Last updated: February 20, 2021
These Terms of Service constitute a legally binding agreement between you and Askaloo Inc. (“Company” or “Askaloo”) governing your use of the Askaloo Platform (as defined below), Company’s website (https://www.askaloo.com or the “Site”) and mobile applications (the “Apps”). The Askaloo Platform and related services provided by Company, the Site, and Apps, including without limitation communications and information (whether in writing, orally, or otherwise howsoever) provided by Company to potential and actual Creators and Users (both as defined at Section 1) in relation to the services, together are hereinafter collectively referred to as the “Askaloo Platform.”
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND ASKALOO CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 19 OR 20, AS APPLICABLE). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 19 OR 20, AS APPLICABLE) AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE ASKALOO PLATFORM.
A few highlights of these Terms of Service include:
A few highlights of these Terms of Service include:
Your agreement that the Askaloo Platform is provided “as is” and without warranty (Section 17).
Your agreement that Company has no liability regarding the Askaloo Platform or the performance of activities (as defined below at Section 1) (Section 17).
Your acknowledgment and agreement that Users, and not Askaloo, scope, supervise, direct, control, and monitor a Creator’s work and the activities (Section 1).
Your acknowledgement and agreement that Users are solely responsible for determining if the Creator they hire is qualified to perform the activity at hand.
Your acknowledgement and agreement that Creators are independent contractors of Users and not employees, independent contractors or service providers of Askaloo (Sections 1 and 12)
Your consent to release Company from liability based on claims between Users (Section 2), in respect of Creator claims (Section 12) and generally (Section 17).
Your agreement to indemnify Company from claims due to your use or inability to use the Askaloo Platform or content submitted from your account to the Askaloo Platform (Section 18).
Your consent to submit any claims against Company to binding arbitration, and on an individual basis only, to the extent permissible by law (Section 19).
The Askaloo Platform Connects Creators and Users
The Askaloo Platform is a web-based communications platform which enables connections between Users and Creators. “Users” are individuals who seeking short-term activities services (“activity”) from Creators, and “Creators” are individuals/ businesses seeking to offer activities for Users. Users and Creators together are hereinafter referred to as “Users.” If you agree on the terms of an activities with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
CREATORS ARE INDEPENDENT CONTRACTORS OF USERS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF COMPANY. COMPANY DOES NOT PERFORM ACTIVITIES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM ACTIVITIES. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A CREATOR’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE ACTIVITIES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
The Askaloo Platform only enables connections between Users for the fulfilment of activities. Company is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of activities, Creators, Users, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings provided by Users with respect to each other. Company makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the activities requested or services provided by, or the communications of or between, Users identified through the Askaloo Platform, whether in public, private, or offline interactions or otherwise howsoever.
2. User Vetting and User Representations and Warranties
In Company’s sole discretion, Users may be subject to an extensive vetting process before they can register for and during their use of the Askaloo Platform, including but not limited to a verification of identity, using third party services as appropriate (“Identity Checks”). Although Company may perform Identity Checks, Company is not required to do so and cannot confirm that each User is who they claim to be. Company cannot and does not assume any responsibility for the accuracy or reliability of Identity Check information or any information provided through the Askaloo Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Askaloo will not be liable for any false or misleading statements made by Users of the Askaloo Platform. NEITHER ASKALOO NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “ASKALOO AND AFFILIATES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE ASKALOO PLATFORM AND YOU HEREBY RELEASE ASKALOO AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE ASKALOO PLATFORM.
User Representations and Warranties
You are at least of the legally required age in the jurisdiction in which you reside and you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You hereby warrant and represent that, other than as fully and promptly disclosed to Company as set forth below, you do not have any motivation, status, or interest which Company may reasonably wish to know about in connection with the Askaloo Platform, including without limitation, if you are using or will or intend to use the Askaloo Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Company in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Askaloo Platform.
Creators additionally represent and warrant that you will provide timely, high-quality services to your Users, you will only offer and provide services for which you have the necessary skills and expertise, and you will provide the services safely and in accordance with all applicable laws, and that you have the legal right to work in the country in which you are performing activities.
