Experfy User Agreement
Last Update Last Update January 26, 2016 , effective January 27, 2016
This Experfy Consulting User Agreement (the "Agreement" or the “Terms”) is a contract between you (the "User") and Experfy Inc., a Delaware corporation with its principal place of business at Harvard Innovation Launch Lab, 114 Western Avenue, Boston, MA 02134 ("Experfy", "we" or "us"). You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.experfy.com (the "Site") and related software and services.
Experfy reserves the right to revise this Agreement in its sole discretion at any time by posting the changes on the Site. Changes become effective thirty (30) days after posting. Your continued use of the Site or our services after change become effective shall mean that you accept those changes. You should visit the Site regularly to ensure You are aware of the latest version of the Terms. Notwithstanding the preceding sentences of this section, no revisions to these Terms will apply to any dispute between you and the Company that arose prior to the date of such revision.
This Agreement includes and hereby incorporates by reference the agreements and policies referred to herein, as such agreements and policies may be modified by Experfy from time to time in its sole discretion. In the event of a conflict between such policies and agreements and this Agreement, this Agreement controls. Capitalized terms are defined throughout the Agreement and in Section 12.
You understand that by clicking the "Sign-up" button, or by using the Experfy Consulting Platform, you are agreeing to be bound by this Agreement. If you do not accept this Agreement in its entirety, you may not access or use the Experfy Consulting Platform. If you agree to this agreement on behalf of an entity, you represent and warrant that you have the authority to bind that entity to this Agreement. In that event, "you" and "your" will refer and apply to that entity.
1. THE EXPERFY CONSULTING PLATFORM.
1.1 Purpose of the Experfy Consulting Platform.
The Experfy Consulting Platform allows Clients and Providers to identify each other and enable them to buy and sell Services online. Under this Agreement, Experfy provides services to both Clients and Providers, including curating Clients and Providers, facilitating the formation of contracts between Clients and Providers, and managing disputes related to those contracts. Clients post jobs and invite Providers to apply. Providers create profiles within the closed platform and bid on jobs. If a Client and Provider agree on terms, a Service Contract is formed directly between such Client and Provider subject to the provisions set forth in Section 3 (Service Contract Terms Between Client and Provider). Experfy pays Providers in connection with their delivery of services through the Experfy platform. Experfy collects payment from Clients in connection with their receipt of services through the Experfy platform.
The Experfy Consulting Platform is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. User agrees that User is not (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
2. EXPERFY GENERAL USER POLICIES
2.1 Experfy Fees.
Experfy charges Providers a fee for the services of connecting them with the Clients that hire them and collecting payment for work. This fee is equal to 20% of Client's payments. If Provider elects disbursement in foreign currency, Experfy adds a conversion fee of 1.5% to the spot rate quoted by its foreign exchange vendor.
2.2 General User Obligations.
You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Site. You will not upload or attach an invalid or malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services. You agree not to "scrape" or disaggregate data from the Site (whether by manual or automated means), for any commercial, marketing, or data compiling or enhancing purpose, or to copy, re-post or re-use data from the Site for any other service. You agree not to use or provide software (except for general purpose web browsers and email clients, or software expressly licensed by us) or services that interact or interoperate with the Site, e.g. for downloading, uploading, posting, flagging, emailing, search, or mobile use.
2.3 Identity and Account Security.
Experfy reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User's identity. You authorize Experfy, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. Failure to provide information about you and your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User's Experfy account password. User agrees not to disclose this password to anyone (or, in the case of an Agency (as defined below in Section 3), not to disclose this password to anyone who is not a subcontractor of such Agency), and shall be solely responsible under all circumstances for any use of or action taken through the use of such password on the Experfy Consulting Platform. You must notify Experfy Support immediately if you suspect that your password has been lost or stolen. By using your Experfy User account, you acknowledge and agree the Experfy's account security procedures are commercially reasonable. Furthermore, the User is solely responsible for also ensuring and maintaining the secrecy and security of his or her LinkedIn account, if it is used to login to the Experfy Consulting Platform.
