Tech Terms and Conditions
SOFTWARE LICENSE AND ONLINE SERVICES AGREEMENT
As of August 22, 2016
This Software License and Online Services Agreement (“Agreement”) constitutes a legal agreement between you, an individual (“you”) and ITX, LLC (“Company”).
Company, provides lead generation to independent providers of peer-‐to-‐peer (collectively, “P2P”) tech support services using the TekMe Services (as defined below). The TekMe Services enable an authorized tech support provider to seek, receive and fulfill requests for tech support services from an authorized user of TekMe’s mobile applications. You desire to enter into this Agreement for the purpose of accessing and using the TekMe Services.
You acknowledge and agree that Company is a technology services provider that does not provide
tech support services.
In order to use the TekMe Services, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Company shall be bound by the terms and conditions set forth herein.
IMPORTANT: PLEASE NOTE THAT TO USE THE TEKME SERVICES, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT
OUT OF THE ARBITRATION PROVISION. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF
THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW.
1.1 “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest or the majority of the voting rights of such entity.
1.2 “City Addendum” means an addendum to this Agreement setting forth additional Territory-‐
specific terms, as updated by TekMe from time to time.
1.3 “Company Data” means all data related to the access and use of the TekMe Services hereunder, including all data related to Users (including User Information), all data related to the provision of Tech Support Services via the TekMe Services and the Tech App, and the Tech ID.
1.4 “Company Device” means a mobile device owned or controlled by Company that is provided to you solely for your use of the Tech App to provide Tech Support Services.
1.5 “Device” means a Company Device or Your Device, as the case may be.
1.6 “Tech App” means the mobile application provided by Company that enables Tech Support providers to access the TekMe Services for the purpose of seeking, receiving and fulfilling on-‐ demand requests for Tech Support services by Users, as may be updated or modified from time to time.
1.7 “Tech ID” means the identification and password key assigned by Company to you that enables you to use and access the Tech App.
1.8 “Fee” has the meaning set forth in Section 4.1.
1.9 “Service Fee” has the meaning set forth in Section 4.4.
1.10 “Territory” means the city or metro areas in the United States in which you are enabled by the
Tech App to provide Tech Support Services.
1.12 “Tech Support Services” means your provision of P2P customer Tech Support services to
Users via the TekMe Services in the Territory using the Vehicle.
1.13 “TekMe Services” mean TekMe’s on-‐demand lead generation and related services that enable Tech Support providers to seek, receive and fulfill on-‐demand requests for Tech Support services by Users seeking Tech Support services, which services include TekMe’s software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified from time to time.
1.14 “User” means an end user authorized by TekMe to use the TekMe mobile or web applications for the purpose of obtaining Tech Support Services offered by Company’s Tech Support provider customers.
1.15 “User Information” means information about a User made available to you in connection with such User’s request for and use of Tech Support Services, which may include the User’s name, service location, contact information, photo and other information.
1.16 “Vehicle” means your vehicle that: (a) meets the then-‐current Company requirements for a vehicle for use in delivering TekMe Services; and (b) Company authorizes for your use for the purpose of providing Tech Support Services.
current Company specifications for mobile devices as set forth at TekMe.com
and (b) on which the App has been installed as authorized by Company solely for the purpose of providing Tech Support Services.
2. Use of the TekMe Services
2.1 Tech IDs. TekMe will issue you a Tech ID to enable you to access and use the Tech App on a Device in accordance with this Agreement. You acknowledge and agree that you are required to fulfill a request for Tech Support Services using the Tech App at least twice per month to maintain an active Tech profile, and Company reserves the right to deactivate your Tech ID if you have not fulfilled a request for Tech Support Services using the Tech App at least twice per month. You agree that you will maintain your Tech ID in confidence and not share your Tech ID with any third party. You will immediately notify Company of any actual or suspected breach or improper use or disclosure of your Tech ID or the Tech App.
