PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: 2/14/17
Welcome to Prefer. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at (415) 684-7217, [email protected], or 660 4th St #411, San Francisco, CA 94107
ARBITRATION NOTICE: UNLESS YOU ARE A CONSUMER AND OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “DISPUTE RESOLUTION FOR CONSUMERS” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “DISPUTE RESOLUTION FOR CONSUMERS” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the www.prefer.com website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at [email protected]
What are the basics of using the Services?
You may be required to sign up for an account, and select a password and user name (“Company User ID”). You may also create an account using your log-in credentials for certain third party sites, such as Facebook (such account, a “Third-Party Account”). If you provide your Third-Party Account credentials to us or otherwise sign in to the Services through a Third-Party Account, we’ll create your account by extracting certain personal information, such as your name and email address, and other personal or contact information that your privacy settings on such Third-Party Account permit us to access (collectively, “Third-Party Account Information”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your Company User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You will not share your account or password with anyone, and you must protect the security of your account and your password. You are responsible for any activity associated with your account.
You represent and warrant that you are of legal age to form a binding contract (or if not, you have received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
Professionals, Clients and Groups
A user that lists or offers professional services through the Services is a “Professional.” A user that uses the service to seek professional services and/or connect with other users is a “Client.” The Services permit you to connect and communicate with Professionals and Clients that you know and to discover new Professionals through the network of Professionals and Clients with whom you are connected. If you are a Client, you can mark Professionals as recommended (“Recommended Professionals”) or private (“Private Professionals”). Any Client that you connect with will be able to see your Recommended Professionals. You can also share your Recommended Professionals with other Clients by choosing to join a group (“Group”). If you join a Group, any Client that is a member of such group will be able to see your Recommended Professionals, whether or not you are connected.
You will only use the Services for your own internal, personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.
Your use of the Services is subject to the following additional restrictions:
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
(a) Infringes or violates the intellectual property rights or any other rights of anyone else (including Company);
(b) Violates any law or regulation;
(c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) Jeopardizes the security of your Company account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content;
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
How do I connect with other users?
If you choose to import your contacts from your mobile device (“Contacts”), we will access and use your Contacts in order to identify users that you may know that are using the Services.
If you are a Client, you may be automatically connected with other Clients who are in your Contacts. We may also use your Contacts to identify Clients and Professionals that you may know using the Services and may ask you if you want to connect with such Professionals and Clients.
If you are a Professional, we may use your Contacts to identify any Clients that you may know using the Services and, if such Clients also have you listed in their contacts on their mobile device, will ask such Client if they want to connect with you.
Users may also be able to search for Clients and Professionals through the Services and send a connection request.
Please be aware that if you register for the Services and import your Contacts, you may be automatically connected with new users who join the Services after you if you have such users stored in your contacts.
How do I invite others to use the Services?
We may offer you the opportunity to invite your contacts to use the Services. If you choose to invite one or more of your contacts using text messaging (SMS) or another communications application we may suggest content for the message. You may be able to edit that suggested content, and if you choose to send text message invitations, those messages will be sent from the native SMS application on your device.** If you choose to send such invitations, you represent to Company that the recipients of such invitations have consented to receive such messages from you, and that those recipients do not consider such messages unwanted or unsolicited.**
What communications will I receive in connection with the Services?
As part of the Services we provide, you may (if enabled) receive notifications, alerts or other types of messages via text message, email or the messaging functionality provided by the Services (“Alerts”). You have control over the Alert settings, and can opt in or out of these Alerts (with the exception of infrequent, important service announcements and administrative messages) either through your account or by following the unsubscribe instructions provided in the e-mail you receive. Please be aware that third party messaging fees may occur for some of the Alerts depending on the message plan you have with your wireless carrier.
If you provide your cellular phone number and agree to receive communications from Company, you specifically authorize Company to send text messages or calls to your phone. You are not required to consent to receive text messages or calls as a condition of using the Services and may opt out of such messages through your account settings.
What are my rights in Interface?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Company’s) rights.
You understand that Company owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), creative derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
Do I have to grant any licenses to Company or to other users?