3. Contract between Users and Creators
You acknowledge and agree that a legally binding contract (the “Service Agreement”) is formed when you agree on the terms of a activity with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the Askaloo Platform, and any other contractual terms accepted by both the Creators and their User to the extent such terms do not conflict with the terms in this Agreement, including this Section 3, and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Creator (or Assistants (as defined below)), nor will it create an employment relationship between the User and the Creators (or Assistants (as defined below)). Company’s role is restricted solely to acting as a limited payment collection agent for the Creators to facilitate payment on behalf of the Creator through the Askaloo Platform using the PSP in respect of activities they perform. In acting as the limited payment collection agent for particular activities on the Askaloo Platform, Askaloo disclaims any other agency or authority to act on behalf of the Creators, and assumes no liability or responsibility for any acts or omissions of the Creators, either within or outside of the Askaloo Platform.
Where approved in advance by the User, the Creator is not obligated to personally perform the ACTIVITY. Before any activity services are performed by any assistants, helpers, subcontractors or other personnel engaged by the Creators (collectively “Assistants”), the Creator shall require any such individuals to become fully registered, oriented and verified Creators on the Askaloo Platform. A Creator’s failure to comply with this provision by bringing an Assistant who is not a registered Creator could lead to removal from the Askaloo Platform. The Creator assumes full and sole responsibility for the acts and omissions of such Assistants, including without limitation the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable income tax withholdings as to the Creators and all persons engaged by the Creators in the performance of the acitivty services.
While using the Askaloo Platform, Users, in their sole discretion, determine whether they will be present or not when a activity is performed and/or completed. Users who elect not to be present when a activity is performed and/or completed agree that if someone other than them (i.e. spouse, roommate, friend, etcetera) is present when the activity is performed, they are appointing that person as their agent (“User’s Agent”) and the Creator may take and follow direction from the User’s Agent as if such direction was given from the User him or herself.
The User shall pay their Creator directly for completed activity services through the PSP as indicated on the Askaloo Platform at the rates agreed to by the parties in the Service Agreement. Each User agrees to comply with the Service Agreement and this Agreement during the engagement, performance and completion of a activity. Both Users agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding. Askaloo reserves the right to suspend or terminate any account or activity pending the resolution of any dispute.
4. Billing and Payment
Users of the Askaloo Platform contract for activities directly with other Users. Company will not be a party to any contracts for activities or services. Payment for activity services through the Askaloo Platform is made directly from the User to the Creator via the PSP, and not by Company. Company is not obligated to pay Creator for User’s failure to pay for services.
Users of the Askaloo Platform will be required to provide their payment method details to Company and the PSP. Users will have the option to tip for any activity done by Creators. The Company will charge a service fee from the total amount sent from User to Creator, and the fee may vary based on the tip amount. The fee (sometimes referred to as Trust & Support Fee) will cover the cost for running the the Askaloo Platform. This may include cost of providing Users with customer support, providing the Happiness Pledge set forth in Section 13, and other various business objectives, and cancellation fees, if applicable.
Creators may be required to register with the PSP, agree to terms of service of the PSP, and go through a vetting process at the request of the PSP to set up their account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, each Creator agrees that they have downloaded or printed, and reviewed and agreed to, the PSP Services Agreement. Please note that Askaloo is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that Askaloo has no obligations, responsibility or liability to any Creator or other party under the PSP Services Agreement.
To help prevent fraud and safeguard User information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a temporary charge may be placed on the account associated with the User and then refunded within 1-3 business days.
Company reserves the right (but not the obligation), in its sole discretion, upon request from User or Creator, or upon notice of any potential fraud, unauthorized charges or other misuse of the Askaloo Platform, to (i) place on hold any activity Payment, tip or gratuity (if applicable) or (ii) refund or provide credits, or arrange for the PSP to do so.
Activity Payment and fees must be paid through the PSP as indicated on the Askaloo Platform.
