall, or falsifies or misrepresents yourself or your affiliation with any person or entity; (G) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Terms; (H) harasses or interferes with another user’s use and enjoyment of the Services; (I) harvests, collects, gathers or assembles information or data regarding other users, including e-mail addresses, without their consent; (J) displays, mirrors, or frames the Services; (K) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or any software intended to damage or alter a computer system or data, interfering with, disrupting, or creating an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks, attempting to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means. The additional usage requirements in Section 10 below with respect to our payment services are also deemed part of the Acceptable Use Policy.
5.4. When you submit certain User Generated Content, you acknowledge and agree that such User Generated Content may be shared with other users, such as Service Providers or Customers.
5.5. ClipCall reserves the right (but has no obligation) to monitor or review the Services and User Generated Content at any time, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Generated Content, terminating your Account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy, any other provision of the Terms, any applicable law or otherwise create liability for us or any other person.
6. Using the Services.
6.1. In order to use the Services, you have to register for an account with us (“Account”). To create an Account, you must provide certain information about yourself as prompted by the registration process. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information and promptly update such information upon any change. You may delete your Account at any time, for any reason, by contacting us at: email@example.com. You are responsible for maintaining the confidentiality of your Account login information and all activities that occur under your Account, including payment authorizations. You agree to immediately notify ClipCall of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. ClipCall cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You agree not to create an Account or use the Services if you have been previously removed by us or banned from any of the Services. ClipCall may in its sole discretion suspend or terminate your Account and refuse any current or future use of the Services at any time for any reason. You agree that ClipCall will not be liable for any suspension or termination of your Account or any refusal of any use of the Services.
6.2. The rights granted to you in these Terms are subject to the your compliance with the Acceptable Use Policy and the following restrictions: you shall not: (i) permit any third party to use the Services; (ii) circumvent, disable or otherwise interfere with security-related features of the Services; (iii) modify, create a derivative work of, reverse engineer, decompile or disassemble the Services except to the extent permitted by applicable law and, in such an event, provided you first give us written notice thereof; (iv) remove, deface, obscure, or alter the Services, or any third parties, copyright notices, trademarks, or other proprietary rights notices affixed to or provided as part of the Services; (v) use the Services for benchmarking purposes or to develop any software, product or service that is the same as, substantially similar to, or competitive with the Services; or (vi) otherwise use the Services in any unlawful manner or in breach of these Terms.
6.3. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
6.4. ClipCall makes no representation that the Services are appropriate for use in locations other than the United States.
6.5. We may update the Services periodically but you agree that we are under no obligation to do so or to provide technical support or maintenance. If we do update the Services, it will be done automatically without notice to you if these updates are designed to improve, enhance or fix bugs in the then current version of the Services. By accepting these Terms, you agree to such updates.
6.6. We make no representation or warranties that the Services are or will be available for use in any particular location or at specific times. We may change, modify, suspend, or discontinue any aspect of the Services (including the payment services) at any time and without prior notice. You agree that we will not be liable for any change, modification, suspension, or discontinuation of the Services or any part thereof. If we modify these Terms, we will either post the modification on the Site or via the App or otherwise provide you with notice of the modification. We will also update the “Last Updated” date at the top of these Terms. By continuing to use the Services (including the payment services) after we have posted a modification or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
6.7. Your access and use of the Services is at your own risk and responsibility and you shall comply with all laws, rules and regulations applicable to you.
6.8. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for ClipCall to monitor such materials and that you access these materials at your own risk.
7. Intellectual Property Rights
7.1. The App and Services’ features, design and content, including without limitation, all text, documents, products, software, scripts, graphics, and services provided therein and the trademarks, service marks and logos contained therein (“Content and Marks”) are either owned by us or owned by third parties and licensed to us. The Content and Marks are protected under United States and foreign copyright and intellectual property laws and treaties. The Content and Marks are provided to you “AS IS” for your information and personal use only and are subject to the terms and conditions of these Terms. You agree not to use, copy, or distribute the Services or any part thereof other than as expressly permitted herein, or to interfere with security-related features of the Services. Nothing in these Terms constitutes a waiver of our intellectual property rights under any law. Our name, logo, and the product names associated with the Services belong to us or our licensors, and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms nor your access to the Services transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited usage and access rights expressly set forth in Section 4.1. ClipCall and its licensors reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
7.2. You agree that submission of any ideas, suggestions, and/or proposals to us (“Feedback”) is at your own risk and that ClipCall 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 ClipCall a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub licensable 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 wedeem appropriate, all Feedback, and to sublicense the foregoing rights. We will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not include any information or ideas that you consider to be confidential or proprietary in Feedback.
