T&C’s
DownUnder Terms and Conditions
Last updated: August 23rd 2019
These Terms and Conditions will define a legally binding agreement between you and DownUnder Services LLC. (“Business” or “DownUnder”) governing ones use of the DownUnder Platform (as defined below), including the Business website (https://www.godownunderusa.com known as the “Site”) and all cell phone applications (known as the “Apps”). The DownUnder Platform, and related services provided by the Business, the Site, and Apps, including and without any or all limitation, communications and information (whether orally, in writing or otherwise in any form) provided by Business to potential and actual Croo’s and Clients in relation to the services, together are hereinafter referred to collectively as the “DownUnder Platform.”
Any personal data and personal detail that you submit to the DownUnder Platform or which we house on the platform regarding you or about you is governed by our “Lock and Key Policy (“Lock and Key Policy”). A copy of our Lock and Key Policy is available on our site. Through the acknowledgement of this Terms and Conditions you acknowledge that by using the DownUnder Platform, you have reviewed and understand the Lock and Key Policy.
Your use of the DownUnder Platform constitutes your acceptance of and agreement to all of the terms and conditions in these Terms of Conditions, the Lock and Key Policy’, the DownUnder “Love You Lots Oath” (the “Love You Lots Oath”), and any future amendments and additions to this Agreement (defined below) as we may publish from time to time. The Lock And Key Policy and the Love You Lots Oath are incorporated within these Terms and Conditions and together form, are defined by and are hereinafter referred to as this “Agreement”.
This Agreement will govern how any disputes between the Client and DownUnder can be resolved. This Agreement contains a binding and final arbitration provision and Class Action waiver. Please the following carefully as it effects your legal rights, including where applicable, your right to leave any type of Arbitration.
In addition, by entering into this Agreement, you acknowledge that you have read, agree and understand without qualification or limitation, to be bound by this Agreement (Including any Arbitration or Dispute Resolution provisions contained within this Agreement and/or where applicable) and you accept all of its Terms and Conditions.
If you do not agree to be bound by this Agreement, you may not use, access, or view the DownUnder platform
Your use of the DownUnder Platform in a country other than the country in which you register constitutes your acceptance of and agreement to all of the terms and conditions in these Terms and Conditions, the Lock And Key Policy, and the DownUnder Love You Lots Oath for that particular county.
You must be 18 years of age (for those U.S. based users) or a minimum of the legally required age in each particular jurisdiction in which you reside, and otherwise legally able to enter into binding contracts including the use or access to the DownUnder Platform.
If you are under 18 years of age, for said U.S. based users, or the age of majority in your jurisdiction, then you may not use, view or access the DownUnder Platform. Children under 13 years old are prohibited from accessing, using or viewing the DownUnder Platform or otherwise providing any personal information to DownUnder.
Some Key points of this Terms and Conditions Agreement include;
· Your consent to submit any claims against Business to binding arbitration, and on an individual basis only, to the extent permissible by law.
· Your agreement to indemnify Business from claims due to your use or inability to use the DownUnder Platform or content submitted from your account to the DownUnder Platform.
· Your consent to release Business from and and all liability based on claims between Clients, in respect of a Croo persons claims and generally.
· Your acknowledgement and agreement that Croo people are Independent Contractors of Clients and not employees, Independent Contractors or service providers of the Business (DownUnder).
· Your acknowledgement and agreement that Clients are solely responsible for determining if the Croo person they hire through the DownUnder platform is qualified to perform the selected Task at hand.
· Your agreement that Business has no liability regarding the DownUnder Platform or the performance of Tasks.
· Your agreement that the DownUnder Platform.
· Your agreement that the TaskRabbit Platform is provided “as is” and without warranty.
Purpose of the DownUnder Platform is to connect Croo’s and Clients.
The DownUnder Platform is a web-based communications platform that enables connections between Clients and Croo people. “Clients” are individuals and/or businesses seeking to obtain short-term job services (“Jobs”) from Croo people and are therefore clients of the Croo person, and “Croos” are individuals and/or businesses seeking to perform Jobs for Clients. Clients and Croos together are hereinafter referred to as “Users.” If you choose to agree on the terms herein of a Task with another User then you and such other User form a “Connection Agreement” directly between the two of you as set forth in more detail in Section (?)
Croo people are Independent Contractors of Clients and are not Employees, Partners, Agents, Representatives, Independent Contractors, Joint Ventures, or Franchisees of Business. The Business does not and will not perform tasks and does not employ individuals to perform tasks. Users hereby acknowledge that Business does not supervise, direct, monitor or control a Croo persons work and disclaims and responsibility and liability for the work performed and the Jobs in any context, including and limited to a warranty or condition of a Good and Worker service, warranty or condition of the quality or fitness and ability for a particular purpose, or compliance with any relevant city, state or federal law, regulation or appropriate code.
