ServiceWhale™ is an online marketplace where Service Providers (such as home improvement contractors) can list their services for sale and Service Consumers (such as homeowners) easily find Service Providers offering the services they need, instantly get customized quotes, negotiate final service terms, and then order the services online.
Rules for Service Consumers
SERVICE CONSUMERS MAY NOT DO ANY OF THE FOLLOWING:
(a) commit to purchasing or using a Service without paying; (b) sign up for, negotiate a price for, use, or otherwise solicit a Service with no intention of following through with your use of or payment for the Service; (c) agree to purchase a Service when you do not meet the Service Provider's terms as outlined in the Posting, or agree to purchase a Service with the intention of disrupting a Posting; (d) misuse any options made available now or in the future by ServiceWhale in connection with the use or purchase of any Service; (e) cancel a placed Order for a Service on the Website, but then order a substantially similar Service from the same Service Provider outside the Website; or (f) cancel a placed Order for a Service on the Website, but still have that ordered Service delivered to you.
SERVICE CONSUMER’S OBLIGATIONS UPON PLACING AN ORDER
Upon placing an Order with a Service Provider via the Website, the Service Consumer must do the following at the first meeting with the Service Provider:
- Verify that the Service Provider holds all required licenses, certificates, insurance, bonds and other items required to deliver the Service;
- If the Service requires obtaining any permits (e.g. from the local municipality), agree with the Service Provider as to who and when will obtain such permits;
- Have the Service Provider verify that all information provided by the Service Consumer regarding the requested Service in the Order (such as capacity of equipment to be installed) is valid and correct;
- If any adjustments need be made to the terms of the Order, agree on such adjustments with the Service Provider in writing and record them in the conversation (chat) with the Service Provider within that Order on the Website.
CONSEQUENCES OF VIOLATING THE RULES FOR SERVICE CONSUMERS
If a Service Consumer violates any of the above-referenced rules in connection with his or her Posting, ServiceWhale, in its sole discretion, may take any or more of the following actions: (a) cancel the Posting; (b) limit the Service Consumer's Account privileges; and/or (c) terminate the Service Consumer's Account.
- SERVICE CONSUMERS MAY NOT DO ANY OF THE FOLLOWING:
Rules for Service Providers
PROFILES AND OFFERS MUST BE ACCURATE
ROFILES AND OFFERS MAY NOT CIRCUMVENT SERVICEWHALE FEES
PRICING FOR ALL LISTED SERVICES MUST BE DISCOUNTED
Any Service Consumer shopping for a Service at ServiceWhale expects a discount off the full price of the Service. Every Service Provider must offer a discount rate (at least 5% off the Service Provider’s standard price for such Service) for each Service listed on ServiceWhale.
SERVICE PROVIDER’S OBLIGATIONS UPON RECEIPT OF AN ORDER
Upon receipt of an Order from a Service Consumer via the Website, the Service Provider must do the following:
- Contact the Service Consumer by phone no later than 5 p.m. Eastern Time of the working day following the day when the Order was placed and agree on the appointment time to deliver the Service;
- At the first meeting with the Service Consumer, verify that all information provided by the Service Consumer regarding the requested Service in the Order (such as capacity of HVAC equipment to be installed) is valid and correct;
- If any adjustments need be made to the terms of the Order, agree on such adjustments with the Service Consumer in writing and record them in the conversation (chat) with the Service Consumer within that Order on the Website;
- Deliver the Service to the Service Consumer as per the terms of the Order in good faith and at the level of quality meeting or exceeding the industry standards.
Note that if there are no changes to the scope of work stated in the Order (Service Agreement), you are not allowed to request the Service Consumer to increase the agreed price of the Order, even if you were not aware of certain aspects of the Service when providing your firm price for the Service. If you perceive this to be a risk, ask the Service Consumer for additional information or use the Request On-Site Visit feature of the Website or add disclaimers to your quote prior to providing your firm price. If you do increase the price of the Order without changes to the scope of work written in the Order, you agree to pay ServiceWhale an additional fee up to the amount of the price increase, so that we can compensate the same amount to the Service Consumer.
The Service Provider should schedule an appointment with the Service Consumer at a time convenient for both parties. However, the Service Providers are advised that per federal and state consumer protection laws, Service Consumers may have a right to cancel an Order for certain Services (and sales of equipment and materials), even after the initial appointment, as long as the Service Consumer gives a proper cancellation notice within three (3) business days of the placement of the Order on the Website. If a Service Consumer is interested in waiving the right of rescission, the Service Provide must obtain a signed clear and legible waiver from the Service Consumer stating that the Service Consumer fully understands his/her right to cancel the contract within three (3) business days of the date of the placement of the Order and knowingly and willingly waives such right. A sample form of waiver of the right to rescind a contract for home improvements is attached to the Standard Contract. Unless a Service Consumer has placed an Order for an emergency Service and/or has signed a written waiver of the right to cancel the Service, Service Providers are advised not to commence any work and/or deliver any materials or equipment pursuant to an Order until the rescission period has expired.
OTHER RULES FOR PROFILES AND OFFERS
If a Service Provider receives a message or an action (such as a request to confirm price) from a Service Consumer where the Service Consumer expects a reply or another action (such as a price confirmation), such a reply or action should be given by the Service Provider no later than within 1 (one) business day, otherwise ServiceWhale, in its sole discretion, may issue a warning to such a Service Provider. If the Service Provider still does not reply to the Service Consumer within 1 (one) business day upon receipt of the warning, then ServiceWhale, in its sole discretion, may assess a late response fee in the amount of $20 (twenty dollars) on the Service Provider’s credit card on file.
CONSEQUENCES OF VIOLATING THE RULES FOR SERVICE PROVIDERS
If a Service Provider violates any of the above-referenced rules in connection with the Service Provider’s Posting, ServiceWhale, in its sole discretion, may take any or more of the following actions: (a) cancel the Posting; (b) limit the Service Provider's Account privileges; (c) terminate the Service Provider's Account; and/or (d) decrease the Service Provider's status or rating earned via the Feedback page.