7.3. Each user owns its own User Generated Content.
7.4. You hereby grant, and you represent and warrant that you have the right to grant, to ClipCall an irrevocable, perpetual, nonexclusive, royalty-free, and fully paid, worldwide license to license, reproduce, distribute, modify, adapt, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Generated Content (in whole or in part), and to grant sublicenses of the foregoing, solely for the purposes of including your User Generated Content in the Services and operating and providing the App and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Generated Content.
7.5. It is ClipCall’s policy to respect the legitimate rights of copyright and other intellectual property owners, and we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Service who are repeat infringers of intellectual property rights, including copyrights. Should you believe that content available via the Services unlawfully infringes one or more of your copyrights and you wish to have the infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: (a) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (b) identification of the copyrighted work claimed to have been infringed; (c) a description of the nature and exact location of the content that you claim to infringe your copyright, in sufficient detail so to allow ClipCall to locate and identify such content; (d) your name, address, telephone number and email address; (e) a statement that you have a good faith belief that the use of the material in the manner described in your Complaint is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the Complaint is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
7.6. ClipCall’s Copyright Agent to receive DMCA takedown notices is firstname.lastname@example.org. You acknowledge that for us to be authorized to takedown any content, your DMCA takedown notice must comply with all the requirements of Section 7.5.
7.7. Please note that a copy of your complaint, including any contact information you provide (address, telephone number, and email address), will be forwarded to the person or entity whose content you claim infringes your right.
7.8. Pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
9. Incentive Program.
ClipCall may from time to time offer incentive programs where users can earn certain rewards through the Services. Each such program is subject to the terms and conditions associated with the program as made available by ClipCall. ClipCall has the right to terminate any program or to change, limit, modify, or cancel the program terms and conditions, at any time, with or without notice.
10. Fees and Financial Terms.
10.1 Key definitions
A. “Project Fees” means the amounts that are due and payable by a Customer in exchange for services provided by the Service Provider as a result of performance of a Project and includes ClipCall Fees. Service Provider alone, and not ClipCall, is responsible for setting the amount of Project Fees. Service Provider may in his or her sole discretion decide to include taxes that he or she determines toned to be collected in conjunction with the Project.
B. “ClipCall Fees” means the fee that we charge a Service Provider for the use of the Services, which is calculated as a percentage of the applicable quote agreed between the Customer and the Service Provider, and its part of the Project Fees.
C. “Payment Method” means the payment method that the Service Provider or Customer (as the case may be) has designated for use in connection with payments or payouts related to a Project, and which as the date of these Terms may be either a credit card, debit card, ACH, and Apple Pay if and when you have added such method to your ClipCall Account.
D. “Net Fees” means collectively Project Fees less ClipCall Fees plus any applicable Taxes.
10.2. Bookings and Payment Methods
A. Following a Service Request from a Customer, Service Providers may send the Customer a Quote that includes at least the following details: description of the proposed service, date to start the service, date to complete the service and proposed payment schedule and ClipCall Fees. Service Provider may update the Quote and send it back to the Customer or add additional Quote, and this process may continue until Customer and Service Provider agree to the pricing and other terms of the Project. At the time the Quote is final, the Service Provider and the Customer will have to approve the Quote as binding through the App, and to book a date to initiate the Project (“Booking”). EVERY USER AGREES AND ACKNOWLEDGES THAT A BOOKING IS A BINDING COMMITMENT ON SUCH USER – WHETHER AS A CUSTOMER OR SERVICE PROVIDER – AND AGREES TO PERFORM THEIR OBLIGATIONS AS SET FORTH IN THE FINAL BOOKING AND CONSISTENT WITH THESE TERMS. At the time of the Booking, ClipCall will collect the relevant fees for the Project (consistent with any payment schedules set forth in the Booking) from the Customer and hold the payment amount (as stated in the Quote) until Customer approves the Project (or, if applicable, a milestone event clearly stated in the Quote) as being done. Customer and Service Provider may agree during the course of the Project to modifications to the Booking including changes to the Quote, and in such case the provisions of this Section 10 will apply to all additional payments as set forth in the modified Booking.