The DownUnder Platform only enables connections between Users for the objective and attainment of Jobs. Business is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Jobs, Croos, Clients, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings provided by Users with respect to each other. Business makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Jobs requested or services provided by, or the communications of or between, Users identified through the DownUnder Platform, whether in public, private, or offline interactions or otherwise.
User Vetting and User Warranties and Representations.
User Vetting
In Business’s sole discretion, Users may be subject to a vetting process before they can register for and during their use of the DownUnder Platform, including but not limited to, a verification of identity, using third party services as appropriate (“Client and Croo Checks”). Although Business may perform Client and Croo Checks, Business is not required to do so and cannot confirm that each User is who they claim to be. Business cannot and does not assume any responsibility for the accuracy or reliability of Client and Croo Check information or any information provided through the DownUnder Platform.
When interacting with other Users on the platform, you will need to exercise caution and common sense to protect your personal safety, data, privacy and property, just as you would when interacting with other persons whom you don’t know in any other context.
DownUnder will not be liable for any false or misleading statements made by Users in the DownUnder Platform. Neither DownUnder or its parents, licensors, affliliates, including their respective directors, shareholders, officers, agents, representatives, insurers, investors, subsidiaries, employees, successors or assigns (herein referred to as the “DownUnder And Colleagues”) is responsible for the omission, act or conduct whether on the DownUnder Platform or not, of any or all Users of the DownUnder Platform and you will hereby release DownUnder And Colleagues from any and all liability, demands, claims, or damages of every kind, and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way, connected with the DownUnder Platform.
User Warranties and Representations
You represent and warrant that following:
- That you are 18 years of age or older (for U.S. based users) or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts.
- That you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organisation, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You further represent and warrant that you have read, understand, and agree to be bound by these Terms And Conditions, the Lock and Key Policy, and the Love You Lots Oath in order to access and use the Platform. You hereby warrant and represent that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of Users and that you will not record (whether video or audio or otherwise) any Job or any interaction by or with any User and/or Company in connection with the DownUnder Platform without the prior written consent of Business and/or the relevant User, as applicable.
You further represent and warrant that you will fulfil the commitments you make to other Users, including paying/receiving payment through the DownUnder Platform using the PSP (as defined below), performing the Task(s) agreed upon as between the Croo and Client, communicating clearly and promptly through the chat thread and/or responding to invitations promptly, being present and/or available at the time you agree upon with your Croo or Client as the case may be, and only utilising the third party payment processing system specified or approved by us to make or receive payment for services provided through the DownUnder Platform (the “PSP”). You also represent and warrant that you will act professionally and responsibly in your interactions with other Users. You warrant that you will not purchase or deliver controlled substances on the DownUnder platform. You further represent and warrant that when using or accessing the DownUnder Platform, you will act in accordance with any applicable local, state, provincial, national, or international law or custom and in good faith.
You hereby warrant and represent that, other than as fully and promptly disclosed to Business as set forth below, you do not have any motivation, status, or interest which Business may reasonably wish to know about in connection with the DownUnder Platform, including without limitation, if you are using or will or intend to use the DownUnder Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Business in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Business Platform.
Croo’s additionally represent and warrant that you will provide timely, high-quality services to your Clients, you will only offer and provide services for which you have the necessary skills and expertise, and you will provide the services safely and in accordance with all applicable laws, and that you have the legal right to work in the country in which you are performing Tasks.
Contract between Clients and Croo People
You acknowledge and agree that a legally binding contract (the “Connection Agreement”) is formed when you agree on the terms of a Job with another User. The terms of the Connection Agreement include the terms set forth in this Section, the engagement terms proposed and accepted on the DownUnder Platform, and any other contractual terms accepted by both the Croo and their Client to the extent such terms do not conflict with the terms in this Agreement, including this Section, and do not expand Business’s obligations or restrict Business’s rights under this Agreement. You agree that Business is not a party to any Connection Agreement and the formation of a Connection Agreement will not, under any circumstance, create an employment or other service relationship between Business and the Croo (or Assistants (as defined below)), nor will it create an employment relationship between the Client and the Croo (or Assistants (as defined below)). Business’s role is restricted solely to acting as a limited payment collection agent for the Croo to facilitate payment on behalf of the Croo through the DownUnder Platform using the PSP in respect of Jobs they perform. In acting as the limited payment collection agent for particular Jobs on the DownUnder Platform, DownUnder disclaims any other agency or authority to act on behalf of the Croo, and assumes no liability or responsibility for any acts or omissions of the Croo, either within or outside of the DownUnder Platform.
