Terms of Service
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE BAND OF HANDS PLATFORM.
BAND OF HANDS TERMS OF SERVICE
ACKNOWLEDGEMENT AND ACCEPTANCE OF GENERAL TERMS
Effective: May 31, 2018
This Terms of Service Agreement (“Agreement”) between you (“you” or “User”) and Band Of Hands, Inc., its board, successors and assigns (“Band Of Hands” or “we” or “us”) sets forth the terms under which you are allowed to use the BandofHands.com website and any web or mobile services or application (collectively, the “Sites”) and the job search and hiring services (the “Services”) offered through the Band Of Hands platform. If you do not agree with any of these terms, do not access or otherwise use the Sites and/or Services or any information contained on the Sites.
If you do not agree to the new terms, please delete your Account (as defined in the Accounts section below) before the new effective date. Your continued use of the Sites or Services after the new effective date of a revised version of this Agreement constitutes your acceptance and agreement to be bound by the revised terms of service. You are responsible for regularly reviewing this Agreement for updates and modifications to its terms. Band Of Hands does not assume any obligation to notify Users of any changes to this Agreement, or the creation or modification of any additional terms.
1.1 Sites and Services are intended for use by individuals or businesses seeking freelance or temporary jobs (also referred to herein as a “Worker”), and for individuals or companies seeking candidates for freelance or temporary jobs (also referred to herein as a “Poster”). A Poster may create a job post through the Sites, including a description of the services sought, pay arrangements, and a timeline for completion of the services, which is instantly available for Workers to view and respond at their free will. These Terms and Conditions of Use (“Terms”) apply to both Job Workers and to Job Posters who make use of the Platform (collectively, “Users” who may also be referred to throughout these Terms in the second person as “you”) and accordingly govern your access to and use of the Band Of Hands Platform or Sites.
2. GENERAL PROVISIONS
2.1 Sites License Subject to and conditioned on your compliance with this Agreement, and all other Sites’ Policies, Band Of Hands grants you a limited license to access and to use the Sites for the purpose of receiving the Sites’ Services available and authorized from the Sites. Without limiting the generality of the foregoing, you acknowledge that Band Of Hands expressly prohibits and you agree not to:
- Use the Platform, Sites or Services for any purpose other than to identify job and other work opportunities for yourself or to identify prospective applicants for job opportunities.
- Provide any false or misleading information about your identity or work or employment information provided by you to Band Of Hands in relation to your use of or access to the Sites and/or Services;
- Log into an account with a password not assigned to you;
- Impersonate any other person or User of the Sites and/or Services;
- Access personally identifiable information not intended for you;
- Use any content of the Sites on any other website or in a networked computer environment for any purpose except your own viewing;
- Access or use the Platform, Sites or Sites Services for any reasons that are in competition with Band Of Hands;
- Sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Sites in any way for any public or commercial purpose without prior written consent of Band Of Hands or the rights holder;
- Frame or link to the Sites except as permitted in writing by Band Of Hands;
- Attempt to reverse engineer or attempt to interfere with the operation of any part of the Sites unless expressly permitted by applicable law;
- Take any action that imposes or may impose an unreasonable or disproportionately large burden on the Sites’ infrastructure.
- Include any hyperlinks or any misleading, irrelevant and/or hidden keywords in any content posted by you.
- Intentionally expose the Sites and/or Service to any computer virus or any other program or code intended to disrupt or disable to operations of the Sites and/or Service;
- Use any robot, spider or other program or device to retrieve or index any portion of the Band Of Hands Sites;
- Harvest or otherwise collect information about other users for any purpose other than use of the Sites and/or Services as expressly permitted herein.
- Use the Sites and/or the Services to violate any applicable law or regulation, including, without limitation, the infringement of any copyright, trademark, trade secret or other intellectual property right of others, or violate the privacy or publicity rights of any other person.
- Post any content or information that is abusive, defamatory, discriminatory, hateful, obscene, vulgar, threatening, or otherwise objectionable.
- Harass, stalk, or otherwise subject any other user of the Sites and/or Services to unwanted and/or inappropriate contact.
- Post any position or business opportunity which requires payment from the applicant or requires recruitment of other individuals, sub-distributors or sub-agents such as a multi-level marketing scheme, pyramid scheme, franchise or distributorship arrangement.
- Send unsolicited mail or e-mail, make unsolicited phone calls or send unsolicited faxes and/or advertise any products or services by directly posting within the Services or by making unsolicited contact with any user via email, telephone, postal mail, or any other method of communication.