For all User Submissions, you hereby grant Company a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal Company account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Company the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to a Professional or Client) (a “Limited Audience User Submission”), then you grant Company the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. In addition, you grant, or permit Company to grant, such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view (each of the foregoing, a “Public User Submission”), then you grant Company the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Company users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Company’s business for any purpose. In addition, you grant, or permit Company to grant, all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your Company account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Company’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Company, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
Notwithstanding the foregoing, you agree that Company may identify you or your organization and use your likeness or your User Submissions, including any logos, on the Services, on Company’s website and in Company’s marketing materials to identify you or your organization as a user of the Services, and you hereby grant us a non-exclusive, royalty-free license to do so on the Services, our website or in any media now or later developed in connection with any marketing, promotion or advertising of Company or the Services.
We welcome feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (“Feedback”). You can submit Feedback by emailing us at [insert email address for Feedback] or through other means we make available through the Services. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like Company, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, visit [www.prefer.com/cdp/]. To learn more about the DMCA, click here.
Who is responsible for what I see and do on the Services?
Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Company will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. Company does not endorse, verify, investigate or vouch for any Professionals, Clients or other users of the Services. Company is not an employer of any Professionals you find or interact with on the Services. Company does not, in any way, supervise, direct or control any Professionals or Clients in any manner.
The Services may permit users to communicate and interact with other users through the Services. You acknowledge that any communications between you and any other users accomplished through the Services are not confidential or privileged and will not be the subject of any associated confidences or privileges. Although we’re not obligated to monitor communications between users, any such communications may be recorded and reviewed for fraud prevention, risk assessment, and customer support purposes. By using the Services, you agree that we may, in our sole discretion, review, scan, analyze, and store your communications, whether done manually or through automated means.
Any issues concerning the conduct of a Client or Professional including, without limitation, the services received by the Client or payment due to the Professional, must be resolved directly by the Client and the Professional. Company will not be held responsible and expressly disclaims any liability whatsoever for any claims, demands or damages direct or indirect of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such issues. By using the Services, you hereby represent, understand, and expressly agree to hold Company harmless for any claim or controversy that may arise from any disputes between you and any Client, Professional or other user(s) of the Services.
If there is a dispute between participants on this site, or between users and any third party, you agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Company, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Will Company ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Does Prefer cost anything?
Fees Charged by Company
Use of certain portions of the Services (the “Paid Features”) may be subject to certain fees or charges (collectively the “Fees”). Company’s currently applicable Fees, if any, can be found at https://prefer.com/fees and/or will be disclosed to you at the time of purchase. When you purchase a Paid Feature (a “Transaction”), you expressly authorize us (or our third party payment processor) to charge you for such Transaction. If your Transaction takes place on the App (as defined below), you authorize the applicable App Provider (as defined below) to charge your account with such App Provider for the Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your address(es) for billing and delivery (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method or your account with the App Provider for the type of Transaction you have selected (plus any applicable taxes, shipping fees and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).
ALL PURCHASES ARE FINAL. YOU WILL NOT BE ABLE TO CANCEL A PURCHASE AND/OR RECEIVE A REFUND OF YOUR PURCHASE PRICE AT ANY TIME. But if something unexpected happens in the course of fulfilling your order, we reserve the right to cancel your order for any reason; if we cancel your order we’ll refund any payment you may already have remitted to us.
Fees Charged by Professionals
If you are a Client and elect to engage a Professional to provide you any services, such Professional may charge you fees for such services and you shall be responsible for payment of all such fees. You acknowledge and agree that Company is not responsible for any such fees charged by any Professional.
What if I want to stop using Prefer?
Company is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Company has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at [email protected] – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
I use the Company’s Mobile App (“App”) – should I know anything about that?
Subject to your compliance with these Terms, Company grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the App on any mobile device or computer that you own or control and to run such copy of the App solely for your own personal, non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Company reserves all rights in and to the App not expressly granted to you under these Terms.
Additional Terms for App Store Apps
If you accessed or downloaded the App from the Apple App Store, then you agree to use the App only: (i) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service.
If you accessed or downloaded the App from any app store or distribution platform (like the Apple App Store or Google Play) (each, an “App Provider”), then you acknowledge and agree that:
· These Terms are concluded between you and Company, and not with App Provider, and that, as between Company and the App Provider, Company, is solely responsible for the App.
