Effective Date: October 18th 2018
This User Agreement (this “Agreement”) explains the terms under which you are allowed to use the website Domovendo.com and any web or mobile services or applications (collectively, the “Site”) offered by Domovendo (“DV”).
This Agreement is a part of and incorporates by reference the Account Agreement, and the Privacy Agreement. Please read all documents carefully to fully understand your rights and obligations. Your use of the Site after the effective date will signify that you have read, understood, and agreed to be bound by these Agreements.
To the extent permitted by applicable law, we may modify this Agreement with prospective effect without prior notice to you, and any revisions to this Agreement will take effect when posted on the Site, unless a later date is otherwise stated in the revised Agreement. Please check the Site often for updates.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN A JURY TRIAL OR CLASS ACTION. YOU HAVE THE RIGHT TO OPT OUT OF THE ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION AS DESCRIBED 16 BELOW.
The Site is a venue where our Members use both our marketplace and our platform for online services. Clients are individuals looking to sell their homes without using a traditional real estate agency. Real Estate Service Providers (RESPs) are freelance real estate agents and other professionals that include, but are not limited to, builders, landscapers, photographers, and decorators who offer their services to Clients.
Clients and RESPs become Members when they open accounts on the Site, or uses services provided by the Site. As Members, they use the Site services to advertise, locate, introduce themselves to each other, screen and select each other, negotiate contract terms, and enter into contracts between each other. Once two or more Members enter into a contract, they use the Site to collaborate, communicate about, invoice, and pay for the contract.
- Relationship between Client and RESPs
Owner and RESP agree that when RESP accepts an contract awarded by Client, Client and RESP will be deemed to have entered into a “Member Contract” comprising the following agreements:
- those Relationship Agreements applicable to the Contract as described in the next subsection titled “Relationship Agreements”;
- the remaining Terms of Service (other than the Relationship Agreements);
- the Contract terms awarded and accepted on the Site, to the extent not inconsistent with the Mandatory Terms (defined below); and
- any other contractual provisions accepted by both Client and RESP and uploaded to the Site, to the extent not inconsistent with the Mandatory Terms.
- Relationship with Domovendo
Domovendo is not a party to the dealings between Client and RESP, including posts, proposals, screening selection contracting, provision of RESP services, and payment for a contract. DV does not introduce RESPs to Clients or help RESPs find contracts. DV merely makes the Site Services available to enable RESPs to identify and determine the suitability of Clients for themselves and to enable Clients to identify and determine the suitability of RESPs for themselves. DV may sort contract proposals to enable Clients to more easily navigate and choose which RESPs to contact. DV does not direct, has no control over, makes no representations, and does not guarantee the quality, safety, or legality of RESP services. DV does not guarantee the truth or accuracy of contract listings; the qualifications, background, or identities of Members; the ability of RESPs to deliver services; the ability of Clients to pay for RESP services; or that a Client or RESP can or will complete a transaction.
DV is not required to and may not verify any information given to us by RESPs or Clients, nor does DV perform background checks on RESPs or Clients.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT DV MAY PROVIDE INFORMATION ABOUT A RESP OR CLIENT, SUCH AS A STRENGTH OR RISK SCORE, GEOGRAPHICAL LOCATION, OR VERIFICATION OF IDENTITY OR CREDENTIALS. HOWEVER, SUCH INFORMATION IS BASED SOLELY ON DATA THAT RESP OR CLIENT SUBMITS TO DV, AND DV PROVIDES SUCH INFORMATION SOLELY FOR THE CONVENIENCE OF MEMBERS AND IS NOT AN INTRODUCTION, ENDORSEMENT, OR RECOMMENDATION BY DV.
Third-Party Beneficiary of Member Contract
Client and RESP appoint DV as a third-party beneficiary of their Member Contract for purposes of enforcing any obligations owed to, and any benefits conferred on, DV by the Member Contract. Client and RESP further agree that DV has the right to take such actions with respect to their accounts, including, and without limitation, the suspension, closure, legal actions, as DV deems necessary to enforce our rights as a third-party beneficiary under the Member Contract.
No Agency, Partnership, or Joint Venture
This Agreement and any registration for or use of the site will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between you and DV, except and solely to the extent expressly stated in the these agreements.