- Make any changes, additions and/or deletions to any content posted by any user without the express written authorization of such other user.
2.2 License Termination This limited license terminates automatically, without notice to you, if you breach this Agreement or any other of the Sites’ policies, and Band Of Hands may remove your postings from the Sites and/or the Services with or without cause. Upon any termination of this limited license, you agree to immediately destroy any electronic or printed materials and cease using the Sites and Services. However, cancellation of this License and Agreement shall not relieve any party of their obligations relative to any Service Engagements that have been entered into but not completed at the time of the cancellation.
2.3 Band Of Hands Trademark 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 Platform and Sites. Band Of Hands’ logos and name are trademarks of Band Of Hands (See Trademarks & Copyrights section below for additional information). All other product names, company names, marks, logos, design marks and symbols on the Sites 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 Band Of Hands’ or any third party’s intellectual property rights, whether by estoppel, implication, or otherwise.
2.4 Band Of Hands Accounts In order to access certain Services of the Sites, Band Of Hands requires you to become a registered user by setting up an account with a user name and password (“Account”). By setting up an Account, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions. When creating your Account, do not provide any false personal information or create an account for another without such other’s permission. You agree to comply with the procedures set forth by Band Of Hands regarding account registration (including your required current contact information and email address), password protection, and other requirements. You agree to assume sole responsibility for the security of passwords issued to you. You also agree to use your best efforts to prevent any third party from obtaining your password. You agree to notify us if your password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Please note that we will never ask for your Band Of Hands account password via email. If you forget your password, you must use our secured password reset protocol in place. Band Of Hands may cancel or suspend passwords at any time, including in the event of misuse of any and the reissuance or reactivation of passwords.
2.5 Background Checks Users on the Sites may or may not be subject to an extensive vetting process before they can register an Account. All Users understand that during the use of the Platform Services, some Posters may require a current Background Check and Motor Vehicle Report to include but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level using third party services as appropriate and requested. Users can request at their own expense a BackGround Check (BGC) and Motor Vehicle Report (MVR) be conducted where prompted within the Sites which hereby gives consent to Band Of Hands to direct the User to a Third Party supplier that conducts Background Checks. Users agree to the Terms of Service of this Third Party supplier of BGC and MVR as often as required in compliance with federal and state laws and the Fair Credit Reporting Act. Although Band Of Hands may or may not directly perform background checks of Users, as outlined above, Band Of Hands is not obligated to do so and Band Of Hands cannot confirm that each User is who they claim to be and therefore, Band Of Hands cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Services. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you do not know. Any Users profile that does have a BGC and/or MVR report that is included within the Sites is obtained at the Users expense and can only be utilized by that individual. Any questions, disputes or discrepancies with any BackGround Check or Motor Vehicle Report must be directed to the Third Party supplier at https://help.checkr.com/hc/en-us
3. AGREEMENTS, INSURANCE, FEES & PAYMENT METHOD
3.1 Job Agreements Once you have registered an Account on the Sites, you, as a Poster, may create a job post on the Sites, including a description and details of the services required, the hourly pay rate, and a timeline for completion of the services (the “Job”). You, as a Job Poster, acknowledge and agree that you will pay Workers a hourly pay rate that meets the average federal and/or state minimum wage requirements regardless of any platform fees taken by Band Of Hands. As a Worker, you may view posted Jobs, apply to a Job of interest or that is in line with your qualifications and experience. In order to complete the Post of a Job on the Sites, a Poster must enter a Payment Account (as defined below in the Fees and Payment Method section) and agrees that the Payment Account will be pre-authorized for the total sum of the funds specified in the details of the Job (or the amount agreed upon between a Poster and Worker if different from the original amount specified for a Job) (“Amount”). A Poster’s Job will be available and viewable to other Users of the Sites, and a Poster will receive notifications regarding potential candidates, i.e., Workers, that have applied for the Job. Once a Poster has found a suitable Worker for the Job, the Poster chooses the qualified Worker, and can further communicate with Worker regarding the Job details, management, and progress on the Sites. Once a Job is marked Complete, an invoice notice is immediately sent by the Worker for payment (as further detailed below) for review and approval by Poster. Once the Poster approves the invoice, Poster releases the funds for payment to Worker (less the service fees due to Band Of Hands and the per hour fees for Occupational Accident Insurance (OAI) and Independent Contractors Benefits Association (ICBA) as explained below.)