B. We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payment Method used for the original payout to or payment by you, so that you end up receiving or paying the correct amount.
C. You authorize us, through our third party vendors, to store your Payment Method information and charge your Payment Method as outlined herein. You are responsible for keeping all information regarding your Payment Method current during the course of any Project, and failure to do so is a breach of these Terms.
D. We deduct ClipCall Fees and any applicable tax from the Service Fees before remitting the Net Fees to the Service Provider as described herein.
E. We cannot control any fees that may be charged by your bank related to our collection of the Service Fees, and we disclaim all liability in this regard. Whatever Payment Method you use may be subject to additional terms and conditions imposed by the applicable third-party service provider; please review such terms and conditions before selecting or using your Payment Method.
10.3. Financial Terms for Service Providers
A. In connection with and through your ClipCall Account, you are required to provide all information required for us to process payments related to Projects you perform, including, as applicable, the full legal name of the entity or individual Service Provider, billing address and Payment Method information as well any other information included on a 1099 form, including your tax ID number and SSN number (collectively, “Service Provider Financial Information”) which may be stored either by us or our third-party payment processor(s). You agree to promptly update your Service Provider Financial Information for so long as you maintain an Account, and to ensure the completeness, accuracy, and currency of such information. You further agree to indemnify us from any charges, losses or liabilities we may incur as a result of your failure to provide or maintain such information.
B. Other than as set forth below, for each Project, we will collect the Service Fees from the Customer upon confirmation of the Booking as set forth above, and will initiate payment of the Net Fees to the Service Provider based on the payment schedule and other agreed milestones in the Booking, within two (2) business days from the time the Customer approves the Project (or, if applicable, a milestone) as being done, unless it is your first Project with ClipCall, in which case, transfer will be made within seven (7) business days from the time the Customer approves the Project (or, if applicable, a milestone) as being done. Some Payment Methods involve the use of third-party payment processors, who may impose their own additional charges for the use of their services, including by deducting their charges from the Net Fees otherwise due to you.
C. Subject to the terms hereof, you as a Service Provider hereby appoint us as your limited agent solely for the purpose of accepting the Service Fees from Customers and distributing Net Fees to you. You acknowledge and agree that, notwithstanding the fact that we are not a party to the agreement between you and the Customer, we will collect and distribute Customer payments as described herein. Each Service Provider agrees that receipt of the Net Fees for a Booking from ClipCall will fully discharge any payment obligations of the Customer related to the Booking, and Service Provider will address all payment issues to ClipCall, and not Customer. Service Provider agrees that ClipCall may, in accordance with these Terms and the Project Success Plan, reduce the amount of Net Fees paid to Service Provider. Service Provider acknowledges that ClipCall has no liability for any acts or omissions of the Service Provider, or any damages caused Service Provider.
D. You as a Service Provider hereby consent to ClipCall automatically charging the Payment Methods associated with your Account, without the requirement to notify you prior to processing such payment, in the following circumstances:
When Customer triggers a chargeback through his or her Payment Method, where ClipCall has already remitted the Net Fee to the Service Provider on behalf of the Customer;
For fees determined to be due to Customer related to a Claim, as set forth in the Project Success Plan;
For no-shows, cancellations, and late start penalties as set forth in Section 10.7 below; and
For any liquidated damages pursuant to Section 2.4.
If ClipCall is unable to charge the Payment Method on file for any reason, Service Provider will indemnify ClipCall for the amounts due and the cost of any collection, including reasonable attorney’s fees.
E. As a condition of maintaining your access to the Services, ClipCall may require Service Provider to deposit funds in its ClipCall account to offset any amounts that ClipCall is entitled to collect from Service Provider pursuant to Section 10.3(D).