Records of Compliance
Client and RESP will each (1) create and maintain records to document satisfaction of their respective obligations under this Agreement and any Member Contract, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (2) provide copies of such records to DV upon request.
Nothing in this subsection will be construed as requiring DV to supervise or monitor RESP Services or a Member’s compliance with this Agreement, the other Terms of Service, or a Member Contract.
- Service Fee
When a Client pays a RESP or funds related to a Contract are otherwise released to a RESP as required by contract, Client will remit a certain percentage of the payment, as determined from time to time by DV as compensation for providing a forum where both Client and RESP could meet.
No Fee for Introducing or For Finding Contracts
DV does not introduce Clients to RESPs and does not help RESPs find contracts. DV merely makes the Site Services available to enable RESPs to do so themselves. Therefore, DV does not charge a fee when a RESP finds a suitable Client or finds a Contract. However, Client and a RESP are obligated to use the Site to pay and receive payment for the RESP Services if they identified each other through the Site, as detailed in section 5 titled “Non-Circumvention” below.
DV may offer additional features, such as featured posts or verification features, for additional fees. Such assessments will be made if and when Members choose to use such services.
You agree that a substantial portion of the compensation DV receives for making the Site available to you is the Service Fee described in the subsection titled “Service Fee” in section 4 above.
You further acknowledge and agree that DV only collects this Service Fee when a Client and a RESP pay DV the agreed upon percentage immediately upon completion of a Contract. Therefore, in consideration for our making the Site available to you, for 24 months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), you must report to the site all payments for any services directly or indirectly provided to or received from that party or arising out of your relationship with that party (the “DV Relationship”).
You may opt-out of this obligation only if Client, prospective Client, or RESP pays DV an “Opt-Out Fee” of $200 per contract.
- Site License
Subject to and conditioned on your compliance with this Agreement, the other Terms of Service, and the other Site Policies, DV grants you a limited license to access and, if you are a Member, to use the Site for the purpose of ordering and receiving the Site Services available and authorized from the Site. You must not access or use the Site or Site Services for any reasons that are in competition with DV.
You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site in any way for any public or commercial purpose without prior written consent of DV or the rights holder.
You must not use any content of the Site on any other website or in a networked computer environment for any purpose except your own viewing. You must not frame or link to the Site except as permitted in writing by DV. You must not attempt to reverse engineer or attempt to interfere with the operation of any part of the Site unless expressly permitted by applicable law.
The Site and any portion of the Site may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose that is not expressly permitted by DV. DV and our licensors retain all of their respective right, title, and interest in and to all patent rights, inventions, copyrights, knowhow, and trade secrets relating to the Site.
All other product names, company names, marks, logos, and symbols on the Site may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of DV’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
- Member Content License
When you post Member content on the Site, you represent and warrant that you have the right, power, and authority to post that content and grant the licenses specified below. You further represent and warrant that by posting such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights.
To the extent your Member Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that DV may exercise the rights to your Member Content granted under this Agreement without any liability or obligation for any payment.
You retain all your ownership rights in any Member Content you post on DV. You also grant to DV and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, and reproduce such content in maintaining and providing services.
You also hereby grant each Member a non-exclusive license to access your Member Content through the Site, and to use, reproduce, distribute, display, and perform such Member Content, only to the extent permitted through the normal functionality of the Site and subject to all applicable confidentiality and other provisions of this agreement.
The above licenses granted by you will terminate within a commercially reasonable time after you remove or delete your Member Content from the Site, except that you grant DV and our successors and affiliates the irrevocable and perpetual license to retain and use, but not publicly display, distribute, or perform, server or archival copies of all Member Content that you have removed or deleted to the extent permitted by applicable law.
- Unauthorized Access and Use; Site Interference; Malicious Software
You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming.
You agree that you will not:
(a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
(b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of DV and the appropriate third party, as applicable;
(c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site;
(d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
(e) transmit spam, chain letters, or other unsolicited communications;
(f) attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site;
(g) collect or harvest any personally identifiable information, including account names, from the Site;
(h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or
(i) directly or indirectly, advertise or promote another website, product, or service or to solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to impair in any manner, including aesthetic disruptions or distortions, the operation of the Site. This includes efforts to allow you or any other person to access or damage:
- storage media,
- or otherwise interfere with operations of the Site
- or any other software, firmware, hardware, computer system, or network of DV or any third party.