2.2 Provision of Tech Support Services. When the App is active, User requests for Tech Support Services may appear to you via the App if you are available and in the vicinity of the User. If you apply and are accepted to perform a User’s request for Tech Support Services, the TekMe Services will provide you with certain User Information via the App, including the User’s first name and service location. You will obtain the full description of the reason for the service request from the User, either in person upon arrival or from the App if the User elects to enter additional information via TekMe’s mobile application. You acknowledge and agree that once you have been accepted to perform a User’s request for Tech Support Services, TekMe’s mobile application may provide certain information about you to the User, including your first and last name, contact information, photo, profile and distance from User or location. You shall not contact any Users for any reason except for the purposes of fulfilling Tech Support Services. As between Company and you, you acknowledge and agree that: (a) you shall be solely responsible for determining the most effective, efficient, secure and safe manner to perform each instance of Tech Support Services; and (b) except for the TekMe Services or any Company Devices (if applicable), you shall provide all necessary equipment, tools and other materials not for resale, at your own expense, necessary to perform Tech Support Service. You further agree that Company may provide, at your expense, certain hardware and/or software which you can use to fulfill User support requests. You agree to reimburse Company for such hardware/software within 30 days of receipt or immediately upon sale, whichever is sooner.
2.3 Your Relationship with Users. You acknowledge and agree that your provision of Tech Support Services to Users creates a direct business relationship between you and the User. Company is not responsible or liable for the actions or inactions of a User in relation to your activities. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Tech Support Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a User or third party. You acknowledge and agree that Company may release your contact and/or insurance information to a User upon such User’s reasonable request. You acknowledge and agree that, unless specifically consented to by a User, you may not copy or transfer any User data or perform any activity during the performance of Tech Support Services for such User.
2.4 Your Relationship with Company. You acknowledge and agree that Company’s provision to you of the Tech App and the TekMe Services creates a direct business relationship between Company and you. Company does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Tech Support Services, and your acts or omissions. You retain the sole right to determine when and for how long you will utilize the Tech App or the TekMe Services. You retain the option, via the Tech App, to attempt to accept or to decline or ignore a User’s request for Tech Support Services via the TekMe Services, or to cancel an accepted request for Tech Support Services via the Tech App, subject to Company’s then-‐ current cancellation policies. With the exception of any signage required by local law or permit/license requirements, Company shall have no right to require you to: (a) display Company’s or any of its Affiliates’ names, logos or colors on your Vehicle(s) or equipment; or (b) wear a uniform or any other clothing displaying Company’s or any of its Affiliates’ names, logos or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to the TekMe Services; and (ii) engage in any other occupation or business. Company retains the right to, at any time at Company's sole discretion, deactivate or otherwise restrict you from accessing or using the Tech App or the TekMe Services in the event of a violation of this Agreement, your disparagement of Company or any of its Affiliates, your act or omission that causes harm to Company’s or its Affiliates’ brand, reputation or business as determined by Company in its sole discretion, or for any other reason at the reasonable discretion of Company.
2.5.1 You acknowledge and agree that after receiving Tech Support Services, a User will be prompted by TekMe’s mobile application to provide a rating of you and such Tech Support Services and, optionally, to provide comments or feedback about you and such Tech Support Services. You agree not to contact any User with respect to the rating they gave for your Tech Support Services.
2.5.2 You acknowledge that Company desires that Users have access to high-‐quality services via TekMe’s mobile and web applications. In order to continue to receive access to the App and the TekMe Services, you must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Company for your Territory, as may be updated from time to time by Company in its sole discretion (“Minimum Average Rating”). In the event your average rating falls below the Minimum Average Rating, Company will notify you and may provide you, at Company’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Company reserves the right to deactivate your access to the App and the TekMe Services.
ratings and comments in any manner in connection with the business of Company and its Affiliates without attribution to you and without your further approval. You acknowledge and agree that Company and its Affiliates are distributors (without any obligation to verify) and not publishers of your and User ratings and comments, provided that Company and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws, or Company’s or its Affiliates’ content policies.
2.6.1 If you elect to use any Company Devices, Company will supply you with such Company Devices and provide the necessary wireless data plan for such Devices, provided that Company may, at its discretion, require reimbursement from you for the costs
associated with the wireless data plan of each Company Device and/or request a deposit for each Company Device. You agree that: (a) Company Devices may only be used for
the purpose of enabling your access to the TekMe Services; and (b) Company Devices may not be transferred, loaned, sold or otherwise provided in any manner to any party other than you. Company Devices shall at all times remain the property of Company, and upon termination of this Agreement or your termination or deactivation, you agree to return to Company the applicable Company Devices within ten (10) days. You agree that failure to timely return any Company Devices, or damage to Company Devices outside of “normal wear and tear”, will result in the forfeiture of related deposits.