· App Provider has no obligation to furnish any maintenance and support services with respect to the App.
· In the event of any failure of the App to conform to any applicable warranty, you may notify App Provider and App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of an App to conform to any warranty will be the sole responsibility of Company.
· App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
· In the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Company will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
· App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third party beneficiary thereof.
· You must also comply with all applicable third-party terms of service when using the App.
· You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the App, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
What else do I need to know?
Warranty Disclaimer. Company does not make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from Company or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL COMPANY BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO COMPANY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold Company, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Company’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof.
*Dispute Resolution for Organizations or Other Entities. *If you are accessing and using the Services on behalf of an organization or other legal entity, any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in San Francisco County, California.
Dispute Resolution for Consumers
a. Agreement to Arbitrate.
If you are accessing and using the Services as an individual, you and Company agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to pursue injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Company with written notice of your desire to do so by email at [[email protected]] or regular mail at [660 4th St #411, San Francisco, CA 94107] within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Company with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Company with an Arbitration Opt-out Notice, will be the state and federal courts located in San Francisco County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Company with an Arbitration Opt-out Notice, you acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution for Consumers” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution for Consumers” section will survive any termination of these Terms.
b. Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution for Consumers” section. (The AAA Rules are available here or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution for Consumers” section.
c. Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
d. Arbitration Location and Procedure
Unless you and Company otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Company submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
e. Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Company will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Company will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the section above titled “Will these terms ever change?”, if Company changes this “Dispute Resolution for Consumers” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (as provided for in subsection (a) above) within 30 days of the date such change became effective, as indicated in the “Effective Date” above or in the date of Company’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Company in accordance with the provisions of this “Dispute Resolution for Consumers” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Company may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Company agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Company, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all modifications to these Terms must be in a writing signed by both parties (except as otherwise provided herein). No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Company in any respect whatsoever. Except as expressly set forth in the section above titled “Additional Terms for App Store Apps”, you and Company agree there are no third party beneficiaries intended under these Terms.
ADDITIONAL TERMS FOR CLIENTS
Subject to the terms and conditions hereof, Clients may use the Services to make payments for certain of the professional services offered or listed by Professionals on the Services (“Eligible Services”) through a third-party payment service provider (the “PSP”). Payments for Eligible Service may be made using cards bearing the trademarks of MasterCard International Inc. and Visa Inc. and American Express (collectively, the “Networks”) or such other payment methods supported by the Services. The Company and the PSP reserve the right to commence supporting, or discontinue support of, additional payment methods at any time without giving you prior notice. All balances and all Fees, charges, and payments collected or paid through the Services are denominated in US dollars.
In order to make payments through the Services, you will be required to provide Payment Information related to the payment method or financial account(s) you wish to use to pay for Eligible Services including, as applicable, your credit card or bank account details, and other personal information requested by the Company and/or the PSP. By providing such Payment Information to the Company and/or the PSP, you represent and warrant that you have a legal right to use such Payment Information to make payments and such Payment Information is accurate and complete and you agree to update such Payment Information as necessary to ensure that the Payment Information you have provided to the Company and/or the PSP remains accurate and complete.
We (or the PSP) may decide not to authorize or settle any transaction that you submit in connection with the Services if we (or the PSP) believe that the transaction is in violation of the Terms or any other agreement between you and the Company or the PSP, exposes the Company, Professionals, other Users, or the PSP to risk of Harm (as defined below). “Harm” shall mean fraudulent, injurious, or illegal conduct as determined by the Company and/or the PSP, in our sole discretion. You acknowledge and agree that we may share information about you, your account, and any of your transactions with law enforcement in the event we are requested to do so or if the Company and/or the PSP reasonably suspect that you have used the Services for unauthorized, illegal, or criminal purposes.
Without limiting any other provision of these Terms, we reserve the right, in our sole discretion, to terminate or suspend your access to the Services for any reason, in our discretion, including, without limitation, if we suspect you are using the Services to engage in, or enable any other User to engage in, transactions that expose us or the PSP to risk of Harm.
Third Party Payment Service Provider
In order to make payments through the Services, Users may be required to register with the PSP, agree to a PSP Account Agreement and the Terms of Service of the PSP and go through a vetting process at the request of the PSP to set up their account with the PSP. The PSP Account Agreement and Terms of Service retained by the Company are available at https://stripe.com/us/connect-account/legal (collectively, the “PSP Agreement”), which may be modified by the PSP from time to time. By accepting the Terms, you agree that you have downloaded or printed, reviewed and agree to the PSP Agreement. The Company is not a party to the PSP Agreement and the Company has no obligations or liability to you or any other users of the Services under the PSP Agreement.
You expressly authorize us (or our third party payment processor) to use the Payment Information associated with your account to charge all sums related to your engagement of a Professional to provide Eligible Services (“Eligible Service Charges”) to the payment method(s) connected with your account. Eligible Service Charges include fees and out-of-pocket expenses owed to a Professional, any tip or gratuity, if applicable, and the service fees and/or booking fees owed to Company for the use of the Services.
A temporary pre-authorization hold may be placed on your payment card to verify that the card is valid and has sufficient credit available to pay for Eligible Service Charges. Upon the completion of your Eligible Services, you will be charged the final Eligible Service Charges and the pre-authorization hold will be lifted within 24-72 business hours, depending on your bank. The pre-authorization hold may remain on your card for up to 5 business days even if the Eligible Services are not completed. The Company and/or the PSP may also place an initial temporary pre-authorization hold on each new payment method you add to your account.
If applicable, you agree to pay the applicable fees listed on our Fee Schedule available at https://prefer.com/fees for use of the Services (“Fees”). We reserve the right to change the Fees immediately upon notice. If you do not agree to any change in Fees, you must discontinue your use of the Services. By continuing to use the Services after notice of any change in Fees, you agree to any such change in Fees.
Professionals, not the Company or the PSP, are solely responsible for all issues relating to such Professional’s goods or services, including without limitation, any Eligible Services, pricing, order fulfillment, order or appointment cancellation, returns, refunds and adjustments, rebates, functionality and warranty, and feedback concerning experiences with such Professional, any personnel, their policies or processes. The Company reserves the right, but shall have no obligation, to, in its discretion, make refunds or provide promotional credits, or arrange for the PSP to do the same.
ADDITIONAL TERMS FOR PROFESSIONALS
Subject to the terms and conditions hereof, Professionals may use the Services accept payments for certain professional services they offer or list on the Services (“Eligible Services”) through a third-party payment service provider (the “PSP”). Payments for Eligible Services may be made using cards bearing the trademarks of MasterCard International Inc. and Visa Inc. and American Express (collectively, the “Networks”) or such other payment methods as may, from time-to-time, be supported by the Services. The Company and the PSP reserve the right to commence supporting, or discontinue support of, payment methods at any time without notice.
In order to accept payments through the Services, you will be required to provide information related to your financial account(s) and affairs including, as applicable, your credit card or bank account details, and other personal information requested by the Company and/or the PSP. By providing such information to the Company and/or the PSP, you represent and warrant that you have a legal right to provide such information and such information is accurate and complete and you agree to update such information as necessary to ensure that the Payment Information you have provided to the Company and/or the PSP remains accurate and complete. You authorize the Company to share all such information, and any other information related to your use of the Services, with the PSP.
We (or the PSP) may decide not to authorize or settle any transaction that you submit in connection with the Services if we (or the PSP) believe that the transaction is in violation of the Terms or any other agreement between you and the Company or the PSP, exposes the Company, Clients, or the PSP to risk of Harm (as defined below). “Harm” shall mean fraudulent, injurious, or illegal conduct as determined by the Company and/or the PSP, in our sole discretion. You acknowledge and agree that we may share information about you, your account, and any of your transactions with law enforcement in the event we are requested to do so or if the Company and/or the PSP reasonably suspect that you have used the Services for unauthorized, illegal, or criminal purposes.
Third Party Payment Service Provider
Payment processing services for Professionals on the Services are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms or continuing to operate as a Professional on the Services, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of the Company enabling payment processing services through Stripe, you agree to provide the Company accurate and complete information about you and your business, and you authorize the Company to share it and transaction information related to your use of the payment processing services provided by Stripe.
You expressly authorize us (or our third party payment processor) to use any Payment Information or other information associated with your account to charge all sums owing to the Company and/or the PSP related to your use of the Services.
If applicable, you agree to pay the applicable fees listed on our Fee Schedule available at https://www.prefer.com/fees/ (https://www.prefer.com/fees/) for use of the Services (“Fees”). We reserve the right to change the Fees immediately upon notice. If you do not agree to any change in Fees, you must discontinue your use of the Services. By continuing to use the Services after notice of any change in Fees, you agree to any such change in Fees.
Prefer shall not be liable for any losses relating to chargebacks, fraudulent charges, or unauthorized transactions (“Losses”) associated with your use of the Services to accept payments. By using the Services to accept payments, you hereby release and agree to indemnify, defend and hold the Company and the PSP harmless from any and all such Losses. You represent and warrant that you will not use the Services to accept payments where you suspect, or have reason to suspect, such payments could result in Losses or otherwise adversely impact the Company, the PSP, or the Services and you further agree to immediately notify us if you come to suspect, or have reason to suspect, that a payment made in connection with the Services may result in Harm or Losses. We reserve the right, in our sole discretion, to terminate or suspend your access to the Services for any reason, in our discretion, including, without limitation, if we suspect you are using the Services to engage in, or enable any other User to engage in, transactions that expose us or the PSP to the risk of Harm or Losses.
You expressly agree that, in the event of Losses associated with your use of the Services, payouts from your account may be suspended, we may instruct the PSP to withhold the amount of any Losses, including the amount of any chargeback and any associated fees, fines, or penalties listed in the Fee Schedule or assessed by the Association or the PSP, from amounts due to you and you hereby authorize the PSP to debit the amount of any Losses from your account or any proceeds due to you and/or to use the Payment Information to debit your bank account or charge any other payment instrument registered with us the amount of such Losses
You acknowledge and agree that, if we or the PSP reasonably believe that Losses are likely with respect to any transaction associated with your use of the Services, the amount of the potential Losses may be withheld from payments otherwise due to you under these Terms until such time that: (a) a chargeback is assessed; (b) the period of time under applicable law or regulation by which the Client may dispute that the transaction has expired; or (c) we determine that a chargeback on the transaction will not occur. If, for any reason, we are unable to recover funds related to a chargeback or other Losses for which you are responsible for under these Terms, you agree to pay us the full amount of the Losses immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all account deficit balances unpaid by you.
If we or the PSP determine that you are incurring an excessive amount of chargebacks, we may establish controls or conditions governing your use of the Services, including without limitation, by: (a) imposing additional or increased fees; (b) requiring you to establish and maintain a reserve in an amount reasonably determined to cover anticipated Losses and related fees, (c) delaying payouts; and (d) terminating or suspending the Services.
You agree to assist us when requested, at your expense, to investigate any of your transactions processed through the Services. To that end, you acknowledge and agree that we may share information about a chargeback with the applicable Client, the Client’s financial institution, and your financial institution in order to investigate and/or mediate chargebacks.
To the extent allowed by law, you grant us a security interest in, as well as a right of setoff against, and hereby assign, convey, deliver, pledge and transfer to us, as security for repayment of any obligations due, including the amount of Losses incurred in connection with your use of the Services, under these Terms, all of your right, title, and interest in and to all of your accounts with us.
By accepting payment through the Services, you agree to process returns of, and provide refunds and adjustments for, your goods or services through the Services in accordance with these Terms, the rules established by the Networks, and the Stripe Services Agreement.
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with services offered or listed on the Services and your use of the Services (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. We specifically disclaim any liability for Taxes.
If required by law, Prefer will report the following information to the Internal Revenue Service (“IRS”): your name, address, Tax Identification Number (such as a Social Security Number (SSN) or Employer Identification Number (EIN)), the total dollar amount of the payments you receive in a calendar year, and the total dollar amount of the payments you receive for each month in a calendar year.
You should not share any protected health information with service providers via the Services. The Services are not intended to be used to communicate protected health information, and it is not intended to be compliant with the Health Insurance Portability and Accountability Act (HIPAA). The term “protected health information” means any information that relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual. If you do share any protected health information, you do so at your own risk.