- Third-Party Content Directory of RESPs
The Site contains a directory of RESPs. The directory is populated with information from third-party sources, from RESPs themselves, and from other Members.
DV provides this directory as a convenience and does not confirm or verify the information contained in it. DV neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than authorized DV employees acting in their official capacities.
Links and Applications
The Site may contain links to Third-Party Sites. The Site may also contain applications that allow you to access Third-Party Sites via the Site. Such Third-Party Sites are owned and operated by the third parties and/or their licensors. Your access and use of Third-Party Sites, including online communication services such as chat, email, and calls, will be governed by the terms and policies of the applicable Third-Party Sites. You acknowledge that DV is not responsible for:
- the availability or accuracy of Third-Party Sites; or
- the content, advertising, or products on or available from Third-Party Sites.
- You use the links and these services at your own risk and agree that your use of an application via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
- Certain Disclaimers, Limitations, and Exclusions
You are solely responsible for creation, storage, and backup of your business records. You acknowledge that you provide your personal information, or information about the entity that you represent, at your own risk.
DV is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to:
- Your use of or your inability to use the Site or Site Services;
- Delays or disruptions in the Site or Site Services;
- Viruses or other malicious software obtained by accessing, or linking to, the Site or Site Services;
- Glitches, bugs, errors, or inaccuracies of any kind in the Site or Site Services;
- Damage to your hardware device from the use of the Site or Site Services;
- The content, actions, or inactions of third parties’ use of the Site or Site Services;
- A suspension or other action taken with respect to your account;
- Your reliance on the quality, accuracy, or reliability of Contract postings, RESP profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; or
- Your need to modify practices, content, or behavior or your loss of or inability to do business as a result of changes to the Terms of Service.
- Warranty Disclaimer
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE, OR THE CONTINUATION OF THE SITE.
THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE).
WE DISCLAIM ALL AND MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY, OR RELIABILITY OF ANY THIRD-PARTY, THE RESP SERVICES, OR THE ACCURACY OF THE POSTINGS MADE ON THE SITE BY ANY THIRD-PARTY.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING LIMITATIONS ON IMPLIED WARRANTIES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability
IN THE EVENT OF A DISPUTE BETWEEN YOU AND DV AND/OR AN AFFILIATE, NEITHER YOU NOR DV, OUR AFFILIATES, OUR LICENSORS WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF LIABILITY IS FOUND, THE LIABILITY OF DV, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE GREATER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY DV WITH RESPECT TO MEMBER CONTRACTS OF WHICH USER WAS A PARTY AS A CLIENT OR RESP DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL AND CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
In addition to the recognition that DV is not a party to any contract between Client and RESP, you hereby release DV, our Affiliates, and our respective officers, directors, employees, attorneys, agents, subsidiaries, joint ventures, and our and their respective successors and assigns from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another Member. This applies whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the provision, functions, and quality of the RESP Services provided to Client by a RESP and requests for refunds based upon Disputes. Procedures regarding the handling of certain Disputes between Members are discussed below in section 16. TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
This release will not apply to a claim that DV failed to meet our obligations under this Agreement and the other Terms of Service.
You agree to defend, hold harmless, and indemnify DV, our Affiliates, our and their respective officers, directors, employees, attorneys, agents, joint ventures, and our and their respective successors and assigns (each such party an “Indemnified Party”) from and against any and all losses, costs, expenses, damages, and other liabilities (including reasonable attorneys’ fees and costs) incurred by an Indemnified Party arising from or related to any cause of action, claim, suit, proceeding, demand, or action brought by a third-party against an Indemnified Party in connection with your use of the Site Services. This includes:
(a) any payment obligations incurred through use of the Site Services;
(b) any allegation of any infringement, misappropriation, or other violation of any Intellectual Property Rights by you or your agents, including by any Work Product provided by you or your agents;
(i) use of the Site;
(ii) decision to supply credit or other information via the Site, including financial information;
(iii) decision to submit postings and accept offers from other Members; (iv) breach of any provision of this Agreement or the other Terms of Service;
(v) dispute of or failure to pay any invoice or make any other payment; (vi) obligations to a RESP, including payment obligations;
(d) any breach of contract or other claims made by Members with which you conducted business through the Site;
(e) any liability arising from the tax treatment of payments made or receive through the Site Services or any portion thereof;
(f) anything which the Indemnified Party may do or refrain from doing in connection with this Agreement; or
(g) monies deposited under an agreement with this site or for any interest upon any such monies. The foregoing indemnity will include, without limitation, such cause of action, claim, suit, proceeding, demand, or action arising out of the negligence of any Indemnified Party; provided that the foregoing indemnification will not extend to the gross negligence or willful misconduct of an Indemnified Party.