10.4. Financial Terms for Customers.
A. Prior to accepting any final Quote, you will be required to update your Account with all information required for us to process payments related to Projects you retain Service Providers to perform via the App, including, as applicable, your billing address and Payment Method information (collectively, “Customer Financial Information”) which may be stored either by us or our third-party payment processor(s). You agree to promptly update your Customer Financial Information for so long as any Project remains active, and to ensure the completeness, accuracy, and currency of such information. You further agree to indemnify us from any charges, losses or liabilities we may incur as a result of your failure to provide or maintain such information.
B. Only the Service Provider, not ClipCall, is responsible for honoring any confirmed final Quote, performing the Project, and accounting for damages resulting from performance of the Project. If you, as a Customer, choose to enter into a transaction with a Service Provider, you agree and understand that you will be required to enter into an agreement with the Service Provider and you agree to accept any terms, conditions, rules and restrictions associated with such Service Request imposed by the Service Provider (to the extent consistent with these Terms) as set forth in the accepted Booking, as it may be adjusted upon agreement of Customer and Service Provider subject to Section 10.2(A). You acknowledge and agree that you, and not ClipCall, will be responsible for performing the obligations of any such agreements, that we are not a party to such agreements, and that, with the exception of ClipCall’s obligations to process payment pursuant to these Terms, we disclaim all liability arising from or related to any such agreements.
C. You as a Customer agree to pay the Service Fees for any and all “done” Projects (or related milestones) and authorize us to collect and process the Service Fees as described below.
D. By accepting these Terms, you agree to conduct the entire communication between you and the Service Provider regarding any Project, including without limitation video, calls and chats as well as any financial transaction, solely through the App. Our obligations under the Project Success Plan are void if you fail to do so. If you do not agree to conduct all Project communications via the App. You may not use the Services.
E. You acknowledge and agree that, notwithstanding the fact that we are not a party to the agreement between you and the Service Provider, we act as the Service Provider’s agent solely for the purpose of accepting the Service Fees from you and distributing Net Fees to the Service Provider. Upon your actual payment of the Service Fees to us, your payment obligation to the Service Provider for the Service Fees is extinguished, and upon your authorization and Project status, we will be responsible for remitting the Net Fees to the Service Provider, in the manner described in these Terms. In the event that we do not remit any such amounts as described in these Terms, such Service Provider will have recourse only against us and not you.
F. You agree to pay us for any confirmed Project made in connection with your ClipCall Account in accordance with these Terms by the Payment Methods that you have selected. You hereby authorize the collection of such amounts by charging the Payment Method provided as part of confirming that the Project (or milestone) is “done”, with such collection to be done either directly by ClipCall or indirectly, via a third-party online payment processor or by one of the Payment Methods that you have.
G. You agree to approve and authorize us to release the Net Fees to the Service Provider based on the terms incorporated in the final Quote, including any milestones, in a timely manner, with no reasonable delay, and in no event more than three (3) days after the Service Provider informs you via the App that the Project is complete and confirms to the Booking. If you fail to approve the release of the Net Fees to the Service Provider in such time without providing reasonable documentation and supporting information via the App, you will be deemed to have approved the Project and we may release the Net Fee to the Service Provider.
10.5. Automatic Renewal and Cancellation.
A. Service Subscription Fees. Advanced features of the Services (such as ClipCall Prime) are provided on a subscription basis (a “Services Subscription”). The fees for Services Subscriptions (each, a “Subscription Fee”) are due in advance, with the initial payment due when you add a Services Subscription to your Account (each such time, a “Service Commencement Date”). Services Subscriptions are not valid until we accept your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
B. Services Subscriptions will automatically renew at the rates then in effect until cancelled as set forth herein. By subscribing, you authorize us to charge your Payment Provider at the beginning of any subscription period. Upon renewal of your Services Subscription, if we do not receive payment from your Payment Provider, (i) you will immediately pay all amounts due on your Account, and/or (ii) we may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Services Subscription will be re-activated and for purposes of automatic renewal, the day payment was received will be considered your new Services Commencement Date).