The engagement, contracting, and management of a Job is between a Poster and a Worker. Each Poster and Worker agree to execute a Job in accordance with the details of the agreement for the Job, this Agreement, and any other specified content by Band Of Hands on the Sites. A Poster is responsible for managing, inspecting, accepting and paying for satisfactory services and/or deliverables of a Job in a timely manner. Band Of Hands is not responsible for the hiring, firing, discipline or working conditions of a Worker. A Worker is responsible for carrying out the performance, quality, and execution of the services specified for a Job in a timely manner. Band Of Hands will not control the manner in which a Worker operates in carrying out a Job, and will not provide any Worker with any materials, information, tools, or equipment to complete any Job. Both Poster and Worker agree to act with good faith and fair dealing in carrying out a Job.
Posters and Workers acknowledge and agree that their relationship is that of Independent Contractors only and not Employees. The Services are not employment services and Band Of Hands does not serve as an employer of any User. Band Of Hands is not liable for any tax or withholdings, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your use of another User’s services. Band Of Hands is not responsible for monitoring, analyzing, or otherwise determining whether the relationship between a Poster and a Worker is that of an Independent Contractor relationship or employer-employee relationship. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employer-employee relationship between a Poster and Worker, or between Band Of Hands and any Poster or Worker.
3.2 General Liability Insurance Band Of Hands does not maintain any insurance to cover third party injury and property damage during the completion of a Job between a Poster and Worker. If any form of insurance (property and casualty, vehicular, etc.) is a requirement to perform any Job, then such requirement must be explicitly described in the Job description. Band Of Hands will not provide any such insurance and it is the sole responsibility of the Worker to obtain and maintain any required insurance at his or her own cost and expense.
3.4 Fees and Payment Method Band Of Hands does not charge Users a membership or recruitment fee at this time. In creating, hosting, maintaining, and providing the Site Services to its Users, Band Of Hands charges a service fee of 15% of the Amount for a Job (“Service Fee”) for each completed Job transaction between a Poster and Worker. Once a payment is made by a Poster, Worker acknowledges and agrees that Worker will receive on a gross basis 85% of the Job Price, the gross percentage for a Job before the OAI/ICBA $1.05 per hourly deduction. WORKER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE NET AMOUNT TO BE PAID FOR EACH JOB IS BROKEN DOWN AND ITEMIZED BEFORE CONTRACTOR ACCEPTS THE JOB. In addition, Poster and Worker are obligated to use the Sites to pay and receive payment for their work together if they identified each other through the Sites, and which is further detailed in the Band Of Hands’ Non-Circumvention policy below. Band Of Hands may revise its policies regarding fees charged in connection with the Site Services from time to time upon such notice as may be appropriate.
User hereby authorizes Band Of Hands’ payment service provider Stripe to process authorizations on Payment Accounts provided by User, to store Payment Account, credit card, and other financial details as User’s method of payment for the Site Services, and to charge User’s Payment Account provided by User. Accounts used with Stripe’s ACH feature must be from U.S. banks. The current balance shown on your account may not be updated instantly and may not include the amount of your latest payment/receipt. You agree that enrollment in ACH payment/receipts represents your written authorization to enroll in Stripe’s ACH service. By enrolling, you confirm that your browser is equipped with at least 128-bit security encryption, and your computer is capable of printing or storing a copy of your ACH confirmation. Band Of Hands reserves the right to cancel the ACH payment/receipt option, change the terms of this feature, or cancel users of it at any time.
By providing Payment Account information through the Sites, you represent, warrant, and covenant that: (a) you are legally authorized to provide such information to us; (b) you are legally authorized to perform payments using the Payment Account(s); and (c) such action does not violate the terms and conditions applicable to your use of such Payment Account(s) or applicable law. When you authorize a payment using Payment Account via the Sites, you represent, warrant, and covenant that there are sufficient funds or credit available to complete the payment using the designated Payment Account.
3.5 Invoices Generally In making and receiving payments through the Band Of Hands Sites, the Band Of Hands’ Billing and Payment Method allows Posters and Workers to issue invoices and enables Posters to authorize payments to a Worker utilizing a Third Party Settlement Organization. When a Worker completes a Job for a Poster, Worker will complete an electronic invoice form (the “Invoice”) and submit it to Poster via the Sites. A Worker must complete and submit an Invoice to Poster for each and every Job between such Poster and Worker. Worker will provide Poster with an itemized invoice, including, but not limited to, a description of the services performed, hours worked, payment required, costs and expenses related to the Job, and any other relevant Job details (“Invoice Details”). Before submitting an Invoice to Band Of Hands, Worker must verify and confirm the accuracy of the Invoice Details, or waive Worker’s right to review the Invoice Details. If Worker waives the right to review the Invoice Details, all items in the Invoice Details will be included on the Invoice as received by Poster. Once Worker submits an Invoice to Poster, Poster shall review and authorize the Payment for the Invoice (“Payment”) to Worker. By creating and sending the invoice, Worker represents and warrants that Worker has completed the applicable services fully and satisfactorily. Upon submission of the Invoice to Poster, Poster has five (5) business days to review and/or dispute Worker’s Invoice. At the end of the five-day period, if Poster has not disputed or otherwise delayed payment, Poster waives any right to dispute Worker’s Invoice, will be deemed to have approved all undisputed time, and Poster’s pre-authorized funds for the given Job will be released to Worker.