2.4 Disbursements to Providers
Experfy will automatically disburse funds to Providers according to the payment instructions on file with Experfy no more than one month after funds become payable (or within six months, for amounts less than $100). Funds become payable to Providers working on Hourly Contracts following the expiration of the dispute period associated with each work week. Funds become payable to Providers working on Fixed Price Contracts after Clients accept work submitted by a Provider. Clients retain the ability to change the terms of a Fixed Price Contract, including the amount of money owed on a Fixed Price Contract, until they accept the work. Providers may ask Experfy to expedite payments. Experfy reserves the right to refuse any such request and may assess a processing fee in connection with such a request.
Client shall make all payments relating to, or in any way connected with, a Service Contract (including, without limitation, bonuses) through the Experfy Consulting Platform. Any action that encourages or solicits complete or partial payment outside of the Experfy Consulting Platform is a violation of this Agreement. Should a Client or Provider be found in violation of this section of this Agreement, it will owe Experfy an amount with respect to each Service Contract equal to the greater of a) $25,000; or b) five times the applicable fees had the payments been processed through the Experfy Consulting Platform.
Notwithstanding the provisions set forth above, Users may agree to provide or receive Services outside of the Experfy Consulting Platform with Users identified through Experfy. If the Services are rendered more than three (3) years after the Client identifies the Provider through Experfy, no Experfy Fees or buyout provisions apply. If Services are rendered outside of Experfy less than three (3) years after the Client identifies the Provider through Experfy, payments for such Services will not be subject to the Experfy Fees, provided that the Client pays Experfy a "Buy-Out" amount in accordance with the procedure set forth below:
Prior to contracting outside of Experfy to receive Services from a User identified through the Experfy system, the Client will notify Experfy in writing of its intent to pay the Buy-Out fee in lieu of the Experfy Fees.
The Client will provide a good faith estimate of the Provider’s hourly rate multiplied by 2000. For example, if the provider’s annual rate were $100 per hour, then the good faith estimate would be $200,000.
The Client will pay Experfy thirty percent (30%) of the good faith estimate.
If Client fails to pay amounts due under this Agreement, whether by cancelling Client's credit card, initiating an improper chargeback, or any other means, Client's Experfy account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse Experfy for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys' fees and other costs of collection as allowed by law. In its discretion, Experfy may setoff amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
2.8 Hold on funds.
In cases of fraud, abuse or violation of this Agreement, all monies due to the Provider may be held and/or reclaimed, not just those from the Contract(s) under investigation.
For Hourly-Rate Contracts only, Clients may dispute hours by not approving Timesheets. Disputes can only address the hours billed, not the quality of the work performed or deliverables. Experfy will promptly investigate the Timesheets to determine, in its sole discretion, whether an adjustment is appropriate. Experfy's determination shall be final.
2.9 Dispute Resolution Policy.
For Hourly-Rate Contracts only, it is the Client's responsibility to review Timesheets of every Service Contract on a weekly basis before approving the billing. Once the hours are accepted by the Client, they can no longer be disputed and can only be refunded by the Provider. Disputes can only address the hours billed, not the quality of the work performed or deliverables. Experfy will promptly investigate the Timesheets to determine, in its sole discretion, whether an adjustment is appropriate. Experfy's determination shall be final.
2.10 Enforcement of Agreement and Policies.
Experfy has the right, but not the obligation, to suspend or cancel your access to the Experfy Consulting Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting Experfy's other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the Experfy Consulting Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for Experfy. Once suspended or terminated, you MAY NOT continue to use the Experfy Consulting Platform under a different account or reregister under a new account. If you attempt to use the Experfy Consulting Platform under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment method to pay for any amounts outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is canceled, you may no longer have access to any parts of the Experfy Consulting Platform, including data, messages, files and other material you keep on Experfy.