C. Services Subscriptions may be cancelled at any time by contacting us via email at email@example.com. Monthly Services Subscriptions may be cancelled at any time. Annual Services Subscriptions will automatically renew for an additional year at the then-current price for the selected Services unless cancelled at least thirty (30) days prior to the anniversary of the applicable Service Commencement Date. Upon cancellation, (i) we will not charge you for any additional Subscription Fees for the cancelled Services, (ii) your Services Subscription will remain in effect until the end of the then-current Service period, and (iii) at the end of the Services Subscription, your Account will be converted into a normal Account, and any features of the cancelled Services Subscription will no longer be available. In addition, we will charge you based on the provisions of the then applicable subscription plan, see our Prime Plan provisions.
10.6. Disputes and Claims. In case of disputes between you and the Service Provider, the procedures set forth in the Project Success Plan will apply.
By ClipCall for Customer Delay. Each Customer agrees that if a Project is not completed or is materially delayed due to the acts or omissions of Customer (e.g., missing parts, materials, etc. that the Customer was supposed to supply, or Service Provider is denied access to the job site), then ClipCall at its option may elect to release the Service Fees (in whole or in part, as determined by ClipCall), to the Service Provider. In the event that ClipCall determines that a release of the entire Service Fee is warranted, the Customer nevertheless will be required to resubmit the Service Request and secure an alternate Service Provider to have the Project performed.
Cancellation by the Customer. If you, the Customer, wish to cancel a Booking, please contact our Live Chat Support. Please note that ClipCall Fee is not refundable, if your request was submitted more than 24 hours post booking. in addition, cost of materials/parts incurred by the Service Provider, including any shipment or delivery fees for such materials or parts will not be refunded as well (such material/parts purchased will remain in your possession and will be your property). If you wish to cancel the Project AFTER Project Start Date, you need to report and initiate a dispute process, by contacting us at firstname.lastname@example.org .
Cancellation by Service Provider. If you, Service Provider wish to cancel a Quote, please contact our live Chat Support. Your ClipCall Account may be suspended due to the following: (1) If you fail to show up without timely notification or cancellation of the Booking; (2) if you communicate with Customers outside of the ClipCall App, including without limitation, chats, calls, videos and payments. You, the Service Provider, understand and approve us to charge your Payment Method to compensate the Customer in the following amounts: (1) $100 penalty for No Show on the Project Start Date, unless due to a force majeure event (such as war or strike, etc.); (2) $50 penalty for cancellation less than 24 hours before the Project Start Date; and (3) $25 penalty for late show of more than 2 hours from the Project Start Date. All of the above events will also affect your Service Provider Quality Score, and ClipCall may publish an automated review on your Account indicating that a Booking was cancelled in such an event.
10.8. Third Party Payment Services Provider.
Tax regulations may require us to collect appropriate tax information from Service Providers, or to withhold taxes from payouts to Service Providers, or both. For instance, IRS regulations stipulate that we MUST collect an IRS Form W–9 from certain US Service Providers, and we do this as part of the Account creation process for Service Providers. You as a Service Provider are solely responsible for keeping the information in your tax forms current, complete and accurate. If you as a Service Provider fail to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold taxes from payments to you, we reserve the right in our sole discretion to freeze all payouts to you until resolution, to withhold such amounts as required by law, or to do both. You as a Service Provider understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, (ii) calculation and payment of any Taxes related to your provision of your services to the Customer, and (iii) including the applicable Taxes to be collected or obligations relating to applicable Taxes in your Quote. You are also solely responsible for remitting to the relevant authority any Taxes do with respect to the Net Fees you received. We cannot and do not offer tax-related advice to users of our Service.