When a Poster makes the Payment to Worker, Worker acknowledges and agrees that Band Of Hands charges a 15% Service Fee on the Payment due to Worker, and then deducts a per hour fee of $1.05 to cover OAI and ICBA membership. The remainder of the Payment is released to Worker from the Third Party Settlement Organization. In making a Payment to Worker, Poster has the option of adding any costs or expenses that may be included in the Invoice Details as well as a tip for the Worker. Band Of Hands does not charge Service Fees or OAI/ICBA membership fees on any costs, expenses or tips added to the Amount. BAND OF HANDS ENCOURAGES ALL WORKERS AND POSTERS TO CAREFULLY REVIEW INVOICES, INCLUDING INVOICE DETAILS, BEFORE COMPLETING ANY TRANSACTION RELATED TO A JOB.
3.6 Invoice Disputes. If Poster reasonably disputes any Invoice, Poster agrees to promptly pay all undisputed amounts, and Poster and Worker will cooperate to verify any disputed amounts. Any Invoice amounts reasonably disputed by Poster will not be payable to a Worker until such dispute is resolved. Any obligation by Band Of Hands to pay any Payment is expressly conditioned upon: (a) Band Of Hands’ receipt of Payment from the applicable Poster, and (b) resolution of all outstanding disputes with respect to such Invoice and/or Payment. See Arbitration in Section 8 for more details.
3.7 Other Invoice Terms. At a Poster’s request, upon service fee payments to Band Of Hands by Third Party Settlement Organization, Poster is charged for services rendered by a Worker. Band Of Hands agrees not to pay a Worker for services until after the occurrence of a Poster’s acceptance of Invoice Details. You acknowledge and agree that such funds will belong to Band Of Hands immediately upon such funds being transferred to Band Of Hands by you. However, Band Of Hands agrees to refund such funds to a Poster in the event that a Worker acknowledges that services have not been completed, or if Poster and Worker have concluded the dispute of a Job with a result indicating that Poster is the rightful recipient of such funds.
3.8 Legal Relationship. Band Of Hands is not your agent with respect to any funds that have been transferred to Band Of Hands for any Payment. Each Worker must properly discharge and credit Posters for any Payments made to such Worker with regard to the services provided to such Posters. Band Of Hands acts as a facilitator to a Third Party Settlement Entity by creating, hosting, maintaining, and providing the Band Of Hands’ Billing and Payment Method to you via the Sites. Band Of Hands does not have any control over the services invoiced or paid for with the Band Of Hands’ Billing and Payment Method. Band Of Hands does not control or guarantee whether a Poster or Worker will actually complete the underlying transaction. Band Of Hands is not responsible in any way for the timeliness or accuracy of an Invoice, or the timeliness, accuracy, completion or workmanship of any work product produced by a Worker with respect to a Job. Nothing in this Agreement will be deemed to constitute Band Of Hands as your agent with respect to any service purchased and sold by Users through the Sites, or expand or modify any warranty, liability or indemnity stated in this Agreement. By using the Band Of Hands’ Billing and Payment Method, you expressly acknowledge that (a) Band Of Hands is not acting as a trustee or a fiduciary of Posters or Workers, and that the Band Of Hands’ Billing and Payment Method are provided to Users administratively; (b) the Sites are not any kind of “financial institution” as defined under the Bank Secrecy Act (BSA), and the Band Of Hands Billing and Payment Method are payment services rather than a banking services; and (c) the Sites are not any kind of bank and any payments transferred through Band Of Hands are not insured deposits and are subject to default, loss, or forfeiture.