Users of the Askaloo Platform will be liable for any taxes required to be paid on the activity provided under the Agreement.
5. Public Areas; Acceptable Use
The Askaloo Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Askaloo Platform, you should not share your personal contact information with other Users.
Without limitation, while using the Askaloo Platform, you may not:
Defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and Askaloo staff, or use information learned from the Askaloo Platform or during the performance of activities to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other User or Company staff;
Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Askaloo Platform;
Use the Askaloo Platform for any unauthorized purpose, including, but not limited to posting or completing a activity in violation of local, state, provincial, national, or international law;
Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or Company;
Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer;
Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly;
Advertise or offer to sell any goods or services for any commercial purpose through the Askaloo Platform which are not relevant to the activity services offered through the Askaloo Platform;
Conduct or forward surveys, contests, pyramid schemes, or chain letters;
Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments;
Post the same activity repeatedly (“Spamming”) – Spamming is strictly prohibited;
Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Askaloo Platform;
Restrict or inhibit any other User from using and enjoying the Public Areas;
Imply or state that any statements you make are endorsed by Askaloo, without the prior written consent of Askaloo;
Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the Askaloo Platform, or the electronic addresses or personal information of others, in any manner;
Frame or utilize framing techniques to enclose the Askaloo Platform or any portion thereof;
Hack or interfere with the Askaloo Platform, its servers or any connected networks;
Adapt, alter, license, sublicense or translate the Askaloo Platform for your own personal or commercial use;
Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Askaloo and Affiliates;
Upload content to the Askaloo Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
Use the Askaloo Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Askaloo Platform as set forth herein;
Use the Askaloo Platform to collect usernames, email addresses, or other personal information of Users by electronic or other means;
Use the Askaloo Platform or the activity services in violation of this Agreement;
Use the Askaloo Platform in a manner that is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes;
Attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the Askaloo Platform, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number; or
Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. Askaloo will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
6. Mobile App Updates and Upgrades
7. Termination and Suspension
Company may terminate or limit your right to use the Askaloo Platform in the event that we are investigating or believe that you have breached any provision of this Agreement (a “User Breach”), by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice.
If Company terminates or limits your right to use the Askaloo Platform pursuant to this Section 8, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. If Company terminates or limits your right to use the Askaloo Platform as a User due to a User Breach, you will not be entitled to any refund of unused balance in your account.
Even after your right to use the Askaloo Platform is terminated or limited, this Agreement will remain enforceable against you. Company reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 19 of these Terms of Service.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Askaloo Platform at its sole discretion. Company is not liable to you for any modification or discontinuance of all or any portion of the Askaloo Platform. Company has the right to restrict anyone from completing registration as a activities if Company believes such person may threaten the safety and integrity of the Askaloo Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Askaloo Platform. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
8. Account, Password, Security, and Mobile Phone Use
You must register with and create an account to use the Askaloo Platform (an “Account”). You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in and password for accessing the Askaloo Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. If you are accessing and using the Askaloo Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms provided herein. Company has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to contact Company immediately.
By providing your e-mail and using the Askaloo Platform, you hereby affirmatively consent to Askaloo’s use of your e-mail for sending out messages to provide you with information and reminders regarding your registration, orientation, upcoming activities, product alterations, changes and updates, service outages or alterations. These messages may include, among other things, reminders about uncompleted or upcoming activities and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for messages sent to your e-mail. You may opt-out of receiving e-mails from us by modifying your account settings on the Site or App. You understand that we may send you an e-mail confirming any opt-out by you.
9. User Generated Content
“User Generated Content” is defined as any information and materials you provide to Company, its corporate partners, or other Users in connection with your registration for and use of the Askaloo Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Askaloo is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that Askaloo has no obligation to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Askaloo Platform at its sole discretion.
You hereby represent and warrant to Company that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not represent you being employed or directly engaged by or affiliated with Askaloo or purport you to act as a representative or agent of Askaloo; and (i) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The Askaloo Platform hosts User Generated Content relating to reviews and ratings of specific Creators (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each User should undertake their own research to be satisfied that a specific Creators is the right person for an activity. You agree that Company is not responsible or liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company is not obligated to investigate any remarks posted by Users for accuracy or reliability but may do so at its discretion.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights you have in your User Generated Content, in any media now known or not currently known in order to perform and improve upon the Askaloo Platform.
Each Creator who provides to Company any videotape, film, recording, photograph, voice, or all related instrumental, musical, or other sound effects (collectively, “Media”), in exchange for the right to use the Askaloo Platform, hereby waives any and all moral rights in connection with such Media and irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
Exhibit, distribute, display, transmit, and broadcast on any and all media, including, without limitation, the internet, any videotape, film, recording or photograph that such User provides to Company or that Company takes of Creator, and use, reproduce, modify, or creative derivatives of such Creator picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”);
Reproduce in all media any recordings of such Creator’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Askaloo Platform;
Use, and permit to be used, such Creator’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Askaloo Platform in any media; and
Use, and permit to be used, such Creator’s name and identity in connection with the Askaloo Platform.
Each Creator warrants and represents that they have the lawful authority to grant the rights set out above.
Each Creator hereby waives all rights and releases Askaloo and Affiliates from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Creator’s identity, likeness or voice in connection with the Askaloo Platform.
Each Creator acknowledges that Askaloo shall not owe any financial or other remuneration for using the recordings provided hereunder by such Creator, either for initial or subsequent transmission or playback, and further acknowledges that Askaloo is not responsible for any expense or liability incurred as a result of such Creator’s recordings or participation in any recordings, including any loss of such recording data.
10. Links to Third-Party Websites
The Askaloo Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Company or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Askaloo Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Company does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Askaloo is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Askaloo has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Askaloo Platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Askaloo expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Askaloo Platform. You hereby agree to hold Askaloo harmless from any liability that may result from the use of links that may appear on the Askaloo Platform.
As part of the functionality of the Askaloo Platform, you may link your account with online accounts you may have with third party service providers (such as Stripe) (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Askaloo Platform; or (ii) allowing Askaloo to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Askaloo and/or grant Askaloo access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Askaloo to pay any fees or making Askaloo subject to any usage limitations imposed by such third-party service providers. By granting Askaloo access to any Third-Party Accounts, you understand that (i) Askaloo may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the Askaloo Platform via your account, including without limitation any friend lists, and (ii) Askaloo may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on the Askaloo Platform. Please note that if a Third-Party Account or associated service becomes unavailable or Askaloo’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Askaloo Platform. You will have the ability to disable the connection between your account on the Askaloo Platform and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Company is not responsible for any SNS Content.
11. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, ASKALOO DOES NOT PERFORM ACTIVITES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM AN ACTIVITY. EACH USER ASSUMES ALL LIABILITY FOR PROPER CLASSIFICATION OF SUCH USER’S WORKERS BASED ON APPLICABLE LEGAL GUIDELINES. IF A USER, YOU INDEMNIFY AND HOLD ASKALOO AND AFFILIATES HARMLESS, AND IF A CREATOR, YOU FULLY AND FINALLY RELEASE ASKALOO AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, LOSSES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES THAT CREATORS OR ASSISTANTS MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, COMMON LAW, CIVIL LAW, STATUTE OR OTHERWISE, IN RESPECT OF ACTIVITYS OR SERVICE AGREEMENTS OR THE USE OF THE ASKALOO PLATFORM, INCLUDING WITH RESPECT TO MISCLASSIFICATION OF CREATORS AND ASSISTANTS AND THE TERMINATION OR CESSATION OF ANY ACTIVITYS, SERVICE AGREEMENTS, THIS AGREEMENT OR THE USE OF THE ASKALOO PLATFORM.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges and agrees that Askaloo does not, in any way, supervise, scope, direct, control or monitor a Creator’s work or activities performed in any manner. Company does not set a Creator’s work hours or location of work. Askaloo will not provide any equipment, tools, labor or materials needed for a particular activity. Askaloo does not provide any supervision to Users.
The Askaloo Platform is not an employment agency service or business and Askaloo is not an employer of any User. As such, Askaloo is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal, provincial or state withholdings in connection with a User’s use of the Askaloo Platform. Creators acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Agreements and performing activites and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
This Section 12 in no way limits the generality of Section 17.
12. Askaloo Happiness Pledge
The Askaloo Happiness Pledge is part of this Agreement and incorporated by reference. Askaloo wants Users to be happy about their experience using the Askaloo Platform and the Happiness Pledge is in place to encourage continued use of the Askaloo Platform.
13. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Askaloo Platform is owned by Askaloo, excluding User Generated Content, which Users hereby grant Askaloo a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Askaloo owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Askaloo Platform without Askaloo’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Askaloo and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Askaloo, including without limitation Askaloo and Askaloo logos, are service marks owned by Askaloo. Any other trademarks, service marks, logos and/or trade names appearing via the Askaloo Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
14. Copyright Complaints and Copyright Agent
Askaloo respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Askaloo Platform infringe upon your copyright or other intellectual property right, please send the following information to Askaloo’s Copyright Agent at: Askaloo, Inc., Postboks 22, 1375 Billingstad, Norway or email@example.com:
A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Askaloo Platform where the material you claim is infringed is located. Include enough information to allow Askaloo to locate the material, and explain why you think an infringement has taken place;
A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
Your address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
15. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Askaloo and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Askaloo Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify Askaloo in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Askaloo upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Askaloo’s trade secrets, confidential and proprietary information, and all other information and data of Askaloo that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Askaloo or Askaloo’s business, operations or properties, including information about Askaloo’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
16. Disclaimer of Warranties
(a) Use Of The Askaloo Platform Is Entirely At Your Own Risk
THE ASKALOO PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ASKALOO MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE ASKALOO PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE ASKALOO PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE ASKALOO PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
Askaloo does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the Askaloo Platform or any hyperlinked website or featured in any banner or other advertising, and Askaloo will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, Askaloo and Affiliates do not warrant that access to the Askaloo Platform will be uninterrupted or that the Askaloo Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Askaloo Platform, or as to the timeliness, accuracy, reliability, completeness or content of any activity, service, information or materials provided through or in connection with the use of the Askaloo Platform. Askaloo and Affiliates are not responsible for the conduct, whether online or offline, of any User. Askaloo and Affiliates do not warrant that the Askaloo Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Askaloo and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
Notwithstanding any feature a User may use to expedite Askaloo selection, each User is responsible for determining the activity and selecting their Creator and Askaloo does not warrant any goods or services purchased by a User and does not recommend any particular Creator. Askaloo does not provide any warranties or guarantees regarding any Creators’s professional accreditation, registration or license.
In addition, no individual or entity shall be a third party beneficiary of these terms. These terms are solely for the benefit of the parties to this Agreement and are not intended to and shall not be construed to give any person or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other rights (including, without limitation, any third party beneficiary rights), with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
(b) No Liability
You acknowledge and agree that Askaloo is only willing to provide the Askaloo Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Askaloo and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the Askaloo Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by Askaloo and Affiliates and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL ASKALOO AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY ASKALOO, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE ASKALOO PLATFORM OR THE ACTIVITY SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
ASKLOO AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS ASKALOO PLATFORM. ASKALOO AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE ASKALOO PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT ASKALOO AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Some jurisdictions do not allow the exclusion of certain warranties or limitation of liability for consequential or incidental damages, so certain aspects of the limitations above may not apply to you.
THE ASKALOO PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. BECAUSE ASKALOO IS NOT A PARTY TO OR OTHERWISE INVOLVED IN THE ACTUAL CONTRACT BETWEEN USERS OR IN THE COMPLETION OF THE ACTIVITY, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU HEREBY RELEASE ASKALOO AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL, OR EXEMPLARY), EXPENSES, LOSSES, GOVERNMENTAL OBLIGATIONS, SUITS AND/OR CONTROVERSIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH READS AS FOLLOWS: “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.”
You hereby agree to indemnify, defend, and hold harmless Askaloo and Affiliates, and their attorneys, insurers, independent contractors, providers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the Askaloo Platform or perform an activity, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your account to the Askaloo Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Askaloo reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Askaloo.
18. Dispute Resolution – Arbitration & Class Action Waiver (U.S. Users)
USERS RESIDING IN THE UNITED STATES: PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND ASKALOO CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND ASKALOO TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
SECTION 19 DOES NOT APPLY TO USERS RESIDING IN CANADA, AND USERS RESIDING IN CANADA AND ASKALOO AGREE THAT SECTION 20 SHALL APPLY INSTEAD.
(a) Informal Negotiations
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Askaloo (each a “Claim” and collectively “Claims”), you and Askaloo agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration. This pre-arbitration negotiation shall be initiated by providing written notice to the other party—including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to Askaloo, Inc., Postboks 22, 1375 Billingstad Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Askaloo may initiate arbitration while engaging in the informal negotiations.
During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
After a good faith effort to negotiate, if you or Askaloo believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”).
(b) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND ASKALOO MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate contained in this Section 19 (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of this Agreement and your relationship with Company.
Claims covered by this Arbitration Agreement include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof); the Askaloo Platform, services, or activities; your relationship with Askaloo; the threatened or actual suspension, deactivation or termination of your Account or this Agreement; payments made by you or any payments made or allegedly owed to you; any city, county, state or federal wage-hour law; compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress; any promotions or offers made by Company; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters; and all other federal and state statutory and common law claims.
If there is a dispute about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of this arbitration agreement), you and Askaloo agree that this threshold dispute shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disputes, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND ASKALOO ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY THE TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and Askaloo agree that any arbitration will be limited to the Claim between Askaloo and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND ASKALOO ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and Askaloo otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Company, which are addressed separately in Section 19(d) below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity 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: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, to the fullest extent allowed by law: (1) you and Askaloo agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Company agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. You and Askaloo agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Company initiates arbitration under this Arbitration Agreement, Company will pay all AAA filing and arbitration fees.
(ii) If a User or Creators files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD $10,000, Company will pay all AAA filing and arbitration fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(iii) If a User or Creator files a Claim in accordance with this Arbitration Agreement and the associated claim for damages exceeds USD $10,000, Company shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses, and the User or Creator shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which they perform an activity, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose, however, then the allocation of fees will be governed by the applicable AAA Rules.
(iv) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(v) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Company agree otherwise, any arbitration hearings between Company and a Creator will take place in the county of your billing address, and any arbitration hearings between Company and a User will take place in the county in which you received activity services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims may be, but are not required to be, arbitrated under the Arbitration Agreement:
Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
Applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 19(d) is deemed unenforceable by a court of competent jurisdiction; and
Claims that may not be subject to arbitration as a matter of general law not preempted by the Federal Arbitration Act.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However, you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
Except as otherwise provided in the severability provisions in Sections 19(c) and 19(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
If you are a Creator, you may opt out of the Arbitration Agreement by notifying Company in writing within thirty (30) days of your agreement to these Terms of Service. To opt out, you must send a written notification to Company at Askaloo, Inc., Postboks 22, 1375 Billingstad, 94107 Attention: Legal, that includes (a) your account 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 the above arbitration and class action/jury trial waiver provisions.
19. Dispute Resolution – Arbitration & Class Action Waiver (Canadian Users)
USERS RESIDING IN CANADA: PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND ASKALOO CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU AND ASKALOO TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
SECTION 20 DOES NOT APPLY TO USERS RESIDING IN THE UNITED STATES, AND USERS RESIDING IN THE UNITED STATES AND ASKALOO AGREE THAT SECTION 19 SHALL APPLY INSTEAD.
The validity, interpretation, construction, and performance of these Terms shall be governed by the laws of the province or territory in which you reside.
Except where prohibited by law, any controversy, claim or dispute arising out of, relating to, or in respect of these Terms, including their negotiation, validity, existence, breach, termination, construction or application, or the rights, duties or obligations of any party, or the rights, duties or obligations of any party derived from or associated with these Terms (a “Dispute”), shall be referred to and determined by a single arbitrator in a final and binding arbitration administered under the rules of ADR Institute of Canada, Inc.’s Arbitration Rules. If the parties have not agreed upon an arbitrator within 14 days, unless otherwise agreed by the parties in writing, the parties shall ask the ADR Institute of Canada, Inc. to appoint a single arbitrator. For greater certainty, neither Creators nor Users shall commence or participate in a class proceeding or other aggregate action in respect of any Dispute, except and to the extent that provincial consumer protection legislation expressly preserves such an entitlement in the context of the particular Dispute.
The seat of the arbitration shall be the same as the provincial or territorial law governing these Terms. The arbitration shall be heard in the capital of the seat, unless the parties agree otherwise. The costs and expenses of the arbitrator shall be shared equally between the parties. A party to the arbitration has no right of appeal from any award of the Arbitrator, whether characterized as final, interim, interlocutory or partial.
All Disputes referred to arbitration (including the scope of the agreement to arbitrate, the law relating to the enforcement of the agreement to arbitrate, any relevant limitation periods, the law governing the procedure of the arbitration, the law relating to available remedies, set-off claims and conflict of laws rules) shall be governed by the law of the seat. Each party hereby irrevocably consents to venue in the capital of the seat, and to the jurisdiction of competent courts in the capital of the seat for all litigation that may be brought, however it is agreed and acknowledged that the intention of the parties is to arbitrate the Dispute without recourse to the courts.
A party to these Terms may take such steps as are permitted or required to enforce an award made by an Arbitrator. Except as required by law, and only to the extent that such disclosure is reasonably necessary, or for the purposes of obtaining professional advice, the existence of the arbitration and any element of the arbitration, including any award, shall be confidential and shall not be disclosed to any non-party to the arbitration. No document or other evidence or information prepared for or produced by or on behalf of any party to the arbitration shall be disclosed to any non-party to the arbitration.
20. Governing Law
USERS RESIDING IN THE UNITED STATES: Except as provided in Section 19 or expressly provided otherwise, this Agreement and your use of the Askaloo Platform will be governed by, and will be construed under, the laws of the Norway, without regard to choice of law principles. This choice of law provision is only intended to specify the use of Norway law to interpret this Agreement and is not intended to create any substantive right to non-norwegians to assert claims under Norway law whether by statute, common law, or otherwise.
USERS RESIDING IN CANADA: Except as provided in Section 20 or expressly provided otherwise, this Agreement and your use of the Askaloo Platform will be governed by, and will be construed under, the laws of the Province of Ontario, without regard to choice of law principles. This choice of law provision is only intended to specify the use of Ontario law to interpret this Agreement and is not intended to create any substantive right to non-residents of Ontario to assert claims under Ontario law whether by statute, common law, or otherwise.
21. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
22. General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Company with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” in Section 19, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 23 shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
Creators alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking activities. Indeed, certain types of activities and services may be prohibited altogether, and it is the responsibility of Creators to avoid such prohibited activites and services. Penalties may include fines or other enforcement. If you have questions about how local laws apply to your activities and services on the platform, you can and should first seek separate legal guidance.
Because Askaloo does not oversee, monitor or supervise the posting, scoping or performance of Activity, Users must determine for themselves whether a Creator is qualified to perform the specific activity at hand. Users may wish to consult their state/provincial/territorial or local requirements to determine whether certain activities are required to be performed by a licensed professional.
24. Changes to this Agreement and the Askaloo Platform
25. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
26. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the Askaloo Platform, please contact us by email at https://www.askaloo.com/support or by mail to Postboks 22, 1375 Billingstad, NORWAY.