Where approved in advance by the Client, the Croo is not obligated to personally perform the Job. Before any Job services are performed by any assistants, helpers, subcontractors or other personnel engaged by the Croo (collectively “Croo Helpers”), the Croo shall require any such individuals to become fully registered, oriented and verified Croo people on the DownUnder Platform. A Croo’s failure to comply with this provision by bringing a Croo Helper who is not a registered Croo person could lead to removal from the DownUnder Platform. The Croo person assumes full and sole responsibility for the acts and omissions of such Croo Helpers, including without limitation the payment of all compensation, benefits and expenses of Croo Helpers, if any, and for all required and applicable income tax withholdings as to the Croo person and all persons engaged by the Croo person in the performance of the Job services.
While using the DownUnder Platform, Clients, in their sole discretion, determine whether they will be present or not when a Job is performed and/or completed. Clients who elect not to be present when a Job is performed and/or completed agree that if someone other than them (i.e. spouse, roommate, friend, etcetera) is present when the Job is performed, they are appointing that person as their agent (“Client’s Assistant”) and the Croo person may take and follow direction from the Client’s Assistanrt as if such direction was given from the Client him or herself.
The Client shall pay their Croo person directly for completed Job services through the PSP as indicated on the DownUnder Platform at the rates agreed to by the parties in the Connection Agreement. Each User agrees to comply with the Connection Agreement and this Agreement during the engagement, performance and completion of a Job. Both Users agree to notify Business of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Business representatives for at least thirty (30) days before initiating any proceeding. DownUnder reserves the right to suspend or terminate any account or Job pending the resolution of any dispute.
Billing and Payment
Users of the DownUnder Platform contract for Jobs directly with other Users. Business will not be a party to any contracts for jobs or services. Payment for Job services through the DownUnder Platform is made directly from the Client to the Croo person via the PSP, and not by Company. Company is not obligated to pay Croo person for Client’s failure to pay for services.
Users of the DownUnder Platform will be required to provide their payment method details to Business and the PSP. Croo people are responsible for invoicing their Clients within 24 hours of the work being performed, even if the Job is not completed in its entirety or is designated as “in process”. Clients will be responsible for paying the invoice for each Job (the “Invoice”), which will include (i) the pricing terms of the Job agreed with and provided by a Croo person (“Croo Payment”), (ii) any out of pocket expenses agreed with and submitted by a Croo person in connection with the Croo, (iii) any tip or gratuity, if applicable, (iv) the service charge Business assesses to the Client as payable for the use of the DownUnder Platform, variable based on the Job Payment amount, and (v) the platform fee (sometimes referred to as a Support And Security Fee) Business assesses to the Client, which is used to offset Business’s cost of providing Users with customer support, providing the Love You Lots Oath set forth in Section 13, and other various business objectives, and (vi) cancellation fees, if applicable. Croo people will be responsible for paying (i) registration fees, if applicable and (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments. Clients may also be charged credit card processing fees equal to three percent (3%) of the aggregate expense amount if expenses related to a Job individually, or Job in the aggregate over a 30-day period, exceed $300.00.
Croo people may be required to register with the PSP, agree to terms of service of the PSP, and go through a vetting process at the request of the PSP to set up their account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, each Croo person agrees that they have downloaded or printed, and reviewed and agreed to, the PSP Services Agreement. Please note that DownUnder is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that DownUnder has no obligations, responsibility or liability to any Croo person or other party under the PSP Services Agreement.
To help prevent fraud and safeguard User information from the risk of unauthorised access, Company and/or the PSP may validate an account before activation. As part of the account validation, a temporary charge is placed on the account associated with the User and then refunded within 1-3 business days. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary between $0.01 to $5,000.00, depending on the estimated value of the Job and expenses.
When Client receives confirmation through the DownUnder Platform or via email that a Job has been completed, Client automatically authorises the PSP to process the Invoice. Users may be charged a one-hour cancellation fee through the PSP if you book (or accept) a Job, but cancel it before the scheduled time for performance.
Business reserves the right (but not the obligation), in its sole discretion, upon request from Client or Croo person, or upon notice of any potential fraud, unauthorised charges or other misuse of the DownUnder Platform, to (i) place on hold any Job Payment, out of pocket expenses, and/or tip or gratuity (if applicable) or (ii) refund or provide credits, or arrange for the PSP to do so.
Job Payment and fees must be paid through the PSP as indicated on the DownUnder Platform.
Users of the DownUnder Platform will be liable for any taxes required to be paid on the Jobs provided under the Agreement.
Contests and Promotional Codes
Business may from time to time provide certain promotional opportunities and contests to Users. All such promotions will be run at the sole discretion of Business, and can be activated, modified, or removed at any time by Business without advance notification. The liability of any of Business’s corporate partners pursuant to such promotional opportunities and contests shall be limited pursuant to Section 17 of these Terms and Conditions.
Promotional codes (“Promo Codes”) may be available and can be used to pay Job Payments and Business service charges and platform fees in part or in full, but may not be used to pay for reimbursement of out of pocket expenses or tips associated with a Job provided through the DownUnder Platform.
Promotional Codes
Promotional Codes are an offer by Business to reduce the amount a Client has to pay in relation to a Job Payment, service fee, and/or platform fee. Promo Codes will not affect the amount of the Job Payment a Croo person ultimately receives. The use or application of any Promo Code is solely intended as a promotional initiative and does not in any way create a relationship or engagement between Business or the Job or represent wages, fees or other amounts paid to the Croo person by Business. You agree that you will use Promo Codes in accordance with the terms of the Promo Code. Business reserves the right to withhold or deduct credits or other features or benefits obtained through the use of a Promo Code by you or any other User in the event that Business determines or believes that the use or redemption of a Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or this Agreement.
Public Areas; Acceptable Use
The DownUnder Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the DownUnder Platform, you should not share your personal contact information with other Users.
Without limitation, while using the DownUnder Platform, you may not:
· Defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and DownUnder staff, or use information learned from the DownUnder Platform or during the performance of Jobs to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other User or Business staff;
· Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Business Platform;
· Use the DownUnder Platform for any unauthorized purpose, including, but not limited to posting or completing a Job in violation of local, state, provincial, national, or international law;
· Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or Company;
· Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer;
· Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly;
· Advertise or offer to sell any goods or services for any commercial purpose through the DownUnder Platform which are not relevant to the Job services offered through the Job Platform;
· Post or complete a Job requiring a User to (i) provide ridesharing or other peer to peer transportation services, (ii) post ratings or reviews on any third party website in breach of such third party website’s terms of use, or (iii) otherwise engage in activity that is illegal or deemed dangerous, harmful or otherwise inappropriate by Business in its sole discretion;
· Conduct or forward surveys, contests, pyramid schemes, or chain letters;
· Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments;
· Post the same Job repeatedly (“Spamming”) – Spamming is strictly prohibited;
· Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the DownUnder Platform;
· Restrict or inhibit any other User from using and enjoying the Public Areas;
· Imply or state that any statements you make are endorsed by DownUnder, without the prior written consent of DownUnder;
· Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the DownUnder Platform, or the electronic addresses or personal information of others, in any manner;
· Frame or utilize framing techniques to enclose the DownUnder Platform or any portion thereof;
· Hack or interfere with the DownUnder Platform, its servers or any connected networks;
· Adapt, alter, license, sublicense or translate the DownUnder Platform for your own personal or commercial use;
· Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by DownUnder and Affiliates;
· Upload content to the DownUnder Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
· Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
· Use the DownUnder Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the DownUnder Platform as set forth herein;
· Use the DownUnder Platform to collect usernames, email addresses, or other personal information of Users by electronic or other means;
· Use the DownUnder Platform or the Job services in violation of this Agreement;
· Use the DownUnder Platform in a manner that is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Business trade secret information for public disclosure or other purposes;
· Attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the Business Platform, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
· Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number; or
· Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. DownUnder will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
Mobile App Updates and Upgrades
By installing one of the Apps, you consent to the installation of the App and any updates or upgrades that are released through the DownUnder Platform. The App (including any updates or upgrades) may (i) cause your device to automatically communicate with DownUnder’s servers to deliver the App functionality and to record usage metrics, (ii) affect App-related preferences or data stored your device, and (iii) collect personal information as set out in our Privacy Policy. You can uninstall the App at any time.
Termination and Suspension
Business may terminate or limit your right to use the DownUnder Platform in the event that we are investigating or believe that you have breached any provision of this Agreement (a “Can’t Act”), by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice.
If Business terminates or limits your right to use the DownUnder Platform pursuant to this Section, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. If Business terminates or limits your right to use the DownUnder Platform as a Client due to a User Breach, you will not be entitled to any refund of unused balance in your account.
Even after your right to use the DownUnder Platform is terminated or limited, this Agreement will remain enforceable against you. Business reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 19 of these Terms and Conditions.
Business reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the DownUnder Platform at its sole discretion. Business is not liable to you for any modification or discontinuance of all or any portion of the DownUnder Platform. Business has the right to restrict anyone from completing registration as a Croo person if Business believes such person may threaten the safety and integrity of the DownUnder Platform, or if, in Business’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the DownUnder Platform. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
Account, Password, Security, and Mobile Phone Use
You must register with Business and create an account to use the DownUnder Platform (an “Profile”). You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Business for accessing the DownUnder Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. If you are accessing and using the DownUnder Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms provided herein. Business has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to contact Business immediately.
By providing your mobile phone number and using the DownUnder Platform, you hereby affirmatively consent to Business’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (a) perform and improve upon the DownUnder Platform, (b) facilitate the carrying out of Jobs through the DownUnder Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Jobs, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming Tasks and/or in follow up to any push notifications delivered through our mobile application. Business will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Apps, texting “STOP” in response to any texts, or by emailing hello@godownunderusa.com and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing hello@godownunderusa.com and specifying you want to opt-out of calls. You understand that we may send you an email/text confirming any opt-out by you.
User Generated Content
“User Generated Content” is defined as any information and materials you provide to Business, its corporate partners, or other Users in connection with your registration for and use of the DownUnder Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that DownUnder is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that DownUnder has no obligation to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the DownUnder Platform at its sole discretion.
You hereby represent and warrant to Business that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not represent you being employed or directly engaged by or affiliated with DownUnder or purport you to act as a representative or agent of DownUnder; and (i) will not create liability for Business or cause Business to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The DownUnder Platform hosts User Generated Content relating to reviews and ratings of specific Croo people (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Business, has not been verified or approved by Business and each Client should undertake their own research to be satisfied that a specific Croo person is the right person for a Job. You agree that Business is not responsible or liable for any Feedback or other User Generated Content. Business encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Business is not obligated to investigate any remarks posted by Users for accuracy or reliability but may do so at its discretion.
You hereby grant Business a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights you have in your User Generated Content, in any media now known or not currently known in order to perform and improve upon the DownUnder Platform.
Each Croo person who provides to Business any videotape, film, recording, photograph, voice, or all related instrumental, musical, or other sound effects (collectively, “Media”), in exchange for the right to use the DownUnder Platform, hereby waives any and all moral rights in connection with such Media and irrevocably grants to Business the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
· Exhibit, distribute, display, transmit, and broadcast on any and all media, including, without limitation, the internet, any videotape, film, recording or photograph that such User provides to Business or that Business takes of Croo person, and use, reproduce, modify, or creative derivatives of such Croo person picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Similarity”);
· Reproduce in all media any recordings of such Croo person’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the DownUnder Platform;
· Use, and permit to be used, such Croo Person’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the DownUnder Platform in any media; and
· Use, and permit to be used, such Croo person’s name and identity in connection with the DownUnder Platform.
Each Croo person warrants and represents that they have the lawful authority to grant the rights set out above.
Each Croo person hereby waives all rights and releases DownUnder and Affiliates from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Croo person’s identity, likeness or voice in connection with the DownUnder Platform.
Each Croo person acknowledges that DownUnder shall not owe any financial or other remuneration for using the recordings provided hereunder by such Croo person, either for initial or subsequent transmission or playback, and further acknowledges that DownUnder is not responsible for any expense or liability incurred as a result of such Croo person’s recordings or participation in any recordings, including any loss of such recording data.
Links to Third-Party Websites
The DownUnder Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Business or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the DownUnder Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Business does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that DownUnder is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that DownUnder has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the DownUnder Platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. DownUnder expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the DownUnder Platform. You hereby agree to hold DownUnder harmless from any liability that may result from the use of links that may appear on the DownUnder Platform.
As part of the functionality of the DownUnder Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Separate Party”) by either: (i) providing your Separate Party Account login information through the DownUnder Platform; or (ii) allowing DownUnder to access your Separate Party Account, as is permitted under the applicable terms and conditions that govern your use of each Separate Party Account. You represent that you are entitled to disclose your Separate Party Account login information to DownUnder and/or grant DownUnder access to your Separate-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Separate Party Account and without obligating DownUnder to pay any fees or making DownUnder subject to any usage limitations imposed by such third-party service providers. By granting DownUnder access to any Separate-Party Accounts, you understand that (i) DownUnder may access, make available and store (if applicable) any content that you have provided to and stored in your Separate-Party Account (the “ Content”) so that it is available on and through the DownUnder Platform via your account, including without limitation any friend lists, and (ii) DownUnder may submit and receive additional information to your Separate-Party Account to the extent you are notified of this when you link your account with the Separate-Party Account. Unless otherwise specified in these Terms and Conditions, all Content, if any, shall be considered to be User Generated Content. Depending on the Separate-Party Accounts you choose, and subject to the privacy settings that you have set in such Separate-Party Accounts, personally identifiable information that you post to your Separate-Party Accounts may be available on and through your account on the DownUnder Platform. Please note that if a Separate-Party Account or associated service becomes unavailable or DownUnder’s access to such Separate-Party Account is terminated by the third-party service provider, then Content may no longer be available on and through the DownUnder Platform. You will have the ability to disable the connection between your account on the DownUnder Platform and your Separate-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE Separate-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR Seperate-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH Separate PARTY SERVICE PROVIDERS. Business makes no effort to review any Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Business is not responsible for any Content.
Worker Classification and Withholdings
As set forth in section 1, DownUnder does not perform Jobs and does not employ individuals to perform Jobs. Each user assumes all liability for proper classification of such user’s workers based on applicable legal guidelines. If a client, you indemnify and hold DownUnder and affiliates harmless, and if a Croo person, you fully and finally release DownUnder and affiliates, from all liabilities, claims, causes of action, demands, damages, losses, fines, penalties or other costs or expenses that Croo people or assistants may incur or become entitled to, whether under contract, common law, civil law, statute or otherwise, in respect of Jobs or service agreements or the use of the DownUnder platform, including with respect to misclassification of Croo people and assistants and the termination or cessation of any Jobs, service agreements, this agreement or the use of the DownUnder platform.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Business. Each User acknowledges and agrees that DownUnder does not, in any way, supervise, scope, direct, control or monitor a Croo person’s work or Jobs performed in any manner. Business does not set a Job Person’s work hours or location of work. DownUnder will not provide any equipment, tools, labor or materials needed for a particular Job. DownUnder does not provide any supervision to Users.
The DownUnder Platform is not an employment agency service or business and DownUnder is not an employer of any User. As such, DownUnder is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal, provincial or state withholdings in connection with a User’s use of the DownUnder Platform. Croo people acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Agreements and performing Jobs and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
DownUnder “Love You Lots Oath”
The DownUnder Love You Lots Oath is part of this Agreement and incorporated by reference. Croo people determine what categories they are qualified to work in, and scope the Job directly with their Client. DownUnder does not oversee, monitor or direct how a Croo person performs a Job, does not monitor Jobs or chat threads between Users, and does not otherwise oversee or assume responsibility for the actions of Users. Clients are advised to confirm with their Croo person that their Croo person is qualified to perform the Job prior to the Job taking place. DownUnder is not liable for the acts or omissions of Users, nor does DownUnder provide insurance against any losses sustained by Users. That said, DownUnder wants Users to be pleased about their experience using the DownUnder Platform and the Love You Lots Oath is in place to encourage continued use of the DownUnder Platform.
Payments made under the Love You Lots Oath are entirely discretionary, however, and subject to certain conditions, limitations and exclusions, as described in the Love You Lots Oath. The Love You Lots Oath does not supersede any of the terms set forth in the Terms and Conditions or the Lock And Key Policy, including any of the limitations on liability set forth in Sections (?) and (?) of these Terms And Conditions. In the unlikely event of a conflict with the Love You Lots Oath, these Terms And Conditions prevail over any contrary interpretation of the Love You Lots Oath. The DownUnder Love You Lots is not intended to be any sort of insurance and DownUnder is not an insurer, as such terms are understood for regulatory purposes.
Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Content”) that Users see or read through the DownUnder Platform is owned by DownUnder, excluding User Generated Content, which Users hereby grant DownUnder a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. DownUnder owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the DownUnder Platform without DownUnder’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of DownUnder and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of DownUnder, including without limitation DownUnder and DownUnder logos, are service marks owned by DownUnder. Any other trademarks, service marks, logos and/or trade names appearing via the DownUnder Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Copyright Complaints and Copyright Agent
DownUnder respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the DownUnder Platform infringe upon your copyright or other intellectual property right, please send the following information to DownUnder’s Copyright Agent at: DownUnder LLC, hello@godownunderusa.com:
· A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the DownUnder Platform where the material you claim is infringed is located. Include enough information to allow DownUnder to locate the material, and explain why you think an infringement has taken place;
· A description of the location where the original or an authorised copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
· Your address, telephone number, and e-mail address;
· A statement by you that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent, or the law;
· A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorised to act on the copyright owner’s behalf; and
· An electronic or physical signature of the owner of the copyright or the person authorised to act on behalf of the owner of the copyright interest.
Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of DownUnder and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the DownUnder Platform in accordance with these Terms and Conditions. If relevant, you may disclose the Confidential Information to your authorised employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify DownUnder in writing of any circumstances that may constitute unauthorised disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorised disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to DownUnder upon termination of this Agreement for any reason whatsoever.
The term “Confidential Info” shall mean any and all of DownUnder’s trade secrets, confidential and proprietary information, and all other information and data of DownUnder that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to DownUnder or DownUnder’s business, operations or properties, including information about DownUnder’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
Disclaimer of Warranties
(a) The Use Of The DownUnder Platform Is Entirely At Your Own Risk
The DownUnder platform is provided on an “as is” basis without warranties or conditions of any kind, either express or implied, including, but not limited to, warranties or conditions of merchantability, fitness for a particular purpose, and non-infringement. DownUnder makes no warranties or representations about the accuracy or completeness of the content provided through the DownUnder platform or the content of any sites linked to the DownUnder platform and assumes no liability or responsibility in contract, warranty or in tort for any (i) errors, mistakes, or inaccuracies of content, (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the DownUnder platform, (iii) any access to or use of our secure servers and/or any and all personal information and/or financial information stored therein; and (iv) events beyond our reasonable control.
DownUnder does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the DownUnder Platform or any hyperlinked website or featured in any banner or other advertising, and DownUnder will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, DownUnder and Affiliates do not warrant that access to the DownUnder Platform will be uninterrupted or that the DownUnder Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the DownUnder Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Job, service, information or materials provided through or in connection with the use of the DownUnder Platform. DownUnder and Affiliates are not responsible for the conduct, whether online or offline, of any User. DownUnder and Affiliates do not warrant that the DownUnder Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. DownUnder and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
Notwithstanding any feature a Client may use to expedite DownUnder selection, each Client is responsible for determining the Job and selecting their Croo person and DownUnder does not warrant any goods or services purchased by a Client and does not recommend any particular Croo person. DownUnder does not provide any warranties or guarantees regarding any Croo person’s professional accreditation, registration or license.
In addition, no individual or entity shall be a third party beneficiary of these terms. These terms are solely for the benefit of the parties to this Agreement and are not intended to and shall not be construed to give any person or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other rights (including, without limitation, any third party beneficiary rights), with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
No Liability
You acknowledge and agree that DownUnder is only willing to provide the DownUnder Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold DownUnder and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the DownUnder Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by DownUnder and Affiliates and any destruction of your User Generated Content.
Under no circumstances will DownUnder and affiliates or their corporate partners be liable for any direct, indirect, incidental, actual, consequential, economic, special or exemplary damages (including but not limited to lost profits, loss of data, loss of goodwill, service interruption, computer damage, system failure, failure to store any information or other content maintained or transmitted by DownUnder, or the cost of substitute products or services) arising in connection with your use of or inability to use the DownUnder platform or the job services, even if advised of the possibility of the same. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations may not apply to you in their entirety.
DownUnder and affiliates expressly disclaim any liability that may arise between users of its DownUnder platform. DownUnder and affiliates also do not accept any liability with respect to the quality or fitness of any work performed via the DownUnder platform.
If, notwithstanding the foregoing exclusions, it is determined that DownUnder and affiliates or their corporate partners are liable for damages, in no event will the aggregate liability, whether arising in contract, tort, strict liability or otherwise, exceed the total fees paid by you to company during the six (6) months prior to the time such claim arose, to the extent permitted by applicable law.
Some jurisdictions do not allow the exclusion of certain warranties or limitation of liability for consequential or incidental damages, so certain aspects of the limitations above may not apply to you.
Release
The DownUnder platform is only a venue for connecting users. Because DownUnder is not a party to or otherwise involved in the actual contract between users or in the completion of the task, in the event that you have a dispute with one or more users, you hereby release DownUnder and affiliates and their corporate partners from any and all claims, demands, damages (including direct, indirect, incidental, actual, consequential, economic, special, or exemplary), expenses, losses, governmental obligations, suits and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
Indemnification
You hereby agree to indemnify, defend, and hold harmless DownUnder and Affiliates, and their attorneys, insurers, independent contractors, providers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the DownUnder Platform or perform Jobs, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your account to the DownUnder Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. DownUnder reserves the right, in its own sole discretion, to assume the exclusive defence and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of DownUnder.
Dispute Resolution – Arbitration & Class Action Waiver
This section affects your legal rights and governs how you and DownUnder can bring claims against each other. This section will, with limited exception, require you and DownUnder to submit claims against each other to binding and final arbitration on an individual basis.
Informal Negotiations
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and DownUnder (each a “Claim” and collectively “Claims”), you and DownUnder agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration. This pre-arbitration negotiation shall be initiated by providing written notice to the other party—including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to DownUnder (Address TBC). If necessary to preserve a Claim under any applicable statute of limitations, you or DownUnder may initiate arbitration while engaging in the informal negotiations.
During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
After a good faith effort to negotiate, if you or DownUnder believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”).
Agreement to Binding Arbitration
In exchange for the benefits of the speedy, economical, and impartial dispute resolution procedure of arbitration, you and DownUnder mutually agree to waive your respective rights to resolution of all claims between you (except those expressly excluded below) in a court of law by a judge or jury and agree to resolve any disputes by binding arbitration on an individual basis as set forth herein.
This agreement to arbitrate contained in this Section (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of this Agreement and your relationship with Company.
Claims covered by this Arbitration Agreement include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof); the DownUnder Platform, services, or Jobs; your relationship with DownUnder; the threatened or actual suspension, deactivation or termination of your Account or this Agreement; payments made by you or any payments made or allegedly owed to you; any city, county, state or federal wage-hour law; compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress; any promotions or offers made by Business; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by DownUnder and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters; and all other federal and state statutory and common law claims.
If there is a dispute about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of this arbitration agreement), you and DownUnder agree that this threshold dispute shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disputes, except as expressly provided below.
You acknowledge and understand that you and DownUnder are waiving the right to sue in court or have a jury trial for all claims, unless expressly excluded in this arbitration agreement. This arbitration agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except those claims and disputes which by the terms of this arbitration agreement are expressly excluded from the requirement to arbitrate.
Agreement Prohibiting Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and DownUnder agree that any arbitration will be limited to the claim between DownUnder and you individually. You acknowledge and agree that you and DownUnder are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, or any other representative proceeding (“class action waiver”). Further, unless both you and DownUnder otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. Notwithstanding the foregoing, this class action waiver shall not apply to private attorney general act claims brought against company, which are addressed separately in section (d) below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. You and DownUnder agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, both you and Business will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Company initiates arbitration under this Arbitration Agreement, Company will pay all AAA filing and arbitration fees.
(ii) If a Client or Croo person files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD $10,000, Company will pay all AAA filing and arbitration fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(iii) If a Client or Croo person files a Claim in accordance with this Arbitration Agreement and the associated claim for damages exceeds USD $10,000, Business shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses, and the Client or Croo person shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which they perform Jobs, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose, however, then the allocation of fees will be governed by the applicable AAA Rules.
(iv) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(v) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Business agree otherwise, any arbitration hearings between Business and a Croo person will take place in the county of your billing address, and any arbitration hearings between Business and a Client will take place in the county in which you received Job services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
Exceptions to Arbitration
The following types of Claims may be, but are not required to be, arbitrated under the Arbitration Agreement:
· Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
· Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
· Applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
· A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 19(d) is deemed unenforceable by a court of competent jurisdiction; and
· Claims that may not be subject to arbitration as a matter of general law not pre-empted by the Federal Arbitration Act.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfil the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However, you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
Severability
Except as otherwise provided in the severability provisions in the previous sections above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
Right to Opt Out of Arbitration Agreement
If you are a Croo Person, you may opt out of the Arbitration Agreement by notifying Business in writing within thirty (30) days of your agreement to these Terms And Conditions. To opt out, you must send a written notification to Business at DownUnder hello@godownunderusa.com, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
Governing Law (NYC Law)
No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
General Provisions
Failure by Business to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Company with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” in Section 19, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 23 shall be null and void. This Agreement will inure to the benefit of Business, its successors and assigns.
Licensing
Croo people alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Jobs. Indeed, certain types of Jobs and services may be prohibited altogether, and it is the responsibility of Croo people to avoid such prohibited Jobs and services. Penalties may include fines or other enforcement. If you have questions about how local laws apply to your Tasks and services on the platform, you can and should first seek separate legal guidance.
Because DownUnder does not oversee, monitor or supervise the posting, scoping or performance of Jobs, Clients must determine for themselves whether a Croo person is qualified to perform the specific Job at hand. Clients may wish to consult their state/provincial/territorial or local requirements to determine whether certain Jobs are required to be performed by a licensed professional.
Changes to this Agreement and the DownUnder Platform
Company reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement (including the Terms And Conditions, Lock And Key Policy, and Love You Lots Oath) and review, improve, modify or discontinue, temporarily or permanently, the DownUnder Platform or any content or information through the DownUnder Platform at any time, effective with or without prior notice and without any liability to Business. Business will endeavor to notify you of material changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the DownUnder Platform. Your continued use of the DownUnder Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Business may also impose limits on certain features or restrict your access to part or all of the DownUnder Platform without notice or liability.
No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the DownUnder Platform, please contact us by email at hello@godownunderusa.com
I hereby acknowledge that I have read and understand the foregoing Terms And Conditions, as well as the Lock And Key Policy and Love You Lots Oath, and agree that my use of the DownUnder platform is an acknowledgment of my agreement to be bound by the terms and conditions of this agreement.