3.9 Third Party Beneficiary Poster and Worker each acknowledge and agree that the value, reputation, and goodwill of the Sites depend on their performance of their covenants and agreements set forth in an agreed upon Job. Poster and Worker appoint Band Of Hands as a third party beneficiary of the Job for purpose of enforcing the obligations and benefits of the terms of this Agreement. Poster and Worker further acknowledge and agree that Band Of Hands has the right to take such actions with respect to a Job or their Accounts, including but not limited to suspension, termination, or any other legal actions as Band Of Hands in its sole discretion deems necessary to protect the value, reputation, and goodwill of the Sites.
4. RATINGS, REVIEWS, FEEDBACK AND CLASSIFICATIONS
4.1 Ratings and Reviews For the benefit of other Users of the Sites, Band Of Hands encourages objective balanced feedback about Users with whom you have transacted. You acknowledge and agree that feedback results for you will consist of comments, ratings, and other feedback left by other Users, as well as composite feedback based on individual ratings that Band Of Hands may make available to other Users. Band Of Hands provides its public a feedback system as a means through which Users can share their opinions publicly and Band Of Hands does not monitor or censor these opinions except as set forth below. Band Of Hands does not investigate any remarks posted by Users for accuracy or reliability, but may do so if a User requests that Band Of Hands do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your comments if such remarks are legally actionable or defamatory. Band Of Hands is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Band Of Hands reserves the right, but is under no obligation to remove posted feedback or information that in Band Of Hands’ sole judgment violates this Agreement or negatively affects the Band Of Hands community or operations.
4.2 Poster and Worker Classifications Band Of Hands provides a marketplace through which Users can find Contingent Work or Workers. Under this Agreement, Band Of Hands provides a technology platform that facilitates the connection of Users to Post Jobs and Find Work instantly. The Users agree to the terms of Independent Contractor classification for all jobs. The Users also agree that no joint venture, partnership, employment, or agency agreement exists between them as a result of this Agreement or any use of the Application.
4.3 Worker classification Users understand that the Band Of Hands platform is a marketplace to facilitate connections for those seeking Contingent Workers to available Workers. All Users agree that the classification of Workers on this platform are Independent Contractors and not Employees and therefore, acknowledge that there are no deductions in payments that may be required by law for employees such as federal and state taxes, unemployment and Social Security. By entering into this Agreement, all Users have independently determined that it will engage and classify Workers as Independent Contractors. Users acknowledge that Band Of Hands does not and will not, in any way, supervise, direct, or control any job, work or services performed in any manner. Band Of Hands does not set work hours, location of work, or get involved in determining the type or manner of compensation to be paid by the job Poster. Band Of Hands does not provide training or any equipment, labor or materials needed for work to be performed by Users. All Users understand that Workers have the sole discretion to apply and perform Work for any posted Job on the Band Of Hands platform at their free will. As Independent Contractors, the Worker is solely responsible for determining which posted jobs are accepted and how, when and where they will provide the Services under this Agreement. Band Of Hands will provide no supervision and will have no control over the manner in which you perform the Services. Further, the Worker is responsible to provide all equipment, tools, material and labor that may be necessary to perform the requested job they accept. All Workers acknowledge and understand that all accepted jobs are subject to the terms and conditions stated herein. Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) you from engaging in other business activities or providing services to others that are separate and distinct from any business activities or services that you conduct through the Band Of Hands sites.
5. USER SUBMISSIONS
5.1 Authorizations When you post any job information, data, or other content on the Sites, 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 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 content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such content and that Band Of Hands may exercise the rights to your content granted under this Agreement without any liability or obligation for any payment.
YOU RETAIN ALL OF YOUR OWNERSHIP RIGHTS IN ANY CONTENT YOU POST ON THE SITES. You grant to Band Of Hands and our successors and affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such content and your name, voice, and/or likeness as contained in your content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Sites and Band Of Hands’ (and our successors’ and affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Sites (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user a non-exclusive license to access your content through the Sites, and to use, reproduce, distribute, display, and perform such content, only to the extent permitted through the normal functionality of the Sites and subject to all applicable confidentiality and other provisions of the Agreement.
The licenses granted by you will terminate within a commercially reasonable time after you remove or delete your content from the Sites, except that you grant Band Of Hands 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 content that you have removed or deleted to the extent permitted by applicable law.