2.6.2 If you elect to use Your Devices: (i) you are responsible for the acquisition, cost and maintenance of Your Devices as well as any necessary wireless data plan; and (ii) Company shall make available the App for installation on Your Device. Company hereby grants you a personal, non-‐exclusive, non-‐transferable license to install and use the App on Your Device solely for the purpose of providing Tech Support Services. You agree to not provide, distribute or share, or enable the provision, distribution or sharing of, the App (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and you will delete and fully remove the App from the Tech-‐Provided Device in the event that you cease to provide Tech Support Services using Your Device. You agree that: (i) use of the App on Your Device requires an active data plan with a wireless carrier associated with Your Device, which data plan will be provided by you at your own expense; and (ii) use of the App on Your Device as an interface with the TekMe Services may consume very large amounts of data through the data plan. COMPANY ADVISES THAT YOUR DEVICE ONLY BE USED UNDER A DATA PLAN WITH UNLIMITED OR VERY HIGH DATA USAGE LIMITS, AND COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN.
2.7 Location Based Services. You acknowledge and agree that your geo-‐location information must be provided to the TekMe Services via a Device in order to provide Tech Support Services. You acknowledge and agree that: (a) your geo-‐location information will be monitored and tracked by the TekMe Services when you are logged into the App and available to receive requests for Tech Support Services or when you are providing Tech Support Services; and (b) your approximate location and/or distance from the User will be displayed to the User before and during the for their technical, marketing and commercial purposes, including to provide and improve their products and services.
3. Your Requirements and Documentation
3.1 Your Requirements. You acknowledge and agree that at all times, you shall: (a) hold and maintain all licenses, permits, approvals and authority applicable to you that are necessary to provide customer Tech Support Services to Users in the Territory; (b) possess the appropriate and current level of training, expertise and experience to provide Tech Support Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that you may be subject to certain background checks from time to time in order to qualify to provide, and remain eligible to provide, Tech Support Services. You acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Tech App or the TekMe Services if you fail to meet the requirements set forth in this Agreement.
3.3 Documentation. To ensure your compliance with all requirements in Section 3.1 above, you must provide Company with written copies of all such licenses, permits, approvals,
authority, registrations and certifications prior to your provision of any Tech Support Services. Thereafter, you must submit to Company written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. Company shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement.
4. Financial Terms
4.1 Fee Calculation and Your Payment. You are entitled to charge an hourly Fee for the time spent providing each instance of completed Tech Support Services provided to a User that are obtained via the TekMe Services (“Fee”), where such Fee is calculated based upon your hourly rate multiplied by your time spent in completing the Tech Support Services plus a profit on the sale of hardware, software or any other product related to your performance of Tech Support Services. You: (i) appoint Company as your limited payment collection agent solely for the purpose of accepting the Fee, and, depending on the region and/or if requested by you, applicable taxes and fees from the User on your behalf via the payment processing functionality facilitated by the TekMe Services; and (ii) agree that payment made by User to Company shall be considered the same as payment made directly by User to you. In addition, the parties acknowledge and agree that you, as the provider of Tech Support Services, set your own hourly rate and that any hourly rate suggested by the company is simply a recommended amount, the primary purpose of which is to provide you with some market information you might use to determine how high to set your hourly rate.Company agrees to remit to you on at least a weekly basis: (a) the Fee less the applicable Service Fee; and (b) depending on the region, certain taxes and ancillary fees. If you and TekMe have
separately agreed, Company may deduct other amounts from the Fee prior to remittance to you (e.g., mobile device usage charges, etc.).
4.2 Changes to Fee Calculation. Company reserves the right to change the Fee Calculation at any time in Company’s discretion based upon local market factors, and Company will provide you with notice in the event of such change that may result in a change in the recommended Fee for each instance of completed Tech Support Services. Continued use of the TekMe Services after any such change in the Fee Calculation shall constitute your consent to such change.