- Agreement Term; Termination and Suspension
This Agreement will become effective upon your first visit to the Site and will remain in effect for the duration of your use of the Site.
Unless both you and DV agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice, except as otherwise provided below:
You will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Contracts, whichever is later, to DV for any Site Services and to any RESPs for any RESP Services.
Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you, any Member with whom you have entered into a Member Contract, or DV from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
Without limiting DV’s other remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if:
(a) you breach the letter or spirit of any terms and conditions of this Agreement or other Terms of Service;
(b) we suspect or become aware that you have provided false or misleading information to us; or
(c) we believe, in our sole discretion, that your actions may cause legal liability for you, our Members, or DV or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity.
Once your Account is suspended or closed, you must not continue to use the Site under the same Account or a different Account or reregister under a new Account without DV’s prior written consent.
Without limiting DV’s other remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed DV or our Affiliates under this Agreement, you must pay DV for all fees owed to DV and our Affiliates and reimburse DV for all losses and costs (including any and all time incurred by employees of DV or our Affiliates) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
Except as otherwise required by applicable law, we will notify you if we suspend or close your Account, unless we believe, in our sole judgment, that giving notice may cause damage. You agree that the value, reputation, and goodwill of the Site depend on transparency of Member’s account status to all Members, including both yourself and other Members who have entered into Member Contracts with you. You therefore agree as follows:
IF DV DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, DV HAS THE RIGHT, BUT NOT THE OBLIGATION, TO
(1) NOTIFY OTHER MEMBERS THAT HAVE ENTERED INTO MEMBER CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND
(2) PROVIDE THOSE MEMBERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
When your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable, DV will retain this information along with all your previous posts and proposals for a period of one year from the date of closure to give you ample time to institute an appeal of our decision through the process described in the subsection titled “Disputes with DV” in section 16 below.
If you appeal our decision through that process within one year, DV will retain your information until such dispute is resolved. If you fail to appeal our decision within one year, DV may delete your information, including data, messages, files, and other material you keep on the Site.
- Cancellations, Refunds, and Disputes; Mandatory Binding Arbitration and Class Action/Jury Trial Waiver Disputes with DV
If a dispute arises between you and DV or any of our Affiliates, our goal is to resolve the dispute quickly and cost effectively. Accordingly, you, DV, and our Affiliates agree that we will resolve any claim or controversy at law or in equity that arises between you and DV or our Affiliates out of or relating to this Agreement or the DV Services (a “Claim”) in accordance with this section.
Law and Forum for Disputes
This Agreement and any Claim, including, without limitation, any dispute relating to a Member Contract, will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG); provided, however, that any Claims made by any RESP located within the United States will be governed by the law of the state in which such RESP resides or is legally organized.
You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
Informal Dispute Resolution
Before serving a demand for arbitration of a Claim, or otherwise seeking injunctive or other equitable relief in a court of law as expressly permitted in this Agreement, you agree to first notify DV of the Claim and seek informal resolution of the Claim. The notice must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. DV will have 60 days from the date of our receipt of the Notice to informally resolve the Claim, which, if successful, will avoid the need for further action.
Mandatory Binding Arbitration and Class Action/Jury Trial Waiver
This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration Provision”) applies to all Visitors and Members, except RESPs located outside of the United States and its territories. In the unlikely event that DV is unable to resolve a Claim within 60 days of our receipt of the Notice, you, DV, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator recognized by the American Bar Association.