- PROFILES AND OFFERS MUST BE ACCURATE
ServiceWhale Fees, Cancellations and Refunds
NO FEES FOR SERVICE CONSUMERS
ServiceWhale is ENTIRELY FREE for Service Consumers. Service Consumer pays the agreed Service price directly to the Service Provider, at the time and using the payment method agreed between the Service Consumer and the Service Provider. The Service Consumer does not pay ServiceWhale directly any amounts for the Service.
Once a Service booked through ServiceWhale was delivered by the Service Provider and fully paid for, ServiceWhale will pay the Service Consumer a rebate in the amount of 2% of the total Order amount, up to $500. ServiceWhale reserves the right to change these terms without prior notice.
SERVICE PROVIDER FEES
Joining ServiceWhale, posting Listings, sending Quotes, exchanging Messages with potential Service Consumers, and viewing/editing all posted content is free to service providers.
In order to post Listings for Services, a Service Provider should provide their credit card details to ServiceWhale via the Website, as a security measure to guarantee Service Provider’s timely payment of due Commissions. To verify the card, ServiceWhale will attempt to hold $50 (fifty dollars) on Service Provider’s credit card and then will immediately release that hold. If the credit card expires, the Service Provider should provide ServiceWhale with valid new card details, otherwise Service Provider’s Service Listings will be deactivated.
For each Order placed by a Service Consumer against a Service Provider’s Quote we charge the Service Provider a commission (“Commission”) equal to 10% of the Order amount, unless a different commission was agreed between the ServiceWhale and the Service Provider. The Service Provider must pay the Commission to ServiceWhale within 30 calendar days from the date of the Order.
A Service Provider has an option to send a Service Consumer a request for an on-site visit or for contact information prior to receiving an Order. Likewise, a Service Consumer has an option to request a call or an onsite visit from a Service Provider. The following rules apply:
- Once the Service Consumer approves a Service Provider’s on-site visit request or contact information request, or the Service Consumer requests a call or an onsite visit from the Service Provider, the Service Provider owes ServiceWhale a non-refundable lead fee of $10 (ten dollars).
- The Service Provider receives the Service Consumer’s contact details and contacts the Service Consumer directly to discuss the project and, optionally, set an appointment for on-site visit;
- During the subsequent on-site visit, the Service Provider must notify the Service Consumer that if he/she accepts the Service Provider’s offer for the Service, the Service Consumer will have to place the order for such Service through ServiceWhale, and not directly with the Service Provider;
- Once the on-site visit is completed, the Service Provider should quote the firm final price to the Service Consumer through ServiceWhale;
- If the Service Consumer then places an Order for the Service Provider’s Service, the commission due to ServiceWhale from the Service Provider on same Order is reduced by the amount of the paid lead fee;
- Service Provider understands that the lead fee is final and not refundable even if the Service Consumer changes his/her decision to allow an on-site visit.
Should a Service Provider secure a customer due to the Website (via request on-site visit or any other feature of the Website), the Service Provider should ask the Service Consumer to place the corresponding Order through the Website. However, the Service Provider is responsible for the Commissions on any orders received from Service Consumers found due to the Website even if such orders were not formally placed through the Website.
ServiceWhale reserves the right to use the Service Provider’s credit card on file to charge any Commissions due to ServiceWhale.
ServiceWhale reserves the right at its sole discretion to charge fees to Service Providers for other services and options that ServiceWhale may provide. Changes to this Fee Policy are effective after ServiceWhale has provided you with fourteen (14) days' notice by posting the changes on the Website.
You understand and agree that you are solely responsible for determining your own tax reporting requirements and for collection, withholding, reporting and remitting federal, state and local taxes required to be paid in connection with your use of the Website to the appropriate tax authorities. ServiceWhale cannot and do not offer tax advice to either Service Providers or Service Consumers.
CANCELLATIONS AND REFUNDS FOR SERVICE CONSUMERS
- You may cancel your Order online any time up until the midnight of the third (3rd) business day following the date when you place your Order on the Website.
CANCELLATIONS AND REFUNDS FOR SERVICE PROVIDERS
A Service Provider cannot cancel an Order received from a Service Consumer, and must deliver the Service as per the terms of the Order in good faith and at the level of quality meeting or exceeding the industry standards.
If ServiceWhale determines that no such violation took place, the Commission due from the Service Provider to ServiceWhale on such cancelled Order will be waived.
If ServiceWhale determines that such a violation took place, ServiceWhale, in its sole discretion, may take any of the following actions: (a) terminate the Service Provider's Account; (b) decrease the Service Provider's status or rating earned via the Feedback page; and/or (c) keep the Service Provider responsible for the Commission (or any part thereof) payable to ServiceWhale on such cancelled Order.
You, as a Service Provider, are expressly agreeing to comply with all ServiceWhale’s decisions and actions per provisions of this Section D-6 and are waiving your right to dispute such decisions and actions.
- NO FEES FOR SERVICE CONSUMERS
Negotiations, Service Agreements and Disputes between Website Users
NEGOTIATION AND SERVICE AGREEMENT FRAMEWORK
As a courtesy to Registered Users, to facilitate the negotiation and confirmation of the agreement for service, ServiceWhale provides a general legal framework for negotiating and documenting the terms of a Service on the Website, which includes the following Service Agreement components (also known as Order Documents) for each specific Service traded on the Website. However, all Registered Users are advised to verify that the Service Agreement for a particular Service complies with all state and local legal requirements that may be applicable to contracts for home improvements in the state and municipality where the Service is to be performed and, if needed, prepare and sign any additional documents necessary or recommended to ensure such compliance:
Service Agreement component Description 1. Standard Contract
Standard Contract describing general terms and conditions of the Service, rights and obligations of the Service Provider and the Service Consumer, dispute resolution rules, etc.