11. Third-Party Links & Ads.
The App or Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of ClipCall, and ClipCall will not be responsible for any Third-Party Links & Ads. ClipCall provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
12. Disclaimer of Warranties.
YOU ACKNOWLEDGE AND AGREE THAT THE APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. CLIPCALL DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CODE. CLIPCALL DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING ANY SERVICES PROVIDED BY A SERVICE PROVIDER, ANY FAILURE TO PROVIDE SUCH SERVICES, OR THE CONDUCT OF ANY SERVICE PROVIDER OR CUSTOMER WITH WHOM YOU INTERACT, AND THE FOREGOING ARE AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLIPCALL OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ACKNOWLEDGE THAT THE CLIPCALL IS NOT ABLE TO CONTROL OR SUPERVISE YOUR INTERACTION OR TRANSACTIONS WITH OTHER USERS OF THE SERVICE AND YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR SUCH INTERACTION OR TRANSACTIONS. CLIPCALL RESERVES THE RIGHT, BUT HAS NO OBLIGATION BEYOND THAT SET FORTH IN THE PROJECT SUCCESS PLAN, TO (I) MONITOR ANY SUCH DISPUTE OR (II) UPON YOUR REQUEST, INTERVENE IN SUCH DISPUTE FOR THE PURPOSE OF RESOLVING THE DISPUTE, PROVIDED THAT CLIPCALL WILL NOT BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER ARISING FROM ANY MONITORING OR INTERVENTION ACTIVITIES THAT WE PERFORM.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND NOTWITHSTANDING CLIPCALL’S APPOINTMENT AS THE LIMITED AGENT OF THE SERVICE PROVIDERS FOR THE PURPOSE OF ACCEPTING SERVICES FEES FROM CUSTOMERS AND DISTRIBUTING NET FEES TO SERVICE PROVIDERS, CLIPCALL EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY CUSTOMER OR OTHER THIRD PARTY.
THIS SECTION 12 IS NOT INTENDED TO LIMIT CLIPCALL’S OBLIGATIONS WITH RESPECT TO THE PROJECT SUCCESS PLAN, HOWEVER, YOU AGREE THAT THE PROJECT SUCCESS PLAN IS AN ELEMENT OF THE SERVICES, AND NOT A WARANTEE OF ANY SORT.
13. Limitation of Liability.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF THE USE OF OUR SERVICES, INCLUDING OUR PROVISION OF PAYMENT SERVICES TO YOU HEREUNDER, REMAINS WITH YOU. IF YOU PERMIT OR AUTHORIZE ANOTHER PERSON TO USE YOUR CLIPCALL ACCOUNT IN ANY WAY, YOU ARE RESPONSIBLE FOR THE ACTIONS TAKEN BY THAT PERSON. NEITHER CLIPCALL NOR ANY OTHER PARTY INVOLVED IN PROVIDING THE SERVICES (INCLUDING THE PAYMENT SERVICES) WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE PAYMENT SERVICES, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES (INCLUDING THE PAYMENT SERVICES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CLIPCALL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE SERVICE PROVIDERS PURSUANT TO THE PAYMENT PROVISIONS OF THESE TERMS AND AS EXPLICITLY SET FORTH IN THE PROJECT SUCCESS PLAN, IN NO EVENT WILL CLIPCALL’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU (1) AS A CUSTOMER HAVE PAID OR (2) AS A SERVICE PROVIDER HAVE RECEIVED, IN CONNECTION WITH THE FOR THE PROJECT GIVING RISE TO THE ALLEGED LIABILITY, , OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLIPCALL AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless ClipCall and its affiliates, and respective suppliers, licensors, officers, directors, employees and agents from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) your use of the Service; and (ii) your breach of these Terms and/or applicable law. ClipCall reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify ClipCall, and you agree to cooperate with the defense of these claims. You agree not to settle any matter without the prior written consent of ClipCall. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. This provision does not require you to indemnify ClipCall or its affiliates, and respective suppliers, licensors, officers, directors, employees or agents 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 the Services.
15. Term and Termination.
These Terms shall become effective on the earlier to occur of the date that: (i) you download or install the App; or (ii) you first access or use the Services. These Terms shall continue in full effect until terminated, as set forth herein. You may terminate your relationship with us at any time by uninstalling the App and discontinuing your use of the Services. We 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. Upon termination of these Terms: (i) the license granted to you hereunder will automatically expire; (ii) your Account and right to access and use the Services will terminate immediately you will cease any and all use of the Services and will uninstall the App from all devices on which you downloaded or installed it. You understand that any termination of your Account may involve deletion of any data associated with your Account from our live databases. ClipCall 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 such data. Even after your rights under these Terms are terminated, all provisions of these Terms which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
16. Third Party Software and Licenses
Portions of the Services may include software that we license from third parties (“Third Party Software“), which may include open source software. Third Party Software is subject to the terms and conditions imposed by the licensors of that Third Party Software (“Third Party Terms“). You agree that your use of open source Third Party Software is subject to and governed by the related Third Party Terms. To the extent of any conflict between any Third Party Terms and the terms of these Terms, the Third Party Terms shall prevail in connection with the related Third Party Software. Notwithstanding anything to the contrary herein, we do not make any warranty with respect to Third Party Software.
17. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with ClipCall and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. By agreeing to arbitration, you are waiving your right to seek relief in a court of law.
17.1. Applicability of Arbitration Agreement. You acknowledge and agree that any dispute or claim relating in any way to these Terms, your use of the Services, or to any products or services sold or distributed by ClipCall, will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. Notwithstanding the foregoing, you agree that you will not bring any class action claims in small claims court. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
17.2. Waiver of jury trial. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
17.3. Commencement of Arbitration Proceeding. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to ClipCall at email@example.com The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, ClipCall 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 county where you live or at another mutually agreed location.
17.4. No Class Actions. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
17.5. Survival. This Arbitration Agreement will survive the termination of your relationship with ClipCall.
17.6. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
17.7. Courts. In any circumstances where the parties are permitted to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco County or San Francisco, California, for such purpose.
18. Export Controls
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, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from ClipCall, or any products utilizing such data, in violation of the United States export laws or regulations.
ClipCall is located at the address set forth below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product 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.
20. Electronic Communications
The communications between you and ClipCall use electronic means, whether you use the Services or send us emails, or whether ClipCall posts notices on the App or Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from ClipCall in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ClipCall provides to you electronically satisfy any legal requirement that such communications would satisfy if it were being in a hardcopy writing. The foregoing does not affect your non-waivable rights.
These Terms constitute the entire understanding between the parties with respect to the matters referred to herein. If any provision of these Terms is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. Failure of ClipCall to enforce any rights or to take action against you in the event of any breach hereunder shall not be deemed a waiver of such rights or of subsequent actions in the event of future breaches. These Terms and any right granted herein may not be assigned by you without the prior written consent of ClipCall. The terms and conditions set forth in these Terms shall inure to the benefit of and be binding upon permitted assignees.
22. Additional Provisions for Service Providers
This Section shall apply solely to Service Providers. Service Providers who place telephone or mobile calls regarding Service Requests (“Service Request Calls”) are obligated to comply with the applicable laws, rules and regulations regarding such Service Request Calls, including but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”) (47 U.S.C. § 227 and the Telemarketing Sales Rule (16 C.F.R. Part 310), which will apply to all Service Provider Calls made via the App. Without limiting the foregoing, Service Providers shall not: (i) initiate a Service Provider Call except in response to a Service Request; (ii) use scare tactics, false, misleading or deceptive tactics to upsell to the Customer your services, products and goods such as additional repairs or unneeded services; (iii) falsely represent to Customers that they need the service or product when in fact they do not; (iv) misrepresent yourself, the products or the services you are selling or present to be endorsed by a company you are not or that are sponsorships, endorsements or members that are false; (v) use misleading solicitation methods to get the Customers to purchase goods or services or misrepresent the martial aspects of the performance, efficacy or nature of the goods and services the Customer is offered; or (vi) market, sell or offer any additional products, services or goods before providing the applicable assistance to the user with regards to the Service Provider Request. In addition to the above, Service Providers must disclose to the Customer that the Service Request Calls are sales calls. Service Providers must also: (i) ensure that all required disclosures are made truthfully; (ii) disclose any and all material information to the Customer before he or she pays for the services. “Material information” shall mean any information that would likely affect the users decision whether or not to purchase the goods and services; and (iii) obtain express verifiable authorization if and when a payment is made.
23. Contact Us
If you have any questions or concerns regarding these Terms, please contact us at: 440 N Wolfe Rd. Sunnyvale, CA 94085 or to firstname.lastname@example.org.