- Scope of Arbitration Agreement and Conduct of Arbitration.
Arbitration as provided in this Arbitration Provision is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). Except as otherwise stated in this Arbitration Provision, this Arbitration Provision applies to any Claim (including any claimed employment with DV or one of our Affiliates or successors) or termination of your relationship with DV, regardless of the date of Claim accrual. This Arbitration Provision survives after your relationship with DV ends. Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of Claims that otherwise would be resolved in a court of law or before a forum other than arbitration.
Except as otherwise stated in this Arbitration Provision, you, DV, and our Affiliates agree that any Claim covered by this Arbitration Provision, or arising out of, relating to, or concerning the validity, enforceability, or breach of this Arbitration Provision, will be resolved by binding arbitration administered by . If for any reason arbitration cannot be administered by an arbitrator recognized by the American Bar Association, a party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
The parties agree that any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
Except as it otherwise provides, this Arbitration Provision applies, without limitation, to all Claims arising out of or related to your relationship with DV or the termination of that relationship, any payments you claim due you from DV, trade secrets, unfair competition, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, or harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by DV and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes or regulations addressing the same or similar subject matters.
The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. This Arbitration Provision does not apply to litigation between DV and our Affiliates and you to which you are a party that is already pending in a state or federal court as of the effective date of this Arbitration Provision. This Arbitration Provision also does not apply to claims for workers’ compensation, state disability insurance, or unemployment insurance benefits. You, DV, or our Affiliates may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief. Notwithstanding this Arbitration Provision, you, DV, and our Affiliates retain the right to bring an action in small claims court within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Regardless of any other terms of this Arbitration Provision, a Claim may be brought before and remedies awarded by an administrative agency if applicable law permits the agency to adjudicate the Claim notwithstanding the existence of this Arbitration Provision. Such administrative Claims include, without limitation, Claims brought before the Equal Employment Opportunity Commission, the U.S. Department of Labor, or the National Labor Relations Board. Nothing in this Arbitration Provision will be deemed to preclude or excuse a party from bringing an administrative Claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a Claim in arbitration.
Claims that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Arbitration Provision.
- Enforcement of this Arbitration Provision.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
If the Class Action Waiver in subsection C below of this Arbitration Provision is deemed to be unenforceable, you, DV, and our Affiliates agree that this Arbitration Provision is otherwise silent as to any party’s ability to bring a class, collective, or representative action in arbitration.
- Class Action and Jury Trial Waiver.
THIS ARBITRATION PROVISION AFFECTS YOUR ABILITY TO PARTICIPATE IN CLASS, COLLECTIVE, OR REPRESENTATIVE ACTIONS. YOU, DV, AND OUR AFFILIATES AGREE TO BRING ANY CLAIM IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL REPRESENTATIVE BASIS ON BEHALF OF OTHERS. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIM TO BE BROUGHT, HEARD, OR ARBITRATED AS A CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION, OR AS A MEMBER IN ANY SUCH CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING (“CLASS ACTION WAIVER”).
THE CLASS ACTION WAIVER DOES NOT APPLY TO ANY CLAIM YOU BRING AS A PRIVATE ATTORNEY GENERAL SOLELY ON YOUR OWN BEHALF AND NOT ON BEHALF OF OTHERS. NOTWITHSTANDING ANY OTHER PORTION OF THIS ARBITRATION PROVISION OR THE JAMS RULES, CLAIMS REGARDING THE VALIDITY, ENFORCEABILITY, OR BREACH OF THE CLASS ACTION WAIVER MAY BE RESOLVED ONLY BY A CIVIL COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. IN ANY CASE IN WHICH:
(1) THE CLAIM IS FILED AS A CLASS, COLLECTIVE, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION AND
(2) A CIVIL COURT OF COMPETENT JURISDICTION FINDS ALL OR PART OF THE CLASS ACTION WAIVER UNENFORCEABLE, THE CLASS, COLLECTIVE, REPRESENTATIVE, AND/OR PRIVATE ATTORNEY GENERAL ACTION TO THAT EXTENT MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION, BUT THE PORTION OF THE CLASS ACTION WAIVER THAT IS ENFORCEABLE WILL BE ENFORCED IN ARBITRATION.
YOU, DV, AND OUR AFFILIATES AGREE THAT YOU WILL NOT BE RETALIATED AGAINST, DISCIPLINED, OR THREATENED WITH DISCIPLINE AS A RESULT OF EXERCISING YOUR RIGHTS UNDER SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT BY FILING OR PARTICIPATING IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION IN ANY FORUM.
HOWEVER, DV AND OUR AFFILIATES MAY LAWFULLY SEEK ENFORCEMENT OF THIS ARBITRATION PROVISION AND THE CLASS ACTION WAIVER UNDER THE FEDERAL ARBITRATION ACT AND SEEK DISMISSAL OF SUCH CLASS, COLLECTIVE, OR REPRESENTATIVE ACTIONS OR CLAIMS.
THE CLASS ACTION WAIVER WILL BE SEVERABLE IN ANY CASE IN WHICH THE CLAIM IS FILED AS AN INDIVIDUAL ACTION, AND SEVERANCE IS NECESSARY TO ENSURE THAT THE INDIVIDUAL ACTION PROCEEDS IN ARBITRATION.
- Right to Opt Out of Arbitration and Class Action/Jury Trial Waiver.
You may opt out of this Arbitration Provision by notifying DV in writing within 30 days of the date you first register for the Site. To opt out, you must send a written notification to DV that includes (a) your username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve Claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of this Arbitration Provision.
- Notices and Communications
From DV to you
By visiting the Site, you are deemed to have executed this Agreement electronically, effective on the date you visit the Site, pursuant to the federal Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. §§ 7001 et seq.).
Visiting the Site constitutes your acknowledgement that you are able to electronically receive, download, and print this Agreement. Unless you otherwise indicate in writing to DV, DV and our Affiliates will communicate with you by email or by posting communications on the Site. You will be considered to have received a communication when DV sends it to the email address you have provided to DV on the Site or when DV posts such communication on the Site.
You must keep your email address updated on the Site, and you must regularly check the Site for postings.
Without limiting DV’s other rights under this Agreement, if you fail to respond to an email message from DV regarding a violation, dispute, or complaint within two Business Days, DV has the right to suspend or close, in our sole discretion, your Account.
Communications from you to DV
All notices to DV or Affiliates intended to have a legal effect must be in writing and delivered in writing via email to firstname.lastname@example.org. All such notices are deemed effective upon documented receipt by DV. DV does not accept service of any legal process by email or mail; all such service should occur by hand delivery to DV or its registered agent for service of process.
Upon your request, you may have this Agreement sent to you by email. Please contact DV to resolve a complaint regarding any aspect of service relating to the Site by writing to the attention of Customer Support at the above address or contact us through Customer Support.
- Miscellaneous Terms and Conditions
You are responsible for compliance with applicable foreign, federal, state, and local laws, keeping in mind that access to the contents of the Site may not be permitted under the laws of certain countries.
DV will not be considered to have modified or waived any of our rights or remedies under this Agreement unless the modification or waiver is in writing and signed by an authorized representative of DV.
No delay or omission by DV in exercising our rights or remedies will impair our rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
You will not transfer, assign, or delegate your rights or obligations (including your Account) under this Agreement to anyone without the prior express written consent of DV, and any attempt to do so will be null and void.
DV may assign this Agreement in our sole discretion.
Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If an arbitrator or court of competent jurisdiction deems any provision of this Agreement invalid, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement (except as noted in section 16 above), which will remain in full force and effect.
The Site is controlled and operated from our facilities in the United States. DV makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States federal, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control.
You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service without obtaining any and all required authorizations from the appropriate government authorities.
You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are:
(i) a resident of, or legally organized under the laws of, a country or geographic area embargoed by the United States or
(ii) subject to United States economic sanctions that prohibit your use of or access to the Site; or
(iii) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law, or any other similar conditions beyond the reasonable control of such party.
The time for performance of such party will be extended by the period of such delay but in no event longer than 60 days.
The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The section headings in this Agreement are included for ease of reference only and have no binding effect.
Even though DV drafted this Agreement, you represent that you had ample time to review and decide whether to agree to the terms of this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof will arise favoring or disfavoring you or DV because of the authorship of any provision of this Agreement.