5.2 Third Party Content The Sites may provide certain information, content, applications and links from third parties, including other users of the Sites (“Third Party Content”). Such Third Party Content are owned and/or operated by third parties and/or their licensors. Your use of any such Third Party content or websites are governed by the terms and policies of those third parties. You are responsible for deciding if you choose to access any third party website or Third Party Content by clicking on a link or installing an application. Your use of any third party links or third party services is at your own risk and you should be aware the Band Of Hands’ terms and policies no longer govern. BAND OF HANDS DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO CONTENT PROVIDED BY THIRD PARTIES, INCLUDING ALL IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
5.3 Trademarks and Copyrights in the Services are the property of Band Of Hands or their respective owners. You may not remove or alter any Trademarks. You may not use any trademark displayed on the Sites or in the Services without the express prior written permission of Band Of Hands or the respective owner, and nothing contained on the Sites grants by implication, waiver, estoppel or otherwise, any right to use such Trademarks. All of the information and content provided on the Sites and in the Services, including but not limited to, text elements, Sites’ design, images and icons, as well as the selection, assembly and arrangement thereof, are the sole property of Band Of Hands, Copyright © 2015, unless otherwise specified. All rights not expressly granted herein are reserved. Except as otherwise required by applicable law, any reproduction, distribution, modification, retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. Our Intellectual Property Policy (“IP Policy”) is herein incorporated by reference, and a copy of this policy can be found at the following link: [LINK]. We strongly encourage you to review our IP Policy as it explains additional important information regarding intellectual property rights.
7. LIMITATIONS, INDEMNITY, WARRANTIES DISCLAIMERS
You agree to defend, hold harmless, and indemnify Band Of Hands, 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 Sites and/or Services, including but not limited to: (a) use of the Sites; (b) breach of any provision of this Agreement; (c) decision to submit a post(s) and accept offers from other Users of the Sites and/or Services; (d) 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; (e) any breach of contract or other claims made by Users with which you conducted business through the Sites; (f) any claim that a Worker was misclassified as an Independent Contractor; (g) any liabilities arising from a determination by a court, arbitrator, government agency, or other body that a Worker was misclassified as an employee (including, but not limited to, taxes, penalties, interest, and attorney’s fees); (h) any claim that Band Of Hands was an employer or joint employer of a Worker; (i) any claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation; or (j) any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. 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.
7.1 WARRANTY DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT THE SITES AND THE SERVICES ARE BEING PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, 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, AND MAY INCLUDE CERTAIN ERRORS, OMISSIONS, OUTDATED INFORMATION WHICH MAY AFFECT THE QUALITY OF CONTENT AND INFORMATION. YOU ACKNOWLEDGE THAT THE CONTENT AND INFORMATION HAVE NOT BEEN INDEPENDENTLY VERIFIED OR AUTHENTICATED IN WHOLE OR IN PART BY BAND OF HANDS, AND AGREE THAT BAND OF HANDS DOES NOT WARRANT THE ACCURACY OR TIMELINESS OF THE CONTENT AND INFORMATION AND FURTHER AGREE THAT BAND OF HANDS HAS NO LIABILITY FOR ANY ERRORS OR OMISSIONS IN THE MATERIALS, WHETHER PROVIDED BY BAND OF HANDS OR ITS LICENSORS.
BAND OF HANDS, FOR ITSELF AND EACH OF ITS LICENSORS, MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION OR CONTENT CONTAINED ON THE SITES AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY CONTENT. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES AND/OR THE SERVICES AND ANY CONTENT, INFORMATION OR OTHER MATERIAL CONTAINED ON THE SITES IS PROVIDED TO YOU ON AN “AS IS” AND “WHERE-IS” BASIS, AND IS FOR PERSONAL USE OR INTERNAL BUSINESS USE ONLY. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED.
BAND OF HANDS MAKES NO REPRESENTATION THAT THE CONTENT AND INFORMATION ON THE SITES CONFORM TO YOUR LOCAL LAWS, AND IF YOU ARE ACCESSING THE SITES FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ALONE ARE RESPONSIBLE FOR COMPLIANCE WITH YOUR LOCAL LAWS. THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES.
7.2 Other Disclaimers and Limitations We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information, or information about the entity that you represent, at your own risk. Band Of Hands 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: (a) your use of or your inability to use the Sites or Services; (b) delays or disruptions in the Sites or Services; (c) viruses or other malicious software obtained by accessing, or linking to, the Sites or Services; (d) glitches, bugs, errors, or inaccuracies of any kind in the Sites or Services; (e) damage to your hardware device from the use of the Sites or Services; (f) the content, actions, or inactions of third parties’ use of the Sites or Services; (g) a suspension or other action taken with respect to your account; (h) your reliance on the quality, accuracy, or reliability of postings, user profiles, recommendations, reviews and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Sites; or (i) your need to modify practices, content, or behavior or your loss of or inability to do business as a result of changes to the Agreement.