3. SERVICE CONTRACT TERMS BETWEEN CLIENT AND PROVIDER.
Unless otherwise agreed to in a writing signed by both Client and Provider, the terms and conditions of the Service Contract are as set forth in Sections 3.1 through 3.12 below ("Standard Terms"). Client and Provider may not agree to any other terms and conditions that affect the rights or responsibilities of Experfy.
Provider shall perform Services in a professional and workmanlike manner and shall timely deliver any agreed-upon Work Product.
Work performed on Hourly-Rate Contracts under a Provider's profile must be performed by the Provider represented. If the Provider wishes to subcontract with third parties to perform Services on behalf of the Provider on Hourly-Rate Contracts, the Provider must do so as a legally recognized entity with the ability to hire and/or contract (an "Agency"). Provider and Agency agree and acknowledge that Agency's employees or contract personnel are not employees of Experfy or Client. Agency is solely responsible for all wages, costs, unemployment insurance, compensation insurance, and expenses of Agency's employees or contract personnel and has the sole and exclusive right to supervise and control them. Agency acknowledges and agrees that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits of any kind from Experfy or Client.
3.3 Client Payments and Billing.
Client shall pay the agreed-upon amount for time spent (under Hourly-Rate Contracts) or the approved project (under Fixed-Price Contracts) to Experfy. For Hourly-Rate Contracts, Client is billed for hourly Provider Fees on a weekly basis. For payments under Fixed-Price Contracts, Client is billed immediately. For Timesheets that are not approved or disputed by the Client within one week of their submission by the Provider, Experfy will automatically charge the Client’s payment method on file.
3.4 Termination of a Service Contract.
Under Hourly-Rate Contracts, either party may terminate the Service Contract at any time for any or no reason. However, the Client remains obligated to pay for any time the Provider worked prior to termination.
For Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments already made. The Provider may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Provider may terminate only with the Client's consent or after the payment has been refunded.
3.5 Client Deliverables.
Client grants Provider a limited, non-exclusive, revocable (at any time, at Client's sole discretion) right to use the Client Deliverables as necessary for the performance of the Services. Client reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Client, Provider shall immediately return all Client Deliverables to the Client and further agrees to purge all copies of Client Deliverables and Work Product contained in or on Provider's premises, systems, or any other equipment otherwise under Provider's control. Within ten (10) days of Client's request, Provider agrees to provide written certification to the Client that all Client Deliverables have been returned or purged.
3.6 Work Product.
Provider agrees to assign all discoveries and inventions, which Provider makes or develops as a result of performing the Service Contract during the Term, alone or in conjunction with any other party (all of the foregoing being hereinafter referred to as the “Inventions”). The Provider, however, is unable to assign rights to Pre-Existing IP. Only IP created specifically for and paid for by the Client will be assignable to the Client. The Provider hereby agrees that, in consideration of the Client's agreement to engage Provider as a consultant and Provider’s compensation for the Services rendered to the Client, Provider shall not reuse components of the Work Product in the Client's Field of Interest. The Client will specify its Field of Interest in the project description narrative when posting the Project on the Experfy Consulting Platform. Inventions, as defined above, shall be owned by Provider until payment has been made by Client, at which time Provider will be deemed to have assigned all Inventions to Client.
3.7 Worker classification.
Client assumes all liability for proper classification of Providers as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Client and Provider. Provider does not have authority to enter into written or oral - whether implied or express - contracts on behalf of Client. Provider acknowledges that Experfy does not, in any way, supervise, direct, or control Provider's work or Services performed in any manner. Experfy does not set Provider's work hours and location of work, nor is Experfy involved in determining if the compensation will be set at an hourly or fixed rate or in setting the particular rate for a service contract. Experfy will not provide Provider with training or any equipment, labor or materials needed for a particular Contract. Experfy will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Client and Provider will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Provider's performance of Services. For Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Provider. A Provider classified as independent contractor is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client. For Contracts classified as employer-employee relationships, Client will manage the Service Contract through the payrolling program made available on the Experfy Consulting Platform by a third-party payroll provider, where the Provider becomes an hourly employee of such third-party payroll provider and Provider and Client enter into appropriate additional agreements. Client and Provider agree to indemnify, hold harmless and defend Experfy from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Provider was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Provider was misclassified (including, but not limited to, taxes, penalties, interest and attorney's fees), any claim that Experfy was an employer or joint employer of Provider, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.
3.8 Audit Rights
Client and Provider each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to Experfy upon request. Experfy, or Experfy's advisors or agents, shall have the right, but not the obligation, to routinely, but no more frequently than annually, audit Provider's operations and records to confirm compliance. Nothing in this provision should be construed as providing Experfy with the right or obligation to supervise or monitor the actual Services performed by Provider.
3.9 Third Party Beneficiary
Experfy is hereby named as a third party beneficiary of each Service Contract.
Service Contracts shall be governed by Sections 6 (Confidential Information), 11 (General), and 12 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
3.11 Entire Agreement.
The terms and conditions set forth in this Section 3 and any additional or different terms expressly agreed by Client and Provider shall constitute the entire agreement and understanding of Client and Provider with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
4. ACKNOWLEDGMENTS BY USER OF EXPERFY'S ROLE.
4.1 Service Contracts.
User expressly acknowledges, agrees and understands that: (i) the Experfy Consulting Platform is merely a venue where Users may act as Clients or Providers; (ii) Experfy is not a party to any Service Contracts between Clients and Providers; (iii) User recognizes, acknowledges and agrees that User is not an employee of Experfy and that Experfy does not, in any way, supervise, direct, or control User's work or Services; (iv) Experfy shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) Experfy has no control over Providers or over the Services promised or rendered by Providers; and, (vi) Experfy makes no representations as to the reliability, capability, or qualifications of any Provider or the quality, security or legality of any Services, and Experfy disclaims any and all liability relating thereto.
4.2 Proprietary Rights.
Experfy and its licensors reserve all Proprietary Rights in and to the Experfy Consulting Platform. User may not use the Experfy Consulting Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement. Experfy reserves the right to withdraw, expand and otherwise change the Experfy Consulting Platform at any time in Experfy's sole discretion. User shall not be entitled to create any "links" to the Experfy Consulting Platform, or "frame" or "mirror" any content contained on, or accessible through, the Experfy Consulting Platform, on any other server or internet-based device.
4.3 Experfy's Compensation.
All Experfy Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
4.4 Experfy as a Limited Agent
From time to time, a User may ask Experfy to provide a physical or manually signed copy of this Agreement, a Service Contract, or an ancillary document (for example, to enable a User to withdraw payments from User's foreign bank account). User hereby appoints Experfy as its agent for the limited purpose of executing documents that confirm User's activities on the Experfy Consulting Platform. Experfy will act on User's behalf and in a clerical capacity, without in any way restricting Experfy's rights or expanding Experfy's obligations under this Agreement or any Service Contract. Each User appoints Experfy as its agent to execute an Act of Acceptance or equivalent instrument on the User's behalf documenting payments made or to be made to Providers or to Experfy, if another User so requests.
5. INVOICES AND PAYMENT METHODS.
5.1 Formal Invoices and Taxes.
Experfy shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Provider Fees. Instead, Provider shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Provider Fees and for issuing any invoices so required. Provider shall also be solely responsible for: (a) determining whether Provider or Experfy is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Provider Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Experfy, as appropriate; and (b) determining whether Experfy is required by applicable law to withhold any amount of the Provider Fees, notifying Experfy of any such requirement and indemnifying Experfy (either by permitting Experfy to offset the relevant amount against a future payment of Provider Fees or by refunding to Experfy the relevant amount, at Experfy's sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. Experfy shall have the right, but not the obligation, to audit and monitor Provider's compliance with applicable tax laws as required by this Section 5.1. Further, in the event of an audit of Experfy, Provider agrees to promptly cooperate with Experfy and provide copies of Provider's tax returns, and other documents as may be reasonably requested for purposes of such audit.
5.2 Payment Methods.
Client hereby authorizes Experfy to run credit card authorizations on all credit cards provided by Client, to store credit card details as Client's method of payment for Services, and to charge Client's credit card (or any other form of payment authorized by Experfy or mutually agreed to between Client and Experfy). Experfy may, in its sole discretion, deviate from its typical billing cycle for Hourly-Rate Contracts and charge Client for any and all Timesheets at any time.
5.3 Not an escrow service
Experfy does not operate an Escrow service. Experfy does have, however, a special, non-compulsory feature, which allows controlled payments to be made with respect to a project to a Provider. Depending on the agreement of the Client and Provider, the Client can create an advance payment which will remain pending until: (a) the Client and the Provider agree that the funds should be released to the Provider; (b) until the Client and the Provider have concluded the process of the dispute resolution (as defined in 2.9); (c) until the Client instructs Experfy to pay a Provider that performed a service for the Client; or (d) until the Client acknowledges that the Provider has completed the service fully and satisfactory.
5.4 Payment Guarantee.
Experfy does not guarantee payment to Providers working on Hourly-Rate Contracts unless its timesheet has been approved by the Client and payment has been made, the time represented is captured online using the Experfy Timesheets software, and the work performed and captured pertains directly to the Service Contract billed (the "Payment Guarantee"). Determination of whether these criteria have been met is at the sole discretion of Experfy. The Payment Guarantee will not apply to Providers or Contracts in violation of this Agreement, where Provider does not meet clear specifications of the Service Contract, where the Provider is aware of or complicit in another User's violation of this Agreement, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.
6. CONFIDENTIAL INFORMATION.
To the extent a Client or Provider provides Confidential Information to the other, the recipient shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not: (i) disclose Confidential Information to anyone except, in the case of Experfy, to any Client or Provider engaged in a Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through Experfy Consulting Platform for use by Provider).
If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Client's or Provider's written request (which may be made at any time at Client's or Provider's sole discretion), Client or Provider (as the case may be) shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Provider, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this Section 6.2 within ten (10) days after the receipt of disclosing party's written request to certify.
Without limiting Section 6.1 (Confidentiality), Client and Provider shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a Contract.
7. WARRANTY DISCLAIMER.
EXPERFY MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, EXPERFY CONSULTING PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPERFY DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 10.2 (TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST EXPERFY WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL EXPERFY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF EXPERFY TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY EXPERFY FEES RETAINED BY EXPERFY WITH RESPECT TO CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR PROVIDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
9.1 Proprietary Rights.
Each User shall indemnify, defend and hold harmless Experfy and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each an "Indemnified Party" for purposes of this Section 9) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party.
9.2 Indemnification by Client.
Each Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Client's use of Services, including without limitation claims by or on behalf of any Provider for Worker's Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Client and a Provider.
9.3 Indemnification by Provider.
Each Provider shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Provider's provision of Services, or (ii) any Service Contract entered into between such Provider and a Client.
10. TERM AND TERMINATION.
This Agreement remains in effect until terminated in accordance with Section 10.2 below.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending User's account), provided, that any such termination for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.
10.3 Consequences of Termination.
Termination shall not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be charged to Client's credit card or other form of payment pursuant to Section 5.2 (Payment Methods). Subject to Section 2.9 (Dispute Resolution Policy), Experfy shall pay Provider, in accordance with the provisions of Section 5 (Invoices and Payment Methods), for all time recorded in the Time Logs incurred prior to the effective date of the termination.
Sections 4 through 12 of this Agreement shall survive any termination thereof.
11.1 Entire Agreement.
This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.2 Side Agreements.
Section 11.1 notwithstanding, Clients and Providers may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand Experfy's obligations or restrict Experfy's rights under this Agreement.
User shall not violate any laws or third party rights on or related to the Experfy Consulting Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties' Proprietary Rights.
11.4 Notices: Consent to Electronic Notice.
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Experfy Consulting Platform. Notices hereunder shall be invalid unless made in writing and given (a) by Experfy via email (in each case to the email address that you provide), (b) a posting on the Experfy Site or (c) by you via email to Experfy’s support team or to such other addresses as Experfy may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
No modification or amendment to this Agreement shall be binding upon Experfy unless in a written instrument signed by a duly authorized representative of Experfy. For the purposes of this Section 11.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.
11.6 No Waiver.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
User may not assign this Agreement, or any of its rights or obligations hereunder, without Experfy's prior written consent in the form of a written instrument signed by a duly authorized representative of Experfy (and, for the purposes of this Section 11.7, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). Experfy may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
11.9 Dispute Resolution; Arbitration; Personal Jurisdiction and Venue.
If a dispute arises between you and Experfy or any Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Experfy and our Affiliates agree that we will resolve any claim or controversy at law or equity that arises between us out of this Agreement.
11.9.1 Law and Forum for Disputes.
For incidents of non-payment concerning amounts $7,000 or less may be filed in a Small Claims Court and the Court must be located in Massachusetts if Experfy is one of the parties in the lawsuit. For all other disputes, including non-payment of amounts greater than $7,000, you agree that this Agreement shall be governed by the Federal Arbitration Act and the internal substantive laws of the Commonwealth of Massachusetts, REGARDLESS OF YOUR COUNTRY OR STATE OF ORIGIN OR WHERE YOU ACCESS THE SITE, and regardless of any principle of law that may provide for the application of the law of another jurisdiction. You agree that any claim or dispute you may have against Experfy or an Affiliate must be resolved by a court located in Middlesex County, Massachusetts, or as described in the “Mandatory Arbitration” subsection below. You hereby submit to the exclusive personal jurisdiction of the courts located within Middlesex County, Massachusetts for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, you and Experfy retain the right to seek injunctive or other equitable relief in any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below including any provisional relief required to prevent irreparable harm.
11.9.2 Informal Dispute Resolution.
Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first contact Experfy to inform its Customer Support team of your complaint and seek resolution. This notice of dispute must include: your name, pertinent account information, a brief description of your dispute, and contact information so that Experfy may evaluate the dispute and attempt to informally resolve it. Experfy will have 60 days from the date of your original complaint to informally resolve the dispute, which if successful will avoid the need for further action.
11.9.3 Mandatory Arbitration and Class Action/Jury Trial Waiver.
For disputes involving non-payment of $7,000 or more and/or any other type of claim, in the unlikely event that Experfy has not been able to resolve a dispute it has with you within 60 days of your original informal claim, we each agree to resolve any Claim by binding arbitration before an arbitrator from Judicial Mediation and Arbitration Services (“JAMS”) located in Boston, Massachusetts under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com.
11.9.4 Starting the Arbitration.
The party wishing to initiate arbitration must submit a written demand for arbitration. If you initiate a claim, you will submit the demand by certified mail to Experfy, Inc., Harvard Innovation Launch Lab, 114 Western Avenue, Boston, Massachusetts, 02134, USA, Attention: General Counsel. If Experfy initiates a claim, Experfy will serve a demand for arbitration upon the Client or Provider by email to the email address on file with Experfy, and may send a copy by certified mail to that Client or Provider’s last known address (or to another address specified by the Client or Provider in its notice of dispute of its informal claim). You agree to service of process in that manner. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought. The demand must be sent within the time limits that would apply to a party’s claim if it were being resolved in a court and not by arbitration. The sent date will be determined by the date of postmark on the envelope in which the demand is mailed.
The arbitrator shall resolve all disputes regarding the timeliness or sufficiency of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
11.9.5 Selecting a Neutral Arbitrator.
Selection by Mutual Agreement of the Parties. The Arbitrator shall be selected by mutual agreement of the parties. Unless the parties agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted.
Selection When Parties Cannot Mutually Agree. If the parties have not agreed upon an arbitrator within 30 days of the service of the arbitration demand, then Experfy will file the initiating party’s demand with JAMS. JAMS shall then appoint an arbitrator who shall act under this Agreement with the same force and effect as if the parties had selected the arbitrator by mutual agreement.
The arbitration will be conducted in Boston, Massachusetts (or the nearest JAMS Office to Boston) unless you and Experfy agree otherwise.
Payment. Payment of the fees shall be governed by the organization that administers the arbitration.
11.9.6 How Arbitration Proceedings Are Conducted.
In arbitration, the parties have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses. Any disputes in this regard shall be resolved by the Arbitrator, provided, however, that to the extent discovery and presentation of witnesses and evidence will be limited or unavailable under applicable law if the dispute were brought in court, such limitations shall also apply in arbitration.
All parties will have the right to be represented by an attorney in any arbitration under this Agreement. However, neither party is required to be represented by an attorney. Each party shall pay the fees for his, her or its own attorneys, and any related expenses, including the expenses of witnesses called by such party, depositions, or any other costs that would otherwise be borne by a party were the claims brought in court, subject to any remedies to which that party may later be entitled to under applicable law.
As noted above, the arbitration proceedings will be conducted under the Optional Expedited Arbitration Procedures then in effect for JAMS except as provided herein. Notwithstanding anything in the JAMS rules, the Arbitrator will not have the authority to determine whether this Agreement or any portion of it is enforceable, revocable, or valid. Additionally, nothing in the JAMS rules should be construed or interpreted to allow for class, collective or representative arbitration. If you are unable to access or print the JAMS rules, you may obtain a print out of the rules by requesting one from Experfy’s support team.
11.9.7 The Arbitration Hearing and Award.
The parties will arbitrate their dispute before the Arbitrator, who will confer with the parties regarding the conduct of the hearing and resolve any disputes the parties have in that regard. The Arbitrator will specify whether the arbitration proceeding will be conducted by telephone, online, in person, or solely based upon written submission. The arbitration will not require a personal appearance of the parties or witnesses unless mutually agreed by the parties. Within 30 days of the close of the arbitration hearing, any party will have the right to prepare, serve on the other party, and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, including an award of attorneys’ fees, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented and decided by the Arbitrator. No remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this agreement. Within 30 days after the submission of the briefs or as soon as possible thereafter, the Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the content or results of any arbitration hereunder without the prior written consent of all parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. Further, in the event the Arbitrator makes an award in your favor that is greater than Experfy’s last written offer, Experfy will pay you the greater of the award.
11.9.8 Class Action and Jury Trial Waiver.
All claims must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this Agreement, you and Experfy are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
11.9.9 Right to Opt-Out of Arbitration and Class Action / Jury Trial Waiver.
Action is required to protect your legal right to sue Experfy in court or to participate in any way in a class action, collective action, private attorney general action or other representative proceeding. You may opt out of the foregoing arbitration and class action / jury trial waiver provision of this Agreement by notifying Experfy in writing within 30 days of the effective date of this agreement or your first visit to the site, whichever is later. Such written notification must be sent to Experfy, 184 Green Street, Suite 1, Cambridge, Massachusetts 02139, USA, Attention: General Counsel and must include: (1) your individual and/or your company profile URL(s) on the Experfy Consulting Platform, (2) your name, (3) address, (4) telephone number, (5) email address, and (6) a clear statement indicating that you do not wish to resolve disputes 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.
If any clause within this section (11.10) is found to be illegal or unenforceable, that clause will be severed from this section and the remainder of the section will be given full force and effect, except that in the event of unenforceability of the Class Action/Jury Trial Waiver, the entire arbitration agreement shall be shall be unenforceable.
11.9.11 Improperly Filed Claims.
If the Arbitrator determines that a Claim under these provisions was filed for an improper purpose or was frivolous, the Arbitrator shall award the non-offending party liquidated damages in the full amount attorneys’ fees and costs plus an administrative fee based on the time expended on the case.
11.10 Prevailing Language.
The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
"Agency" means a legally recognized entity with the ability to hire and/or contract.
"Affiliate" means a wholly-owned subsidiary of Experfy, Inc.
"Claim" means any controversy, dispute or claim arising out of or relating to this Agreement, including but not limited to a Service Contract.
"Client" means any User utilizing the Experfy Consulting Platform to request Services to be performed by a Provider. From time to time, Experfy may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to Experfy when acting in this way.
"Client Deliverables" means instructions, requests, intellectual property and any other information or materials that a Provider receives from a Client for a particular Service Contract.
"Confidential Information" means Client or Provider Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Provider or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party's obligations of confidentiality; or (d) was independently developed by User without use of Confidential Information.
"Effective Date" means the date of acceptance of this Agreement.
"Fixed-Price" means a fixed fee agreed between a Client and a Provider, prior to the commencement of a Contract, for the completion of all Services requested by Client for such Contract.
"Fixed-Price Contract" means a Service Contract for which Client is charged a Fixed-Price.
"Provider" means any company or individual User utilizing the Experfy Consulting Platform to offer Services to Clients.
"Provider Deliverables" means instructions, requests, intellectual property and any other information or materials that a Client receives from a Provider for a particular Service Contract.
"Provider Fees" means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours recorded by Provider in Timesheets, multiplied by the Hourly Rate; (b) for a Fixed-Price Contract, the Fixed-Price; and (c) any bonuses paid or other payments made by a Client for a Service Contract.
"Hourly Rate" for a Service Contract means, in respect of a Provider, the hourly rate specified for that Provider in the Experfy Consulting Platform.
"Hourly-Rate Contract" means a Service Contract for which Client is charged based on the Hourly Rate.
"Indemnified Party" means Experfy and its subsidiaries, affiliates, officers, agents, employees, representatives and agents.
"Moral Rights" means any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights."
"Experfy Consulting Platform" means the online platform operated by Experfy, including related software and services, that allows Clients and Providers to identify each other and enable them to buy and sell Services online.
"Payment Guarantee" means the guaranteed payment to Providers once the Provider’s Timesheets have been approved by the Client and payment has been made to Experfy. The time represented is captured online using the Experfy Timesheets software, and the work performed and captured pertains directly to the Service Contract billed.
"Payment Period" shall mean the one-week period beginning on Monday at 12:00 AM UTC.
"Pre-Existing IP" means pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Provider or a third party including, without limitation, code written by proprietary software companies or developers in the open source community.
"Proprietary Rights" means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
"Service Contract" means a particular project or set of ongoing tasks for which a Client has requested Services to be performed by a Provider and the Provider has agreed on the Experfy Consulting Platform.
"Services" means web development, software development, writing, translation, administrative, marketing, design customer service, sales, data entry, general business services or any other human services.
"The Site" means our website located at www.experfy.com.
"Timesheets" refers to Experfy’s online Timesheets software in compliance when with Experfy's then-current Policies, for the Services performed in respect of a Contract.
"User" means (1) a person who is a using the Site on his or her own behalf, or (2) a person who is using the Site on behalf of a company or organization.
"Work Product" means any tangible or intangible results or deliverables that Provider agrees to create for, or actually delivers to, Client as a result of performing the Services on a particular Service Contract, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any intellectual property developed in connection therewith.