4.3 Fee Adjustment. Company reserves the right to: (i) adjust the Fee for a particular instance of Tech Support Services (e.g., you provide an inefficient solution, you fail to properly start or end a particular instance of Tech Support Services in the Tech App, you fail to complete a service request to the satisfaction of the User, etc.); or (ii) cancel the Fee for a particular instance of Tech Support Services (e.g., User is charged for Tech Support Services that were not provided or completed, in the event of a User complaint, fraud, etc.). Company’s decision to reduce or cancel the Fee in any such manner shall be exercised in a reasonable manner.
4.4 Service Fee. In consideration of Company’s provision of the App and the TekMe Services for your use and benefit hereunder, you agree to pay Company a service fee equal to 35% of the Fee you charge to customers for the Tech Support Services you perform (“Service Fee”). In the event regulations applicable to your Territory require taxes to be imputed in the Fee, Company shall calculate the Service Fee based on the Fee net of such taxes. Company reserves the right to change the Service Fee at any time in Company’s discretion based upon local market factors, and Company will provide you with notice in the event of such change. Continued use of the TekMe Services after any such change in the Service Fee calculation shall constitute your consent to such change.
4.5 Cancellation Charges. You acknowledge and agree that Users may elect to cancel requests for Tech Support Services, after a brief grace period, that have been accepted by you via the App at any time prior to your arrival. In the event that a User cancels an accepted request for Tech Support Services, Company will charge the User for one hour multiplied by your hourly rate a cancellation fee on your behalf. If charged, this cancellation fee shall be deemed the Fee for the cancelled Tech Support Services for the purpose of remittance to you hereunder.
4.6 Receipts. As part of the TekMe Services, Company provides you a system for the delivery of receipts to Users for Tech Support Services rendered. Upon your completion of Tech Support Services for a User, Company prepares an applicable receipt and issues such receipt to the User via email on your behalf. Such receipts are also provided to you via email or online portal. Receipts include the breakdown of amounts charged to the User for Tech Support Services and may include specific information about you, including your name, contact information and photo, etc.. Any corrections to a User’s receipt for Tech Support Services must be submitted to Company in writing within three (3) business days after the completion of such Tech Support Services. Absent such a notice, Company shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fee.
4.7 No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Company and its Affiliates may seek to attract new Users to TekMe and to increase existing Users’ use of TekMe’s mobile application. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement.
4.8 Taxes. You acknowledge and agree that you are responsible for collecting and remitting all applicable gross receipts, sales and use, excise or any other transaction tax on the provision of Tech Support Services or related charges (including the sale of hardware, software, etc.).
4.9 Refunds. You acknowledge and agree that you will not receive the Fee for Tech Support Services which are not complete or which services are not performed to the satisfaction of the User. Whether or not any individual Tech Support Services are determined to be incomplete or unsatisfactory shall be made solely by the Company. In such circumstance, your remuneration will be $25 in total, regardless of the amount of time you have spent to complete the Tech Support Services.
5. Proprietary Rights; License
5.1 License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants you a non-‐exclusive, non-‐transferable, non-‐sublicensable, non-‐assignable license, during the term of this Agreement, to use the TekMe Services (including the Tech App on a Device) solely for the purpose of providing Tech Support Services to Users and tracking resulting Fees and charges. All rights not expressly granted to you are reserved by Company, its Affiliates and their respective licensors.
5.2 Restrictions. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the TekMe Services, Tech App or any Company Device in any way; (b) modify or make derivative works based upon the TekMe Services or Tech App; (c) improperly use the TekMe Services or Tech App, including creating Internet “links” to any part of the TekMe Services or Tech App, “framing” or “mirroring” any part of the TekMe Services or Tech App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the TekMe Services or Tech App; (d) reverse engineer, decompile, modify, or disassemble the TekMe Services or Tech App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, you shall not, and shall not allow any other party to, access or use the TekMe Services or Tech App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the TekMe Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the TekMe Services; or (iv) attempt to gain unauthorized access to the TekMe Services or its related systems or networks.
5.3 Ownership. The TekMe Services, Tech App and Company Data, including all intellectual property rights therein, and the Company Devices are and shall remain (as between you and Company) the property of Company, its Affiliates or their respective licensors. Neither this Agreement nor your use of the TekMe Services, Tech App or Company Data conveys or grants to you any rights: (a) in or related to the TekMe Services, Tech App or Company Data, except for the limited license granted above; or (b) to use or reference in any manner Company’s, its Affiliates’, or their respective licensors’ company names, logos, product and service names, trademarks, services marks or other indicia of ownership.
6.1 Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Company Data, Tech IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-‐public information of each party that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
6.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-‐use no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Company, its internal record-‐keeping requirements).
6.3 Notwithstanding the foregoing, Confidential Information shall not include any information to
the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
7.1 Disclosure of Your Information. Subject to applicable law and regulation, Company and its Affiliates may, but shall not be required to, provide to you, a User, an insurance company and/or relevant authorities and/or regulatory agencies any information (including personal information (e.g., information obtained about you through any background check) and any Company Data) about you or any Tech Support Services provided hereunder if: (a) there is a complaint,
dispute or conflict, etc., between you and a User; (b) it is necessary to enforce the terms of this Agreement; (c) it is required, in Company’s or any Affiliate’s sole discretion, by applicable law or regulatory requirements (e.g., Company or its Affiliates receive a subpoena, warrant, or other legal process for information); or (d) it is necessary, in Company’s or any Affiliate’s sole discretion, to protect the safety, rights, property or security of Company or its Affiliates, the TekMe Services or any third party; to protect the safety of the public for any reason; to detect, prevent or otherwise address fraud, security or technical issues; and/or to prevent or stop activity Company or its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity).
7.2 Information provided by you and collected about you may be transferred or accessed by Company and its Affiliates around the world, including in jurisdictions that may have less protective privacy laws than your country. Company and its Affiliates located in the U.S. abide by the Safe Harbor frameworks set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information collected by organizations in the European Economic Area and Switzerland. You expressly consent to Company’s and its Affiliates’ use of location-‐based services and you expressly waive and release Company and its Affiliates from any and all liability, claims, causes of action or damages arising from your use of the TekMe Services,
or in any way relating to the use of the geo-‐location and other location-‐based services.
7.3 Company and its Affiliates may collect your personal data during the course of your application for, and use of, the TekMe Services, which information may be stored, processed, and accessed by Company and its Affiliates for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with Company’s and its Affiliates’ legitimate business needs. You expressly consent to such use of personal data.
8.2 You agree to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws in the Territory. If permitted by applicable law, you may choose to insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk.
8.4 Company may maintain, during the term of this Agreement, insurance related to your provision
of Tech Support Services as determined by Company in its reasonable discretion, provided that Company and its Affiliates are not required to provide you with any specific insurance coverage for any loss to you. You are required to promptly notify Company of incidents, including disagreements with Users related to the Tech Support Services they request, that occur while providing Tech Support Services and to cooperate and provide all necessary information related thereto.
9. Representations and Warranties; Disclaimers
9.1 By You. You hereby represent and warrant that: (a) you have full power and authority to enter into this Agreement and perform your obligations hereunder; (b) you have not entered into, and during the term will not enter into, any agreement that would prevent you from complying with this Agreement; and (c) you will comply with all applicable laws in your performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide Tech Support Services.
9.2 Disclaimer of Warranties. COMPANY AND ITS AFFILIATES PROVIDE, AND YOU ACCEPT, THE TEKME SERVICES, TECH APP AND THE COMPANY DEVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. COMPANY AND ITS AFFILIATES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE TEKME SERVICES, TECH APP OR THE COMPANY DEVICES: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY REQUESTS FOR TECH SUPPORT SERVICES. COMPANY AND ITS AFFILIATES FUNCTION AS AN ON-‐DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF THE USERS WHO MAY REQUEST OR RECEIVE TECH SUPPORT SERVICES FROM YOU, AND COMPANY AND ITS AFFILIATES DO NOT SCREEN OR OTHERWISE EVALUATE USERS. BY USING THE TEKME SERVICES AND TECH APP, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE INTRODUCED TO A THIRD PARTY THAT MAY POSE HARM OR RISK TO YOU OR OTHER THIRD PARTIES. YOU ARE ADVISED TO TAKE REASONABLE PRECAUTIONS WITH RESPECT TO INTERACTIONS WITH THIRD PARTIES ENCOUNTERED IN CONNECTION WITH THE USE OF THE TEKME SERVICES OR TECH APP. NOTWITHSTANDING COMPANY’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF YOU FOR THE PURPOSE OF ACCEPTING PAYMENT FROM USERS ON YOUR BEHALF AS SET FORTH IN SECTION 4 ABOVE, COMPANY AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU, ANY USER OR OTHER THIRD PARTY.
9.3 No Service Guarantee. COMPANY AND ITS AFFILIATES DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE TEKME SERVICES OR TECH APP. YOU ACKNOWLEDGE AND AGREE THAT THE TEKME SERVICES OR TECH APP MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON
(e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE TEKME SERVICES OR TECH APP MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND COMPANY AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
10. Indemnification. You shall indemnify, defend (at Company’s option) and hold harmless Company and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social contributions and taxes arising out of or related to: (a) your breach of your representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to your provision of Tech Support Services or use of the TekMe Services.
11. Limits of Liability. COMPANY AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER OR RELATED TO THIS AGREEMENT FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) YOUR OR ANY THIRD PARTY’S PROPERTY DAMAGE, OR LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. EXCEPT FOR COMPANY’S OBLIGATIONS TO PAY AMOUNTS DUE TO YOU PURSUANT TO SECTION 4 ABOVE, BUT SUBJECT TO ANY LIMITATIONS OR OTHER PROVISIONS CONTAINED IN THIS AGREEMENT WHICH ARE APPLICABLE THERETO, IN NO EVENT SHALL THE LIABILITY OF COMPANY OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF SERVICE FEES ACTUALLY PAID TO OR DUE TO COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
12. Term and Termination
12.1 Term. This Agreement shall commence on the date accepted by you and shall continue until terminated as set forth herein.
12.2 Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior written notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Company may terminate this Agreement or deactivate your Tech ID immediately, without notice, with respect to you in the event you no longer qualify, under applicable law or the standards and policies of Company and its Affiliates, to provide Tech Support Services, or as otherwise set forth in this Agreement.
12.3 Effect of Termination. Upon termination of the Agreement, you shall: (a) promptly return to Company all Company Devices; and (b) immediately delete and fully remove the Tech App from any of Your Devices. Outstanding payment obligations and Sections 1, 2.3, 2.5.3, 4.7, 4.8,
5.3, 6, 7, 9, 10, 11, 12.3, 13, 14 and 15 shall survive the termination of this Agreement.
13. Relationship of the Parties
13.1 Except as otherwise expressly provided herein with respect to Company acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Company and you; and (b) no joint venture, partnership, or agency relationship exists between Company and you.
13.2 You have no authority to bind Company or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Company or its Affiliates. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Company, you undertake and agree to indemnify, defend (at Company’s option) and hold Company and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.
14. Miscellaneous Terms
14.1 Modification. Company reserves the right to modify the terms and conditions of this Agreement at any time, effective upon publishing an updated version of this Agreement on the portal available to you on the TekMe Services. Company reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. You hereby acknowledge and agree that, by using the TekMe Services, or downloading, installing or using the Tech App, you
are bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fee Calculations. Continued use of the TekMe Services or App after any such changes shall constitute your consent to such changes. Unless changes are made to the arbitration provisions herein, you acknowledge and agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration.
14.2 Supplemental Terms. Supplemental terms may apply to your use of the TekMe Services, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“Supplemental Terms”). You may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
14.3 Severability. If any provision of this Agreement is or becomes invalid or non-‐binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non-‐binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-‐binding provision, given the contents and purpose of this Agreement.
14.4 Assignment. Neither party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party; provided that Company may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent: (a) to an Affiliate; or (b) to an acquirer of all or substantially all of Company’s business, equity or assets.
14.5 Entire Agreement. This Agreement, including all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.”
14.6 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-‐party beneficiary claims.
14.7 Notices. Any notice delivered by Company to you under this Agreement will be delivered by email to the email address associated with your account or by posting on the portal available to you on the TekMe website. Any notice delivered by you to Company under this Agreement will be delivered by contacting Company at TekMe.com in the “Contact Us” section. Additional Territory-‐specific notices may be required from time to time.
15. Governing Law; Arbitration
15.1 The interpretation of this Agreement shall be governed by California law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the TekMe Services shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and
County of San Diego, California. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non-‐Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions are only intended to specify the use of California law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending California law
to you if you do not otherwise reside or provide services in California. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by TekMe in writing.
15.2 Other than disputes regarding the intellectual property rights of the parties, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the TekMe Services may be subject to arbitration pursuant to Section 15.3.
15.3 Arbitration Provision
Important Note Regarding this Arbitration provision:
• Arbitration does not limit or affect the legal claims you may bring against the Company.
Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved.
• Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein.
• Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with the Company.
• IMPORTANT: This arbitration provision will require you to resolve any claim that you may have against the Company or TekMe on an individual basis pursuant to the terms of the Agreement unless you choose to opt out of the arbitration provision. This provision will preclude you from bringing any class, collective, or representative action against the Company or TekMe. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against the Company or TekMe by someone else.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ABRITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER
RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO
AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
i. How This Arbitration Provision Applies.
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and evidences a transaction involving commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.
Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with the Company, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-‐hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor
Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under
any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-‐Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
The parties expressly agree that TekMe is an intended third-‐party beneficiary of this Arbitration Provision.
ii. Limitations On How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
Claims for workers compensation, state disability insurance and unemployment insurance benefits;
Regardless of any other terms of this Arbitration Provision, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office
of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this Arbitration Provision 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;
Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd-‐Frank Wall Street Reform and Consumer Protection Act (Public Law 111-‐203) are excluded from the coverage of this Arbitration Provision;
Disputes regarding your, the Company’s, or TekMe’s intellectual property rights;
This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section
8116 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2010 (Pub. L. 111-‐118), section 8102 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2011 (Pub. L. 112-‐10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.
iii. Selecting The Arbitrator and Location of the Arbitration.
The Arbitrator shall be selected by mutual agreement of the Company and you. Unless you and the Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply. Those rules are available here:
The location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided Tech Support services under this Agreement, unless each party to the arbitration agrees in writing otherwise.
iv. Starting The Arbitration.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to the Company or TekMe shall be provided to Legal, ITX, LLC, 9455 Farnham Drive, Ste. 102, San Diego CA 92123. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in
connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
v. How Arbitration Proceedings Are Conducted.
In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.
You and the Company agree to resolve any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the Arbitration may still proceed on an individual basis only.
While the Company will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, the Company shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.
vi. Paying For The Arbitration.
Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, the Company will pay the Arbitrator's and arbitration fees. If under applicable law the Company is not required to pay all
of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned equally between the Parties
or as otherwise required by applicable law. Any disputes in that regard will be resolved by the
vii. The Arbitration Hearing And Award.
The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in
his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such
viii. Your Right To Opt Out Of Arbitration.
Arbitration is not a mandatory condition of your contractual relationship with the Company. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying the Company in writing of your desire to opt out of this Arbitration Provision, either by (1) sending, within 30 days of the date this Agreement is executed by you, electronic mail to Chris@TekMe.com, stating your name and intent to opt out of the Arbitration Provision or (2) by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.), or by hand delivery to:
9455 Farnham St., Ste. 102
San Diego CA 92123
In order to be effective, the letter under option (2) must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-‐marked within 30 days of the date this Agreement is executed by you. Your writing opting out of this Arbitration Provision, whether sent by (1) or (2), will be filed with a copy of this Agreement and maintained by the Company. Should you not opt out of
this Arbitration Provision within the 30-‐day period, you and the Company shall be bound by the terms
of this Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision. You understand that you will not be subject to retaliation if you exercise your right to assert claims or opt-‐out of coverage under this Arbitration Provision.
ix. Enforcement Of This Agreement.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. Except as stated in subsection v, above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
By clicking “I accept”, you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, and that you are legally competent to enter into this Agreement with Company.