7.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL WE OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, 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. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL OUR LIABILITY TO YOU FOR ANY ACTION OR CLAIM RELATED TO THE SITES OR SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF: (A) $100 OR (B) THE AGGREGATE AMOUNT OF MONIES ACTUALLY COLLECTED BY US FROM YOU FOR THE SERVICES TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY, WHICHEVER IS LESS. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING EXCLUSIONS AND LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
7.4 General Release Band Of Hands is not a party to any Job or any other contract between you and another User. If you have a dispute with another registered User, you release Band Of Hands (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, whether it be at law or in equity, arising out of or in any way connected with such dispute or relating to any disputes regarding the performance, any injuries or damages, services, quality, relation, payments, refunds, or any other issue arising from the Job in question between you and another User.
7.5 STATE SPECIFIC RELEASE. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH STATES: “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.”
7.6 State Specific Legal Notice Band Of Hands, located at 9320 Chesapeake Drive Suite 101, San Diego, California 92123, is the provider of the electronic commercial service on the Sites. Users are notified, via the Sites, in advance regarding any applicable service charges. The Consumer Information Division of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, CA 95834 or by calling 1-800-952-5210. Upon your request, you may have this Agreement sent to you by email. Please contact Band Of Hands to resolve a complaint regarding any aspect of service relating to the Sites by writing to the attention of Customer Support at the above address or contact us through Customer Support at: (858) 284-3700.
7.7 Zero Tolerance Policy Band Of Hands does not tolerate the use of alcohol or drugs by anyone performing Pick Up and Delivery services, or any other service if impaired. If you believe that the Worker may be under the influence of drugs or alcohol, please end the Job immediately and notify Band Of Hands by contacting Help within the Sites. You can also get in contact by emailing email@example.com.
8. DISPUTES; ARBITRATION; WAIVER OF TRIAL BY JURY; CLASS WAIVER
Band Of Hands prefers to address your concerns without the need for formal legal action. Before you initiate any claim against Band Of Hands, you agree to try and resolve your dispute informally by contacting us at: firstname.lastname@example.org or (858) 284-3700. We will attempt to resolve your dispute within 30 days of receipt of your submission.
8.1 PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. In the unlikely event that Band Of Hands is unable to resolve your dispute within 30 days of receiving your submission, you and Band Of Hands agree that all disputes or claims that have arisen or may arise between you and Band Of Hands relating to or arising out of the Agreement and/or your use of the Sites and/or Services shall be resolved exclusively through final and binding arbitration under the American Arbitration Association’s (“AAA”) rules for arbitration of commercial and consumer-related disputes, and you and Band Of Hands expressly waive trial by jury. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If AAA is not available to arbitrate, the parties shall select an alternative dispute resolution provider. The AAA rules will govern payment of all arbitration fees. The arbitration may be conducted in person, through the submission of documents, by phone, or online. Except as otherwise provided here, arbitration will be conducted in San Diego County, California.
You also agree that all claims and disputes must be arbitrated or litigated on an individual basis and not on a class or other collective action basis, and claims of more than one user cannot be arbitrated or litigated jointly or consolidated with those of any other user. Accordingly, there will be no right or authority for any dispute to be brought, heard or arbitrated as a class or other collective action. This class and collective action waiver shall not be severable from this Agreement in any case in which the dispute is filed as such a class or collective action and a civil court of competent jurisdiction finds that this waiver is unenforceable. In such instance, the class or collective action must be litigated in a civil court of competent jurisdiction. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement. This arbitration provision will survive the termination of your relationship with Band Of Hands.
8.2 Mandatory Binding Individual Arbitration and Class Action Waiver (“Arbitration Agreement”). The Company and Contractor mutually agree to resolve any justifiable disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and, except as otherwise provided in this Arbitration Agreement, shall apply to any and all claims arising out of or relating to this Contract, the Contractor’s classification as an Independent Contractor, Contractor’s provision of services to Job Posters on the sites, the payments received by Contractor, the Company or its Customers, the termination of this Contract, and all other aspects of the Contractor’s relationship with the Sites, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to Contractor’s relationship or the termination of that relationship with the Sites. The agreement by Contractor and the Sites to mutually arbitrate disputes provides consideration for this Arbitration Agreement. This Arbitration Agreement applies to claims and disputes that the Sites may have against Contractor and/or that Contractor may have against the Sites, and (1) its affiliates and partners (2) its officers, directors, employees, or agents in their capacity as such or otherwise, and/or (3) all successors and assigns of any of them; any and all of which may enforce this Arbitration Agreement.