Displayed on the Website under “Standard terms for this service”.
Prepared by ServiceWhale, the Standard Contract is the same for all consumers and providers of any Service and is accepted by the Service Provider when confirming the Quote for the Service and by the Service Consumer when placing an Order for the Service.
2. Standard Scope of Work
Describes what work, parts and materials are included into the Service. Items not expressly included should be assumed excluded.
Displayed on the Website under “What will I get for this price?” and “What you will get for this price” on Service Consumer side; under “Your obligation to the customer once they purchase your service on ServiceWhale” and “What customer will get for this price” on Service Provider side.
Defined by ServiceWhale and is the same for all consumers and providers of that Service.
3. Service Provider-Specific Terms
Describes additional terms for this Service from this specific Service Provider. E.g. may define payment terms or set an extra charge for after hours work.
Displayed on the Website under “Your additional terms for this service” on Service Provider side; under “Additional terms from this business” on both Service Consumer and Service Provider sides.
Defined by the Service Provider as a part of their Service Listing.
Supplements and/or overrides components (1) and (2) above.
4. Quote Details
Describes details of Service Provider’s specific Quote (offer) in response to a specific Service Request. Each Quote includes a price and a number of other Service-specific parameters, such as HVAC equipment details and hourly rate.
Quote is automatically generated by ServiceWhale based on the Service Provider’s pricing policy for this Service defined in their Listing and send to the Service Consumer in response to their Service Request.
Most of the services on ServiceWhale generate firm (binding) quotes upfront, however some services may support tentative (estimated) quoting. Once the Service Consumer reviews a tentative-price Quote and requests a firm price, the Service Provider should review the related Service Request and take one of the following actions: (i) confirm the Quote price as is; (ii) adjust the Quote price and confirm it; or (iii) withdraw the Quote. After taking actions (i) or (ii), the Service Provider may at any time, at their sole discretion, reduce the price of their firm-price Quote, e.g. if the Service Consumer requests an additional discount.
By confirming a tentative (estimated) Quote, the Service Provider agrees to deliver the Service as per Service Request for the indicated firm fixed price. If the Service Provider is not ready to comply with Service Consumer’s Service Request in all respects, the Service Provider should expressly raise specific objections to the Service Request in the conversation (see below) prior to confirming the Quote price or in the comments when confirming the Quote price.
Once a tentative (estimated) Quote price is confirmed by the Service Provider by clicking “Confirm Price” or “Adjust Price”, it becomes a firm-price quote, binding on the Service Provider.
If the Service Consumer then places an Order against a firm-price Quote by clicking “Order”, the Service Provider enters into a binding contract with the Service Consumer and must honor the price and other terms contained in the Quote and in all other components of the Service Agreement related to that Quote.
Quote Details are displayed on the Website on Quote Details page.
5. Request Details
Describes details of a Service requested by this specific Service Consumer. E.g. what kind of HVAC system is needed, what size and efficiency. Also includes photographs that may be attached by the Service Consumer to their Service Request.
Defined by Service Consumer as a part of their Service Request.
Displayed on the Website under “Service request”.
Supplements and/or overrides components (1) and (2) above.
The Website allows the Service Consumer and the Service Provider to discuss the Request, the Quote and all other components of the Service Agreement, and, if needed, agree on any additional terms and/or resolve any remaining questions using the conversation (chat) feature.
Once the order is placed, the conversation history becomes an inseparable component of the Service Agreement made between the Service Consumer and the Service Provider.
Conversation is displayed on the Website on Quote Details page.
Conversation history supplements and/or overrides all other components of the Service Agreement.
7. Order Confirmation
Includes the service location (typically, home address of the Service Consumer) and the contact information of the Service Consumer and the Service Provider.
Order Confirmation is sent to both the Service Consumer and the Service Provider by email and is also available on the Website on Order Details page.
Once the Service Consumer orders the Service Provider’s Service against a Quote, such a Quote, together with other components of the Service Agreement related to it, becomes an Order. As used on the Website, “Order” is equivalent to “Service Agreement” and includes the components (1) - (7) listed above.
Each Order is a legally binding contract made between the Service Provider and the Service Consumer, which both parties must honor.
Order details are available on the Website on Order Details page, as well as in order confirmation emails sent by the Website to both parties.
Component number above reflects its priority. In case of a discrepancy between components of the same Order, the component with a higher number has a priority over the component with a lower number.
- In the Service Provider-Specific Terms for a carpeting service, the Service Provider stated that the Service does not include disposal of the old carpet;
- In the Request Details, the Service Consumer says that he/she wants the old carpet to be disposed of as a part of the requested Service;
- If, after reviewing the Service Consumer’s request, the Service Provider confirms its Quote without mentioning the old carpet disposal, it means the carpet disposal is included into the quoted price, since the Request Details have a higher priority (5) than the Service-Provider Specific Terms (3);
- But if the Service Provider first mentions in the Conversation (chat) that the old carpet disposal is not included and then confirms the price, it means the carpet disposal is NOT included into the quoted price, since the Conversation has a higher priority (6) than the Request Details (5).
Registered Users acknowledge and agree that (i) they are solely responsible for addressing all issues that exist now or may arise in the future in connection with the applicable Service; and (ii) it is solely up to such Registered Users, if they so desire, to enter into an additional signed, written contract, that addresses all of the relevant issues and memorializes the agreed upon ServiceWhale Service Agreement.
You should not rely on any information or resources contained on the Website, including, without limitation, the Service Agreement and its components, as a replacement or substitute for any professional, financial, legal or other advice or counsel. ServiceWhale makes no representations and warranties, and expressly disclaims any and all liability, concerning actions taken by a user following the information or using the resources offered or provided on or through the Website, including, without limitation, the Service Agreement and its components. In no way will ServiceWhale be responsible for any actions taken or not taken based on the information or resources provided on this Website. If you have a situation that requires professional advice, you should consult a qualified professional. Do not disregard, avoid or delay obtaining professional advice from a qualified professional because of information or resources that are provided on this Website, however provided.
SERVICEWHALE IS NOT A PARTY TO ANY SERVICE AGREEMENT
Each Registered User hereby acknowledges and agrees that ServiceWhale is NOT a party to any Service Agreement, any Order Document(s), and/or any contract or understanding, whether verbal or written, entered into between Registered Users in connection with any Service offered, directly or indirectly, through the Website.
NO AGENCY OR PARTNERSHIP
DISPUTES BETWEEN WEBSITE USERS
Subject to the provisions regarding disputes between Website participants in connection with Feedback, your interactions with individuals and/or organizations found on or through the Website, including payment of and performance of any Service, and any other terms, conditions, warranties or representations associated with such transactions or dealings, are solely between you and such individual or organization. You should take reasonable precautions and make whatever investigation or inquiries you deem necessary or appropriate before proceeding with any online or offline transaction with any third party, including without limitation, Service Providers and Service Consumers.
You understand that deciding whether to use the Services of a Service Provider or provide Services to a Service Consumer or use information contained in any Submitted Content, including, without limitation, Postings, Listings, Quotes, Requests and/or Feedback, is your personal decision for which you alone are responsible. You understand that ServiceWhale does not and cannot make representations as to the suitability of any individual you may decide to interact with on or through the Website and/or the accuracy or suitability of any advice, information, or recommendations made by any individual.
NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT SERVICEWHALE SHOULD NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT WHATSOEVER INCURRED AS THE RESULT OF ANY SUCH TRANSACTION OR DEALINGS. IF THERE IS A DISPUTE BETWEEN PARTICIPANTS ON THE WEBSITE, OR BETWEEN REGISTERED USERS OR ANY WEBSITE USER AND ANY THIRD PARTY, YOU ACKNOWLEDGE AND AGREE THAT SERVICEWHALE IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN YOU AND ONE OR MORE WEBSITE USERS, REGISTERED USERS OR ANY THIRD PARTY, YOU HEREBY RELEASE SERVICEWHALE, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR THE WEBSITE OR ANY SERVICE PROVIDED THEREUNDER.
- NEGOTIATION AND SERVICE AGREEMENT FRAMEWORK
No Criminal History
By requesting to use, registering to use, and/or using the Website as a Service Provider or a Service Consumer, you represent and warrant that you and each member of your household have never been the subject of a complaint, restraining order or any other legal action involving, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others.
Additionally, by requesting to use, registering to use, and/or using the Website as a Service Provider, you represent and warrant that each employee of your company (business) who will be visiting homes of Service Consumers upon receiving Orders via the Website, has never been the subject of a complaint, restraining order or any other legal action involving, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others.
You hereby authorize ServiceWhale to verify your representations and warranties herein, and you acknowledge that ServiceWhale reserves the right, but not the obligation, to verify such representations and warranties and to take action it deems appropriate in its sole discretion.
Should you or your company (business) no longer comply with provisions of this Section F in the future, you agree that you will discontinue using the Website and terminate your membership immediately.
Membership and Access to the Website
Use of the Website is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. You represent, acknowledge and agree that you are at least 18 years of age, and that: (a) all registration information that you submit is truthful and accurate, (b) you will maintain the accuracy of such information, and (c) your use of the Website and Services offered through this Website do not violate any applicable law or regulation. Your Account (defined below) may be terminated without warning if we believe that you are under the age of 18 or that you are not complying with any applicable federal, state or local laws, rules or regulations.
You need not register with ServiceWhale to simply visit and view the Website, but to access and participate in certain features of the Website, you will need to create a password-protected account ("Account"). To create an account, you must submit your name and email address through the account registration page on the Website and create a password. You will also have the ability to provide additional optional information, which is not required to register for an account but may be helpful to ServiceWhale in providing you with more a more useful experience when using the Website. You may also register for an Account using your existing Facebook account and log-in credentials (your "Third-Party Site Password").
You are solely responsible for safeguarding your ServiceWhale password and, if applicable, your ThirdParty Site Password (collectively, "Passwords") at all times and should keep your Passwords secure at all times. You should not allow other persons access to and/or the use of your Account and you are solely responsible for all activity that occurs on your Account. You should notify ServiceWhale immediately of any breach of security or any unauthorized use of your Account. Similarly, you may never use another user's Account without permission. You agree that you will not misrepresent yourself or represent yourself as another user of the Website and/or the Services offered through the Website. You hereby acknowledge and agree that ServiceWhale will not be liable for your losses caused by an unauthorized use of your Account. Notwithstanding the foregoing, you may be liable for the losses of ServiceWhale or others due to such unauthorized use. An Account holder is sometimes referred to herein as a "Registered User."
You acknowledge and agree that you should comply with the following policies (the "Account Policies"):
- You will not copy or distribute any part of the Website in any medium without ServiceWhale's prior written authorization.
- You will not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose.
- You will provide accurate and complete information when creating your Account.
- You should not use any automated system, including but not limited to, "robots," "spiders," "offline readers," "scrapers," etc., to access the Website for any purpose without ServiceWhale's prior written approval.
- You should not in any manual or automated manner collect Service Providers or Service Consumers information, including but not limited to, names, addresses, phone numbers, or email addresses, copying copyrighted text, or otherwise misuse or misappropriate Website information or content, including but not limited to, use on a "mirrored", competitive, or third party site.
- You should not use the Website in any way that transmits more request messages to the ServiceWhale servers, or any server of a ServiceWhale subsidiary or affiliate, in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; provided, however, that the operators of public search engines may use spiders or robots to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such material. ServiceWhale reserves the right to revoke these exceptions either generally or in specific cases.
- You should not recruit, solicit, or contact in any form Service Providers or Service Consumers for employment or contracting for a business not affiliated with ServiceWhale without express written permission from ServiceWhale.
- You should not take any action that (i) unreasonably encumbers or, in ServiceWhale's sole discretion, may unreasonably encumber the Website's infrastructure; (ii) interferes or attempts to interfere with the proper working of the Website or any third-party participation in the Website; or (iii) bypasses ServiceWhale's measures that are used to prevent or restrict access to the Website.
- You agree not to collect or harvest any personally identifiable data, including without limitation, names or other Account information, from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes.
If you do not meet, or are unable to comply with, any of the above-referenced membership eligibility criteria or Account Policies, please do not use the Website. Should ServiceWhale find that you violated the terms of the membership eligibility criteria or any other terms stated herein, ServiceWhale reserves the right, at its sole discretion, to immediately terminate your use of the Website.
- ACCESS LICENSE
RESTRICTIONS ON POSTED CONTENT
You should not upload, post, transmit, transfer, disseminate, distribute, or facilitate distribution of any content, including text, images, video, sound, data, information, or software, to any part of the Website, including your profile ("Profile"), the posting of your Service ("Listings" and “Quotes”), the posting of your desired Service ("Request"), the messages exchanged between you and other users of the Website (“Messages”), the posting of ordered service details (“Orders”) or the posting of any opinions or reviews in connection with the Website, the Service, the Service Provider, or the Service Consumer ("Feedback") (all of the foregoing content is sometimes collectively referred to herein as "Submitted Content" and the posting of Submitted Content is sometimes referred to as a "Posting" or as "Postings") that:
- invades anyone's privacy by attempting to harvest, collect, store, or publish private or personally identifiable information, such as names, email addresses, phone numbers, passwords, account information, credit card numbers, home addresses, or other contact information without their knowledge and willing consent;
- contains falsehoods or misrepresentations that could damage ServiceWhale or any third party;
- is pornographic, harassing, hateful, illegal, obscene, defamatory, libelous, slanderous, threatening, discriminatory, racially, culturally or ethnically offensive; incites, advocates, or expresses pornography, obscenity, vulgarity, profanity, hatred, bigotry, racism, or gratuitous violence; encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; promotes racism, hatred or physical harm of any kind against any group or individual; contains nudity, violence or inappropriate subject matter; or is otherwise inappropriate;
- is copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to post the material and to grant ServiceWhale all of the license rights granted herein;
- contains or promotes an illegal or unauthorized copy of another person's copyrighted work or any other item the copy, display, use, performance, or distribution of which infringes on another's copyright, intellectual property right, or any other proprietary right;
- is intended to threaten, stalk, defame, defraud, degrade, victimize, or intimidate an individual or group of individuals for any reason on the basis of age, gender, disability, ethnicity, sexual orientation, race, or religion; or to incite or encourage anyone else to do so;
- intends to harm or disrupt another user's computer or would allow others to illegally access software or bypass security on websites or servers, including but not limited, to spamming; impersonates, uses the identity of, or attempts to impersonate a ServiceWhale employee, agent, manager, host, another user, or any other person though any means;
- advertises or solicits a business not related to or appropriate for the Website (as determined by ServiceWhale in its sole discretion);
- contains or could be considered "junk mail", "spam", "chain letters", "pyramid schemes", "affiliate marketing", or unsolicited commercial advertisement;
- contains advertising for Ponzi schemes, discount cards, credit counseling, online surveys or online contests;
- distributes or contains viruses or any other technologies that may harm ServiceWhale, or the interests or property of ServiceWhale users;
- is non-local or irrelevant content;
- contains identical content to other open Postings you have already posted; or uses any form of automated device or computer program that enables the submission of Postings without the express written consent of ServiceWhale.
RESTRICTIONS ON SENT MESSAGES
You will not send Messages to other users containing:
- offers to make national or international money transfers for amounts exceeding the asking price of a service, with intent to request a refund of any portion of the payment;
- unsolicited advertising or marketing of a service not offered on the Website or an external website; or
- your direct contact details or requests for the other party’s direct contact details or offers to contact each other outside ServiceWhale before the Order for the Service is placed on the Website.
RESTRICTIONS RELATED TO SERVICES
While using the Website, you should not:
- post content or items in any inappropriate category or areas on the Website;
- fail to deliver payments to the Service Provider for Services ordered by you, unless the Service Provider has materially changed the description of the Service description after you negotiate an agreement for such Service, a clear typographical error is made, or you cannot authenticate the Service Provider's identity;
- fail to perform Services ordered from you according to the term of the Order (Service Agreement), unless the Service Consumer fails to materially meet the terms of the mutually agreed upon agreement for the Services, refuses to pay, a clear typographical error is made, or you cannot authenticate the Service Consumer's identity; manipulate the price of any Service or interfere with other users' Postings;
- circumvent or manipulate our fee structure, the billing process, or fees owed to ServiceWhale; make any misrepresentations to ServiceWhale aimed at or resulting in avoidance or reduction of fees owed to ServiceWhale, or solicit any other party to make such misrepresentations;
- post false, inaccurate, misleading, defamatory, or libelous content (including personal information about any Website user);
- take any action that may undermine the Feedback or ratings systems (such as displaying, importing or exporting Feedback information off of the Website or using it for purposes unrelated to the Website);
- being a Service Provider and using the Website under any user account to request any Services that you have listed for sale;
- being a Service Provider and using the Website under any user account to collect any information on other Service Providers offering Services in the same categories as you are offering, or soliciting any third parties to do so.
As a participant in the Website, you agree to use careful, prudent, and good judgment when leaving Feedback for another user. The following actions constitute inappropriate uses of Feedback: (a) threatening to leave negative or impartial Feedback for another user unless that user provides services not included in the original Posting or not agreed to as part of the Service to be provided; (b) leaving Feedback in order to make the Service Provider or Service Consumer appear better than he or she actually is or was; and (c) including conditions in a Listing, Quote or Request that restrict a Service Provider or a Service Consumer from leaving Feedback.
Penalties for Inappropriate Use of Feedback. If you violate any of the above-referenced rules in connection with leaving Feedback, ServiceWhale, in its sole discretion, may take any of the following actions: (i) cancel your Feedback or any of your Postings; (ii) limit your Account privileges; (iii) suspend your Account; and/or (iv) decrease your status or rating earned via the Feedback page.
Reporting Inappropriate Use of Feedback. You may contact ServiceWhale regarding any inappropriate use of Feedback via-email at email@example.com.
Resolving Disputes in Connection with Feedback. In the event of any dispute between users of the Website concerning Feedback, ServiceWhale should be the final arbiter of such dispute. Further, IN THE EVENT OF ANY DISPUTE BETWEEN USERS OF THE WEBSITE CONCERNING FEEDBACK, SERVICEWHALE HAS THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO REMOVE SUCH FEEDBACK OR TAKE ANY ACTION IT DEEMS REASONABLE WITHOUT INCURRING ANY LIABILITY THEREFOR.
The foregoing lists of prohibitions provide examples and is not complete or exclusive. ServiceWhale reserves the right to (a) terminate your access to your Account, your ability to post to this Website (or the Services) and (b) refuse, delete or remove, move or edit the content, in whole or in part, of any Postings; with or without cause and with or without notice, for any reason or no reason, or for any action that ServiceWhale determines is inappropriate or disruptive to this Website or to any other user of this Website and/or Services. ServiceWhale reserves the right to restrict the number of Messages that you are allowed to send to other users to a number that ServiceWhale deems appropriate in ServiceWhale's sole discretion. ServiceWhale may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at ServiceWhale's discretion, ServiceWhale will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Website or on the Internet. ServiceWhale does not and cannot review every Posting posted to the Website. These prohibitions do not require ServiceWhale to monitor, police or remove any Postings or other information submitted by you or any other user.
- RESTRICTIONS ON POSTED CONTENT
Content Submitted by Users
Non-Confidential Submitted Content. The Website may now or in the future permit publishing of your Service Provider Profile, your Service Provider Listings and your Feedback. You agree that any such content provided by you for which you authorize to be searchable by Registered Users who have access to the Website is provided on a non-proprietary and non-confidential basis. You agree that ServiceWhale should be free to use or disseminate such freely searchable content on an unrestricted basis for the purpose of providing the Services.
Confidential Submitted Content. The Website will not publish your Service Consumer Profile, your service Requests, your sent and received Quotes containing specific pricing for specific Requests, your placed and received Orders, and your Messages exchanged with other Website users, except for Feedback.
YOUR REPRESENTATIONS AND WARRANTIES
YOUR OWNERSHIP RIGHTS AND LICENSE TO SERVICEWHALE
You retain all of your ownership rights in your Submitted Content. However, by submitting any Submitted Content to ServiceWhale for posting on the Website, you hereby grant, and you represent and warrant that you have the right to grant, to ServiceWhale a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use all the Submitted Content in connection with the Website and ServiceWhale's (and its successor's) business operations.
Additionally, by submitting the Non-Confidential Submitted Content to ServiceWhale for posting on the Website, you hereby grant, and you represent and warrant that you have the right to grant, to ServiceWhale a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to link to, reproduce, distribute, reformat, translate, prepare derivative works of, display, and perform the Non-Confidential Submitted Content in connection with the Website and ServiceWhale's (and its successor's) business operations, including without limitation, for the promotion and redistribution of any part or all of the Website, and any derivative works thereof, in any media formats and through any media channels.
You acknowledge and understand that the technical processing and transmission of the Website, including your Submitted Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You may remove your Submitted Content from the Website at any time. If you choose to remove your Submitted Content, the license granted above will automatically expire.
SERVICEWHALE'S DISCLAIMERS AND RIGHT TO REMOVE
You acknowledge and understand that when using the Website, you will be exposed to Submitted Content from a variety of sources, and that ServiceWhale is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Submitted Content. You further acknowledge and understand that you may be exposed to Submitted Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against ServiceWhale with respect thereto, and agree to indemnify and hold ServiceWhale, its owners, members, managers, operators, directors, officers, agents, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Website.
You are solely responsible for the photos, profiles and other content, including, without limitation, Submitted Content, that you publish or display on or through the Website, or transmit to other Website users. You understand and agree that ServiceWhale may, in its sole discretion and without incurring any liability, review and delete or remove any Submitted Content that violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Website users or others.
If you send or transmit any communications, comments, questions, suggestions, or related materials to ServiceWhale, whether by letter, email, telephone, or otherwise (collectively, "Suggestions"), suggesting or recommending changes to the Website, including, without limitation, new features or functionality relating thereto, all such Suggestions are, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and ServiceWhale is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Suggestions, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Suggestions. You understand and agree that ServiceWhale is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Suggestions, and you have no right to compel such use, display, reproduction, or distribution.
Verification of Service Providers
ServiceWhale, voluntarily and at its sole discretion, may use a variety of tools in an effort to make our website as safe as possible for Service Providers and Service Consumers. Among these tools may be searches in sex offender databases; name, address and social security number verifications, credit report verifications and criminal background checks, all using third-party verification tools and services.
Do not register as a Service Provider on ServiceWhale if you do not authorize ServiceWhale to run the foregoing verifications on you.
By registering as a Service Provider on the Website, you do hereby consent to allow ServiceWhale to perform the verifications using information you provide, and you understand that ServiceWhale may review the information provided by a third-party verification service and that ServiceWhale, after reviewing the results, may take whatever actions it deems necessary with respect to your Account.
You hereby authorize ServiceWhale to verify your representations and warranties herein, and you acknowledge that ServiceWhale reserves the right, but not the obligation, to verify such representations and warranties and to take action it deems appropriate in its sole discretion. You agree to indemnify and hold harmless ServiceWhale from any loss or liability that may result from such verifications.
In addition, you do hereby represent, understand and expressly agree that ServiceWhale offers the third-party verification services as a convenience and does not have control over or assume any responsibility for the quality, accuracy, or reliability of the third-party verification services and/or the information provided by the third-party verification services. ServiceWhale retains the right to terminate your ServiceWhale membership based on the information provided by third party verification services.
Fair Credit Reporting Act
If you are registering as a Service Provider, then pursuant to the Fair Credit Reporting Act (the "FCRA"), by this notice ServiceWhale, Inc. notifies you that it may, as part of your use of a third-party verification service, obtain a consumer report about you from a consumer reporting agency. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers' compensation, driving, employment, military, civil, and educational data and reports. If you decide to use or access information provided by a third-party verification service offered through the Website, you warrant that you will comply with the FCRA, which can be found at http:// www.ftc.gov/os/statutes/fcrajump.shtm, and all other applicable consumer reporting laws. If you decide to access, use, or share information provided by a third-party verification service offered through the Website with any other party (either through this Website or otherwise), you agree to do so in accordance with applicable law and to indemnify and hold ServiceWhale harmless from any loss, liability, damage, or costs that may result from such access, use, or sharing of this information regardless of the cause. ServiceWhale does not assume and expressly disclaims any liability that may result from the use of information provided by a third-party verification service.
Pursuant to the Digital Millennium Copyright Act of 1998 ("DMCA") and other federal and state laws, ServiceWhale has established policies for dealing with alleged and actual copyright and trademark infringement. If you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement and/or trademark infringement, please send the following information to us: (i) identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site; (ii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Website, and information reasonably sufficient to permit ServiceWhale to locate the material.; (iii) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright and/or trademark owner, its agent, or the law; (iv) information reasonably sufficient to permit ServiceWhale to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted; (v) an electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive interest that is allegedly infringed; and (vi) a statement by you, made under penalty of perjury, that the information in your report is accurate and that you are the owner of the exclusive right or authorized to act on the behalf of the owner of the exclusive right. A statement by you comprised of the foregoing points is referred to herein as the "Notice."
Any communications regarding this matter should be directed to ServiceWhale customer service via e-mail at firstname.lastname@example.org.
You acknowledge that if you fail to comply with all of the requirements, your Notice may not be valid. ServiceWhale will remove any infringing material, subject to the procedures outlined in the DMCA. Notwithstanding ServiceWhale's instructions above, you are solely responsible for ensuring that any Notice you provide to ServiceWhale complies with the provisions of the DMCA.
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Modifications and Terminations
MODIFICATION OR DISCONTINUATION OF WEBSITE
ServiceWhale reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part thereof), including, but not limited to, any fees now or hereafter charged to Service Consumers and/or Service Providers for the use of the Website, with or without notice and in its sole discretion. You agree that ServiceWhale should not be liable to you or to any third party for any modification, suspension or discontinuance of ServiceWhale services.
ACCOUNT TERMINATION BY SERVICEWHALE
ACCOUNT TERMINATION BY YOU
If you are a Service Provider, you may prevent the Website from referring any new potential customers to you without terminating your membership by clicking “Deactivate” on each of your Listings under “Services You Sell” tab.
If you are a Service Consumer, you may prevent any further communications from Service Providers without terminating your membership by clicking “Cancel” or “Delete” on each of your Requests under “Search Results” tab.
EFFECTS OF TERMINATION
Unless ServiceWhale has previously canceled or terminated your use of the Website (in which case subsequent notice by ServiceWhale should not be required), if you provided a valid email address during registration, ServiceWhale will notify you via email of any such termination or cancellation, which should be effective immediately upon ServiceWhale's delivery of such notice.
Upon Termination of Service, the following should occur: all licenses granted to you hereunder will immediately terminate; and you should promptly destroy all copies of ServiceWhale Data (as defined below), Marks (as defined below) and other content in your possession or control. You further acknowledge and agree that ServiceWhale should not be liable to you or any third party for any termination of your access to the Website. Upon Termination of Service, ServiceWhale retains the right to use any data collected from your use of the Website for internal analysis and archival purposes, and all related licenses you have granted ServiceWhale hereunder should remain in effect for the foregoing purpose. In no event is ServiceWhale obligated to return any Submitted Content to you. Sections D, E, J, K, M, N, O, Q, R, S, T, U, V, W, and X, should survive expiration or termination of the Website or your Account.
You agree to indemnify and hold ServiceWhale, and its shareholders, officers, managers, members, affiliates, successor, assigns, directors, agents, Service Providers, suppliers, and employees harmless from any claim or demand, including reasonable attorneys' fees and court costs, made by any third party due to or arising out of the Termination of Service.
If you have received or placed any Orders via the Website prior to termination of your membership, you will have to comply with terms of such Orders notwithstanding the status of your membership, since such Orders constitute direct contracts made between you and other users of the Website.
If you are a Service Provider and have any outstanding firm-price Quotes sent to prospective Service Consumers, you will have to honor the terms of such quotes notwithstanding the status of your membership.
- MODIFICATION OR DISCONTINUATION OF WEBSITE
Intellectual Property Rights
LICENSES TO DATA AND MARKS
The content on the Website (exclusive of all Submitted Content), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like ("Data") and the trademarks, service marks and logos contained therein ("Marks"), are owned by ServiceWhale, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Other trademarks, names and logos on this Website are the property of their respective owners.
Data on the Website is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. ServiceWhale reserves all rights not expressly granted in and to the Website and the Data. You agree not to use, copy, or distribute, any of the Data other than as expressly permitted herein, including any use, copying, or distribution of Submitted Content obtained through the Website for any commercial purposes. If you download or print a copy of the Data for personal use, you must retain all copyright and other proprietary notices contained thereon. You agree not to circumvent, disable or otherwise interfere with security features of the Website or features that prevent or restrict use or copying of any Data or enforce limitations on use of the Website or the Data therein.
SERVICEWHALE'S LICENSE TO YOU FOR DATA AND MARKS
The Website may also contain Data of other users or licensors, which you should not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell.
ServiceWhale reserves the right to discontinue any aspect of the Website at any time.
- LICENSES TO DATA AND MARKS
- GOVERNING LAW
Advertisements on Website
Aspects of the Website and other ServiceWhale services may be supported by advertising revenue. As such, ServiceWhale may display advertisements and promotions on the service. The manner, mode and extent of advertising by ServiceWhale on the Website are subject to change and the appearance of advertisements on the Website does not necessarily imply endorsement by ServiceWhale of any advertised products or services. You agree that ServiceWhale should not be responsible or liable for any loss or damage of any sort incurred by you as a result of any such dealings or as the result of the presence of such advertisers on the Website.
Third-party Links, Contact Forms and Phone Numbers
Disclaimer of Warranties
YOU AGREE THAT YOUR USE OF THE WEBSITE SHOULD BE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, SERVICEWHALE AND ITS SHAREHOLDERS, OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, SUPPLIERS, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS WEBSITE, THE SERVICES OFFERED ON OR THROUGH THIS WEBSITE, ANY DATA, MATERIALS, SUBMITTED CONTENT, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS WEBSITE, INCLUDING WITHOUT LIMITATION THE MATERIALS, DATA AND SUBMITTED CONTENT OF OTHER USERS OF THIS SITE OR OTHER THIRD PARTIES. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS WEBSITE, THE SERVICES OFFERED ON OR THROUGH THIS WEBSITE, DATA, MATERIALS, SUBMITTED CONTENT, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS WEBSITE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE" AND "WHEREIS" BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SERVICEWHALE DOES NOT PROVIDE ANY WARRANTIES AGAINST ERRORS, MISTAKES, OR INACCURACIES OF DATA, CONTENT, INFORMATION, MATERIALS, SUBSTANCE OF THE WEBSITE OR SUBMITTED CONTENT, ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY, ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, CONTENT, INFORMATION, MATERIALS, SUBSTANCE OF THE WEBSITE OR SUBMITTED CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE. SERVICEWHALE DOES NOT ENDORSE, WARRANT, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR ANY HYPERLINKED SITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISEMENT. SERVICEWHALE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY PARTY, INCLUDING THIRDPARTY SERVICE PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE USE OF ANY PRODUCT OR SERVICE, AND THE PUBLISHING OR POSTING OF ANY MATERIAL THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
Limitations of Liability
IN NO EVENT SHOULD SERVICEWHALE, OR ITS RESPECTIVE OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, SUPPLIERS, ATTORNEYS OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ACCESS TO OR USE OF THE WEBSITE OR ANY SERVICES OFFERED BY ANY SERVICE PROVIDERS VIA THE WEBSITE, INCLUDING SERVICES PROVIDED PURSUANT TO AN AGREEMENT FORMED INDEPENDENTLY OF THE WEBSITE, WHETHER OR NOT AN AGREEMENT FOR SERVICE FORMED VIA THE WEBSITE IS IN EFFECT; (II) ERRORS, MISTAKES, OR INACCURACIES OF DATA, MARKS, CONTENT, INFORMATION, MATERIALS OR SUBSTANCE OF THE WEBSITE OR SUBMITTED CONTENT; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE BY ANY THIRD PARTY; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE; (VI) ANY ERRORS OR OMISSIONS IN ANY DATA, CONTENT, INFORMATION, MATERIALS OR SUBSTANCE OF THE WEBSITE OR SUBMITTED CONTENT; (VII) ANY FAILED NEGOTIATIONS FOR A SERVICE, ANY DISPUTES THAT ARISE DURING OR AFTER THE NEGOTIATION OF A SERVICE OR THE FORMATION OF A CONTRACT FOR A SERVICE, OR ANY OTHER DISPUTE THAT ARISES BETWEEN USERS OF THE WEBSITE; (VIII) ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; OR (IX) ANY USE OF ANY DATA, MARKS, CONTENT, INFORMATION, MATERIALS OR SUBSTANCE OF THE WEBSITE OR SUBMITTED CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SERVICEWHALE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHOULD APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IN NO EVENT SHOULD THE TOTAL, AGGREGATE LIABILITY OF SERVICEWHALE, OR ANY OF THE ABOVE-REFERENCED RESPECTIVE PARTIES, ARISING FROM OR RELATING TO THE WEBSITE, AND/OR SUBMITTED CONTENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO SERVICEWHALE BY YOU HEREUNDER.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT SERVICEWHALE SHOULD NOT BE LIABLE FOR SUBMITTED CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU FURTHER ACKNOWLEDGE AND AGREE THAT SERVICEWHALE SHOULD NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM OR RELATING TO ANY CONTRACT BETWEEN WEBSITE USERS ENTERED INTO INDEPENDENTLY OF THE WEBSITE.
Indemnification and Release
IF YOU HAVE A DISPUTE WITH ONE OR MORE WEBSITE USERS, YOU FOREVER RELEASE SERVICEWHALE (AND ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, SUPPLIERS, AGENTS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITE AND/OR ANY SUBMITTED CONTENT.
Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS Q AND R MAY NOT APPLY TO YOU.
No Third-party Beneficiaries
STATUTE OF LIMITATIONS
You agree that despite any law to the contrary, any cause of action arising out of or related to the Website must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.