The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or alleged waiver of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. However, as stated in the “Class Action Waiver” below, the preceding sentence shall not apply to the clause entitled “Class Action Waiver.”
This Arbitration Agreement does not apply to any claim that may not be arbitrated as provided by an Act of Congress. This Arbitration Agreement also does not apply to Private Attorney General Action claims under California law, which may only be brought in a court of law—not in arbitration.
8.2.(a) If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by Contractor must be delivered to email@example.com.
8.2.(b) Class Action Waiver. The Sites and Independent Contractor mutually agree that by entering into this Arbitration Agreement, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”). Notwithstanding any other clause contained in this Arbitration Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective 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 shall be enforced in arbitration.
8.2(c) Contractor agrees and acknowledges that entering into this Arbitration Agreement does not change Contractor’s status as an Independent Contractor in fact and in law, that Contractor is not an employee of the Sites or the Sites Job Posters and that any disputes in this regard shall be subject to arbitration as provided in this Arbitration Agreement.
8.2(d) Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), except as follows:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.
(2) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in the county in which Contractor performed his contractual duties obtained from the Sites.
(3) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that the Sites shall pay all of the Arbitrator’s fees and costs.
(4) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(5) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(6) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(7) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
(8) Either the Sites or Contractor may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual; provided, however, that all determinations of final relief shall be decided in arbitration, and pursuing the temporary or preliminary injunctive relief shall not constitute a waiver of rights under this agreement to arbitrate.
8.2(e) Regardless of any other terms of this arbitration agreement, claims may be brought before and remedies awarded by an administrative agency (such as the National Labor Relations Board, Occupational Safety and Health Administration, Equal Employment Opportunity Commission, or U.S. Department of Labor) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act.
8.2(f) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. Except In addition to as stated with regard to the Class Action Waiver, above, in the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. The Arbitration Agreement is a contractual agreement to mutually arbitrate claims; therefore any statements in any Company handbooks or policies that otherwise disclaim contracts do not apply to this Arbitration Agreement.
8.3 Modifications to Application Band Of Hands reserves the right at any time to modify or discontinue, temporarily or permanently, the Application or the Service (or any part thereof) with or without notice. However, as stated earlier, the Arbitration Agreement will survive any termination or expiration of this Agreement and/or any modification or termination of the Application or the Service. You agree that Band Of Hands shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Application or the Services.
9. GENERAL PROVISIONS
9.1 Choice of Law. You agree unconditionally and mandatorily to the exclusive venue and jurisdiction for any dispute arising under the Agreement in the state or federal courts of San Diego County, California. This Agreement shall be deemed to have been executed and delivered within the State of California, and the rights and obligations hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California.
9.2 Compliance with Law. You are responsible for compliance with applicable U.S. state, U.S. federal, foreign or international laws, regulation and treaties, keeping in mind that access to the contents of the Sites may not be legal for or by certain persons or in certain countries.
9.3 Modification and Waiver. Band Of Hands 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. No delay or omission by Band Of Hands in exercising its rights or remedies will impair its 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.
9.4 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision shall be given its nearest legal meaning, or be construed as deleted, as such authority determines, and the remaining provisions shall remain in full force and effect.
9.5 Assignment or Transfer You will not transfer, assign or delegate your rights or obligations (including your Account) under this Agreement to anyone without the express written permission of Band Of Hands, and any attempt to do so will be null and void. Band Of Hands may assign this Agreement in its sole discretion.
9.6 Force Majeure Except for the payment of fees to Band Of Hands, neither of the parties to this Agreement shall 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 shall be extended by the period of such delay.
9.7 Notices Band Of Hands may give notice by means of a general notice on the Services, electronic mail to your email address in your account, or by written communication sent by first class mail or pre-paid post to your address in your account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Band Of Hands, with such notice deemed given when received by Band Of Hands, at any time by first class mail or pre-paid post to Band Of Hands, Inc., 9320 Chesapeake Drive Suite 101, San Diego, CA 92123.
9.8 Headings and Labels Captions and/or headings contained herein are for convenience only and are not meant to limit the terms contained herein.
9.9 Integration This Agreement and all documents referenced in this Agreement (including the policies listed and available by hyperlink) comprise the entire agreement between you and Band Of Hands with respect to the use of the Sites and Services and supersedes all prior agreements between the parties regarding the subject matter contained herein as well as any conflicting or inconsistent terms in any website that links to or are linked from the Sites.
We encourage you to read the following policies as they form a part of this Agreement: