EFFECTIVE DATE: January 1, 2021
PLEASE REVIEW THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER CONTAINED HEREIN CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH FLIPTREE ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
All references to "you" or "your", as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and "you" and "your" herein shall refer to that entity, its officers, directors, employees, agents, and investors.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate disclosures or in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
FlipTree may amend the Terms from time to time. FlipTree reserves the right, in its sole discretion, to amend these Terms, and any other documents incorporated by reference herein, at any time and without prior notice. Amendments will be effective upon FlipTree's posting of such updated Terms at this location. You will be required to accept the amended Terms to continue to use the Platform. Your continued access or use of the Platform after such posting confirms your consent to be bound by the Terms, as amended. IF YOU DO NOT AGREE, YOU MAY NOT ACCESS OR USE THE PLATFORM.
As detailed in Section 3 entitled "ACCESS AND USE OF THE PLATFORM" and Section 17 entitled "USER CONTENT", IF YOU ARE A SERVICE PROVIDER, YOU UNDERSTAND AND AUTHORIZE FLIPTREE TO USE YOUR INFORMATION TO CONDUCT BACKGROUND CHECKS THROUGHOUT YOUR RELATIONSHIP WITH FLIPTREE.
2. KEY TERMS
"Platform" means all FlipTree websites, mobile or other applications, software, processes and any other services provided by or through FlipTree, which enable Service Recipients to connect to Service Providers, and Service Providers to connect to Service Recipients.
"Application" (each a "Application" and, collectively, the "Applications") means mobile or other applications.
"User" (each a "User" and, collectively, the "Users") means a person or entity who completes FlipTree's Account registration process or a person or entity who submits or receives a request through FlipTree, including but not limited to Service Recipients and Service Providers.
"Account" (each a "Account and, collectively, the "Accounts") or "User Account" (each a "User Account" and, collectively, the "User Accounts") means password-protected personal account of a User on the Platform.
"Content" means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, Service requests, quotes, message threads, reviews, scheduling and calendar information, and other information or materials available on or through the Platform.
"FlipTree Content" means all Content FlipTree makes available on or through the Platform, including any Content licensed from a third party, but excluding User Content.
"User Content" means all Content submitted, posted, uploaded, published, or transmitted on or through the Platform by any User or other User of the Platform, including but not limited to photographs, profile information, descriptions, postings, reviews, requests, messages, and payments made through the Platform, but excluding FlipTree Content and Feedback.
"Collective Content" means User Content and FlipTree Content together.
"Service" (each a "Service" and, collectively, the "Services") means the service listed, quoted, scheduled, offered or provided by Service Provider, or sought, scheduled or received by Service Recipient, through the Platform.
"Service Recipient" (each a "Service Recipient" and, collectively, the "Service Recipients") means a User who is registered to receive quotes for Services, requests quotes for Services, or otherwise uses the Platform to receive, pay for, review, or facilitate the receipt of Services.
"Customer" (each a "Customer" and, collectively, the "Customers") means a Service Recipient.
"Service Provider" (each a "Service Provider" and, collectively, the "Service Providers") means a User who is registered to send quotes for Services, sends quotes for Services, or otherwise uses the Platform to offer, provide, receive payment for, review, or facilitate the provision of Services.
"Job Fee" means fee for a Service based on the hourly rate proposed by Service Provider on the Platform, and the number of hours quoted by the Service Provider or requested by the Service Recipient.
"Payment Method" (each a "Payment Method" and, collectively, the "Payment Methods") means a current, valid, accepted method of payment submitted by User such as credit, debit or prepaid card, as may be updated from time to time.
"Payout Method" (each a "Payout Method" and, collectively, the "Payout Methods") means a current, valid, accepted method of payout submitted by Service Provider such as bank account, as may be updated from time to time.
"Subscription" (each a "Subscription" and, collectively, the "Subscriptions") means a monthly subscription of Service Provider access to the Platform by the Service Provider.
"Device" (each a "Device" and, collectively, the "Devices") or "Mobile Device" (each a "Mobile Device" and, collectively, the "Mobile Devices") means Apple iOS or Android smartphone capable of accessing the Platform.
3. ACCESS AND USE OF THE PLATFORM
Access to and use of the Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that: (a) you are at least 18 years old, are of legal age to form a binding contract with FlipTree in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts; (b) you have the right, authority and capacity to enter into this Agreement; and (c) if you are using the Platform on behalf of a company, entity, or other organization, then you represent and warrant that you are an authorized representative of that entity with the authority to bind that entity to these Terms, and agree to be bound by these Terms on behalf of that entity. IF YOU DO NOT MEET ALL OF THESE REQUIREMENTS, THEN YOU MAY NOT ACCESS OR USE THE PLATFORM.
You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Platform, and you may only access or use the Platform for lawful purposes. You may be asked to provide proof of identity or other method of identity verification to access or use the Platform and/or Services, and you agree that you may be denied access to or use of the Platform and/or Services if you refuse to provide proof of identity or other method of identity verification.
FlipTree is not in the business of providing Services. YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN SERVICES THROUGH THE USE OF THE PLATFORM DOES NOT ESTABLISH FLIPTREE AS A PROVIDER OF SERVICES. Users of the Platform contract for the Services directly with other Users. FlipTree is not a party to any contracts for the Services. The Platform facilitates these contracts by supplying a medium through which Service Recipients can connect with Service Providers, schedule the Services, and make payments for the Services directly from the Service Recipient to the Service Provider. Notwithstanding the foregoing, Service Recipients may not circumvent the Platform by using the Platform to connect with Service Providers and then engage those Service Providers for Services outside of the Platform, or Service Providers may not circumvent the Platform by using the Platform to connect with Service Recipients and then engage those Service Recipients for Services outside of the Platform.
SERVICE PROVIDERS UNDERSTAND AND AGREE THAT THEY ARE INDEPENDENT CONTRACTORS (INDIVIDUALS OR SOLE PROPRIETORS WITH SSN) OF SERVICE RECIPIENTS, AND NOT EMPLOYEES, SUBCONTRACTORS OR SERVICE PROVIDERS OF FLIPTREE. Service Providers acknowledge that they set or confirm their own prices, provide their own equipment, and determine their own work schedule. FlipTree does not control, and has no right to control, the services a Service Provider provides (including how the Service Provider provides such Services) if the Service Provider is engaged by a Service Recipient or any other person, except as specifically noted herein. Service Providers understand and agree that using the Platform does not guarantee that Service Recipients will engage them for Services.
FlipTree, as permitted by applicable laws, obtains background check reports regarding Service Providers, and we may limit, block, suspend, deactivate, or cancel a Service Provider's account based on the results of such a check. As a Service Provider, you agree and authorize us to use your personal information to obtain such reports from FlipTree's third party providers throughout your relationship with FlipTree.
Unless otherwise disclosed, Service Providers are deemed to be uncertified or unlicensed. Please note that in certain markets Service Provider may be required to have a license to perform certain Services that will exceed a monetary threshold. For example, regulations applicable in certain markets require a license for work that will total more than $500.00. Accordingly, Service Recipients must determine for themselves whether a Service Provider is qualified to perform the requested Service. Service Recipients should consult their state or local requirements to determine whether certain Services are required to be performed by a licensed professional.
Services ordered through the Platform may include pickup, delivery, installation, and/or assembly of items obtained from a third party ("Merchandise"). FlipTree does not provide and is not responsible for Merchandise.
ANY DECISION BY A USER TO OFFER OR ACCEPT SERVICES THROUGH THE PLATFORM IS A DECISION MADE IN SUCH USER'S SOLE DISCRETION. It is entirely up to the Service Recipient to evaluate the Service Provider and the Service Provider's qualifications, and up to the Service Provider to evaluate the job ordered. EACH SERVICE PROVIDED BY A SERVICE PROVIDER TO A SERVICE RECIPIENT SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN THAT SERVICE PROVIDER AND SERVICE RECIPIENT. FlipTree makes no representation and is not responsible for the performance of Service Providers, nor does it have control over or make representations regarding the quality, timing, legality, failure to provide, or any other aspect whatsoever relating to any Services. FlipTree does not have control over the quality, timing or legality of Services delivered by Service Providers. FLIPTREE HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICES PROVIDED TO SERVICE RECIPIENTS BY SERVICE PROVIDERS, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANT OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE. Except as otherwise set forth herein, FlipTree is not affiliated with, endorsed or sponsored by any Service Provider.
4. EXCLUDED SERVICES
Users hereby agree not to schedule or perform any of the following as Services through the Platform (each a "Excluded Service" and, collectively, the "Excluded Services"):
a. Services performed by health professionals, medical professionals, financial advisers, or investment advisors.
b. Services related to childcare (for example, babysitting), eldercare or lifeguarding services.
c. Services that make the User unsafe or uncomfortable.
d. Services that involve the handling of weapons, explosives or hazardous materials.
e. Services that involve the transportation of and ridesharing among our Users.
f. Services that are illegal or criminal in nature in the state or locality in which they are posted or take place.
g. In-person Services for Services marked "online" on the Platform.
5. YOUR LICENSE TO USE THE PLATFORM
License: The Platform is licensed, not sold, to you for use only under these Terms. Subject to your complete and ongoing compliance with these Terms, FlipTree grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display Collective Content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your: (a) access to and participation in the Platform on compatible, authorized devices that you own or control; and (b) access and use of any content, information and related materials that may be made available through the Platform. Any rights not expressly granted herein are reserved by FlipTree and FlipTree's licensors.
Restrictions: You may not: (a) modify, alter, reproduce, or distribute the Platform in part or entirety; (b) remove any copyright, trademark or other proprietary notices from any portion of the Platform; (c) use, reproduce, copy, adapt, modify, prepare derivative works based upon, distribute, redistribute, license, sublicense, rent, lease, lend, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Collective Content except as expressly permitted by FlipTree; (d) attempt to disable or circumvent any security or other technological measure designed to protect the Platform or any content available through the Platform except as expressly permitted in these Terms; (e) decompile, reverse engineer, disassemble the Platform or create derivate works; (f) link to, mirror or frame any portion of the Platform; (g) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Platform or unduly burdening or hindering the operation and/or functionality of any aspect of the Platform; or (h) attempt to gain unauthorized access to or impair any aspect of the Platform or its related systems or networks.
The Platform and Collective Content are provided to you AS IS. If you download or print a copy of Collective Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by FlipTree or its licensors, except for the licenses and rights expressly granted in these Terms. The Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by FlipTree, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. Except as permitted herein, you must not access or use for any commercial purposes any part of the Platform or any services or materials available through the Platform. If you breach these license restrictions or otherwise exceed the scope of the licenses granted in these Terms, then: (a) you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights; (b) your right to use the Platform will cease immediately; and (c) you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Platform or any content on the Platform is transferred to you, and FlipTree reserves all rights not expressly granted. Any use of the Platform not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark and other laws.
Ownership: The Platform and all rights therein are and shall remain FlipTree's property or the property of FlipTree's licensors. Neither these Terms nor your use of the Platform convey or grant to you any rights: (a) in or related to the Platform except for the limited license granted above; or (b) to use or reference in any manner FlipTree's company names, logos, product and service names, trademarks or services marks or those of FlipTree's licensors. We may update the content on this Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Platform may be out of date at any given time, and we are under no obligation to update such material.
6. ACCOUNT REGISTRATION AND SECURITY
In order to use the Platform, you must register for and maintain an active Account. Account registration requires you to submit to FlipTree certain personal information, such as your name, email address, and photograph. For Service Recipient access and/or to apply for Service Provider access, you are required to have address on your profile. You agree to provide accurate, current, and complete information during the registration or request submission process and at all other times when you use the Platform, and to update information to keep it accurate, current, and complete. You may register for an Account using certain third party account and log-in credentials (your "Third-Party Site Password") such as your Facebook, Google or Apple credentials. You are solely responsible for safeguarding your Account password and, if applicable, your Third-Party Site Password. You are solely responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Platform. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. FlipTree is not liable for any losses by any party caused by an unauthorized access or use of your Account. Notwithstanding the foregoing, you may be liable for the losses of FlipTree or others due to such unauthorized use. We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement. FlipTree may, from time to time, access your account to make certain changes that you request or remove prohibited information from the Platform. Unless otherwise permitted by FlipTree in writing, you may only possess one Account. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Platform. You may not in your access or use of the Platform cause nuisance, annoyance, inconvenience, or property damage to any other party. You may be asked to provide proof of identity or other method of identity verification to use the Services, and you agree that you may be denied access to or use of the Platform and/or Services if you refuse to provide proof of identity or other method of identity verification.
No joint venture, partnership, employment, agency, or implied relationship exists between you and FlipTree as a result of this Agreement or use of the Platform.
8. SERVICE PROVIDER REPRESENTATIONS AND WARRANTIES
Insurance: As a Service Provider, you acknowledge and agree that it is your responsibility to maintain in full force and effect adequate workers' compensation (or, if permitted by law, occupational accident insurance), unemployment, liability, and other forms of insurance with policy limits sufficient to protect and indemnify FlipTree and its affiliates and subsidiaries, and their respective officers, directors, employees, agents and investors, licensors, partners, members, controlling persons, and successors and assigns, from any losses resulting from the conduct, acts, or omissions of you or your employees, agents, contractors, or subcontractors.
Service Provider Assistants: Before any Services are performed by any employees, agents, assistants, contractors, and subcontractors or other personnel engaged by a Service Provider, the Service Provider shall require any such individuals to become a registered, approved Service Provider on the Platform pursuant to FlipTree policies as described herein, and are properly and fully qualified and experienced, and bonded, and insured, as required by applicable laws or regulations to which they may be subject to in the jurisdiction(s) in which they offer their Services and in relation to the specific job they are performing. Service Providers that utilize non-registered, non-approved personnel to assist with a Service could have their permission to access the Platform revoked. Each Service Provider assumes full and sole responsibility for the payment of all compensation, benefits and expenses of helpers, assistants, subcontractors and/or other personnel, if any, and for all required and applicable state and federal income tax withholdings as to the Service Provider and all persons engaged by the Service Provider in the performance of the Services.
Equipment: As a Service Provider, you are solely responsible for any costs or expenses incurred by you in connection with the performance of the Services, and in no event shall FlipTree reimburse, or be required to reimburse, you for any tools, materials, costs or expenses used in connection with the Services. You shall furnish and maintain, at your own expense, the tools, equipment, supplies, and other materials used to perform the Services. You, at your sole discretion, shall determine what equipment, supplies, and materials are necessary to perform the Services, and where, when, and at what cost, to purchase or maintain any necessary equipment, supplies, tools, and materials.
Non-Circumvention: You agree not to circumvent the platform by soliciting, scheduling and/or paying for services outside the platform. Service Recipients may not circumvent the Platform by using the Platform to connect with Service Providers and then engage those Service Providers for Services outside of the Platform, or Service Providers may not circumvent the Platform by using the Platform to connect with Service Recipients and then engage those Service Recipients for Services outside of the Platform. Within three months after the last time Service Provider provides Services to a Service Recipient as arranged though the Platform, Service Provider agrees not to solicit or provide any Services to the same Service Recipient other than as arranged through the Platform. Service Provider shall be liable for the Job Fee for Services set forth in Section 10 entitled "JOB FEE FOR SERVICES" for all services provided to Service Recipients in breach of the previous sentence, in addition to all other remedies provided by this Agreement and applicable law, including injunctive relief. Service Provider agrees to indemnify FlipTree from any attorneys' fees and costs it incurs in collecting its fees from a Service Provider that breaches this non-circumvention provision.
Reimbursement of Resolution Costs: Notwithstanding anything set forth herein to the contrary, you further represent, warrant, and agree: (a) to pay all out-of-pocket expenses incurred by FlipTree in connection with the resolution of any claim resulting from a Service you performed for a Service Recipient; and (b) that FlipTree shall have the right to suspend your Service Provider account until it has received payment in full for all such reimbursable amounts.
Warranties: By providing Services as a Service Provider on the Platform, you represent, warrant, and agree that: (a) you are solely responsible for obtaining the necessary licenses and/or certifications for performance of the Services; (b) you will not transfer or sell your User Account, password and/or identification to any other party; (c) you will be solely responsible for any and all liability that results from or is alleged as a result of your provision of Services, including, but not limited to disputes between Users, personal injuries, death and property damages; (d) you will comply with all applicable laws, rules and regulations while providing Services, and you will be solely responsible for any violations of such provisions; (e) you will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you; (f) you will not attempt to defraud FlipTree or a Service Recipient in connection with your provision of Services; and (g) you will not demand that a Service Recipient pay in cash, or use a credit card reader or other off-platform payment service, to accept payment for Services or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
9. BACKGROUND CHECKS AND IDENTITY VERIFICATION
Unless otherwise disclosed, FlipTree checks the backgrounds (including SSN trace, enhanced nationwide criminal search, DOJ sex offender search, and extended global sanctions) and verifies the identity of each Service Provider using third party background check and identity verification services. FlipTree requires each Service Provider to submit the Service Provider's social security number, government-issued photo ID (Driver's license or State identification document), date of birth, and address to verify the Service Provider's identity, to conduct the Service Provider's background check, and for U.S. Federal 1099 tax reporting. Service Providers hereby give consent to FlipTree to conduct background checks as often as required in compliance with applicable law, including without limitation the Fair Credit Reporting Act ("FCRA"). Although FlipTree performs background checks and identity verification on each Service Provider, FlipTree cannot confirm that each Service Provider is who they claim to be, and therefore, FlipTree cannot and does not assume any responsibility for the accuracy or reliability of the background check or identity verification information or any information provided through the third party service. FlipTree cannot and does not guarantee that a Service Provider's profile and background check information are current and up to date. YOU ACKNOWLEDGE AND AGREE THAT FLIPTREE IS NOT LIABLE FOR DAMAGE THAT MIGHT ARISE OUT OF THE SERVICES. FLIPTREE IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING BUT NOT LIMITED TO SERVICE RECIPIENTS AND SERVICE PROVIDERS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY SERVICES OR USE OF THE PLATFORM. Each User should exercise caution and common sense to protect their personal safety and property, just as you would when interacting with any person with whom you do not know.
10. JOB FEE FOR SERVICES
Services that are not confirmed and paid for through the Platform violate the terms of this Agreement, which may result in the suspension or deactivation of the User's Account. Service Recipients shall be charged Job Fee pursuant to the rates quoted via the Platform, which shall be based on price proposed directly by Service Providers. You are responsible for reviewing the applicable Job Fee prior to the submission or acceptance of a Service. As a Service Recipient, you shall be responsible for all charges incurred in connection with the Service including Job Fee, taxes and possible transaction fees regardless of your awareness of such charges or the amounts thereof. Similarly, as a Service Provider, you agree that the Job Fee for the Services that you perform shall be the amount disclosed to you prior to your acceptance of a Service regardless of your awareness of such Job Fee or the amount thereof.
Quotes: Quotes for Services (each a "Quote" and, collectively, the "Quotes") requested by Service Recipients from Service Providers will be provided free of charge by Service Providers even if the requests for Quotes entail visits or appointments. Quotes not accepted by Service Recipients within seven calendar days (collectively, the "Quote Validity Period") will expire and be deemed invalid.
11. SERVICE PROVIDER SUBSCRIPTION FEES
As a Service Provider, you are required to pay a Subscription fee of $9.99 per month ("Service Provider Subscription Fee"). The Service Provider Subscription Fee or any other charges you may incur in connection with your Subscription, such as taxes and possible transaction fees, will be charged to your Preferred Payment Method. You acknowledge that FlipTree reserves the right, at any time, to modify its Service Provider Subscription Fee and billing methods, in any manner and at any time as we may determine in our sole and absolute discretion. Your Subscription will continue and automatically renew until terminated. You must cancel your Subscription before it renews in order to avoid billing of the Service Provider Subscription Fee for the next billing cycle to your Preferred Payment Method (see "Subscription Cancellation" below).
Free Trials: Your Subscription may start with a free trial. Free trials are intended to allow new Service Providers to try the Platform as a Service Provider. The duration of the free trial period of your Subscription will be specified during Service Provider sign up. We will charge the Service Provider Subscription Fee for your next billing cycle to your Preferred Payment Method at the end of the free trial period, and your Subscription will automatically renew unless you cancel your Subscription prior to the end of the free trial period. Free trials are for one time use only. Free trial eligibility is determined by FlipTree at its sole discretion and we may limit eligibility or duration to prevent free trial abuse. We reserve the right to revoke the free trial and put your account on hold in the event that we determine that you are not eligible. Service Providers with an existing Subscription are not eligible for free trial, nor are Service Providers who have previously used a free trial. We may use information such as identification, social security number, device ID, method of payment, phone number or email address used with an existing or recent Subscription to determine eligibility.
Billing Cycle: Service Provider Subscription Fees are fully earned upon payment. In some cases your payment date may change, for example if your Preferred Payment Method has not successfully settled or if your paid Subscription began on a day not contained in a given month. We may authorize your Preferred Payment Method in anticipation of Subscription or service-related charges through various methods, including authorizing it up to approximately one month of service as soon as you start your Subscription. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period.
Subscription Cancellation: You can unsubscribe or cancel your Subscription at any time. To cancel your Subscription you are required to cancel all your pending Service Appointments (if any) followed by submitting the request to cancel your Subscription. The cancellation will be effective immediately. The cancellation of the Subscription will have no effect on your payment obligations to FlipTree and your Service Recipients as outlined in Section 12 entitled "SERVICE PAYMENTS" and Section 13 entitled "PAYMENT PROCESSING". To unsubscribe or cancel, go to the Service Provider page on the Platform and follow the instructions.
No Refunds: Service Provider Subscription Fee payments are nonrefundable and there are no refunds or credits for partially used periods.
12. SERVICE PAYMENTS
Users of the Platform contract for the Services directly with other Users. FlipTree is not a party to any contracts for the Services. The Platform facilitates these contracts by supplying a medium through which Service Recipients can connect with Service Providers, schedule the Services, receive the Services, and make payments for the Services to the Service Provider (each a "Service Payment" and, collectively, the "Service Payments"). Notwithstanding the foregoing, Service Recipients may not circumvent the Platform by using the Platform to connect with Service Providers and then engage those Service Providers for Services outside of the Platform, or Service Providers may not circumvent the Platform by using the Platform to connect with Service Recipients and then engage those Service Recipients for Services outside of the Platform. YOU AGREE NOT TO CIRCUMVENT THE PLATFORM BY SOLICITING, SCHEDULING AND/OR PAYING FOR SERVICES OUTSIDE THE PLATFORM.
Service Payments: As a Service Recipient, we will charge your Preferred Payment Method for Service Payments, which will include Job Fee, and any other charges such as taxes and possible transaction fees applicable to the Services that were provided to you by your Service Provider. You hereby authorize us to charge your Preferred Payment Method on file in your Account for such amounts as soon as a Service is completed. We retain the right, in our sole discretion, to seek authorization or pre-authorization hold on your selected Payment Method to verify that sufficient funds are available to cover Service Payments. The authorization or pre-authorization hold is not a charge; however, it may reduce your available credit by the authorization amount until your bank's next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank. No refunds or credits will be provided once the Service Recipient's Preferred Payment Method has been charged. While we will use commercially reasonable efforts to protect all payment method information and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. The Job Fee quoted is exclusive of taxes. FlipTree is not responsible or liable for any other charges such as taxes and possible transaction fees incurred in connection with the Service excluding taxes on FlipTree's income. Service Recipients will be liable for all other charges such as taxes and possible transaction fees on the Service(s) provided (other than taxes based on FlipTree's income). As a Service Recipient, you can update your Payment Methods by going to the Platform. We may also update your Payment Methods using information provided by the payment service providers. Following any Payment Method update, you authorize us to continue to charge the Payment Method.
Service Provider Payouts: As a Service Provider, upon your satisfactory performance of a Service for the Service Recipient as an independent contractor through the Platform, and upon the successful receipt of Service Payments for such Services, you will receive the applicable Job Fee for the Service minus the Payment Processing Fees (each a "Service Provider Payout" and, collectively, the "Service Provider Payouts"). At the start of a Service Appointment, to verify that sufficient funds are available on your Service Recipient's Preferred Payment Method to cover the Job Fee, you are required to seek authorization or pre- authorization hold for the Job Fee by starting your Service Appointment on the Platform. At the end of a Service Appointment, you are required to charge the Service Recipient's Preferred Payment Method for the Job Fee by completing your Service Appointment on the Platform. Payouts of your available account balance are made daily to your Payout Method, and contain payments processed two business days prior. For example, service request payments received on a Tuesday are paid out by Thursday, and service request payments received on a Friday are paid out by Tuesday. The first payout for every new Service Provider may take seven (7) business days after the first successful Service Payment is received. This waiting period can be up to fourteen (14) business days for certain Services. This delay allows the Payment Processor to mitigate some of the risks inherent in providing payment processing services for the Service Provider. You acknowledge and agree that the Service Provider Payout shall not include any interest and will be net of any amounts that we are required to withhold by law. You expressly authorize FlipTree to pre-set the prices on your behalf for all Job Fee(s) that apply to the provision of Services that you provide through the Platform. Payment processing for Service Payments are provided to Service Providers at the rate of 3.99% of the Job Fee + $0.99 per job (collectively, the "Payment Processing Fees"). Payment Processing Fees include charges for transactions (such as processing a payment or a payout) and for other events such as handling a disputed charge, refund, maintenance etc. Payment Processing Fees are non-refundable. FlipTree reserves the right to withhold all or a portion of Job Fee if it believes that you have attempted to defraud or abuse FlipTree or FlipTree's payment processes. As a Service Provider, you can update your Payout Method by going to the Platform. We may also update your Payout Method using information provided by the payment processors. Following any Payout Method update, you authorize us to send funds to the Payout Method. As an independent contractor using FlipTree, you are responsible for filing and paying your own federal and state income taxes. FlipTree does not withhold any taxes on your behalf. In compliance with the IRS, Service Providers who earned $600 or more during a calendar year are considered eligible and will be issued U.S. Federal 1099 tax forms. If you have questions about filing your taxes, please consult a tax professional.
13. PAYMENT PROCESSING
Payment processing services on FlipTree are provided by Stripe (the "Payment Processor"). You authorize FlipTree and Stripe to facilitate the transaction of the Services, Service Payments, Service Provider Subscription Fees, Service Provider Payouts, and the payment remittance of all applicable charges and fees between you and other Users and between you and us. All payments transacted through Stripe are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to these terms, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of receiving payment processing services through Stripe, you agree to provide FlipTree accurate and complete information about you and your business, and you authorize FlipTree to share this information and transaction information related to your use of the payment processing services provided by Stripe. To facilitate payment for the Services, each Service Recipient is required to register a Payment Method, and each Service Provider is required to register a Payout Method. To facilitate payment for the Service Provider Subscription Fee, each Service Provider is required to register a Payment Method.
Preferred Payment Method: For Service Payments and Service Provider Subscription Fees, FlipTree will first attempt to charge the default Payment Method ("Preferred Payment Method"). In the event that FlipTree is unable to charge Preferred Payment Method for any reason, including but not limited to exceeding a payment method's credit limit, payment method cancellation, payment method being out of date, or payment method details being incorrect, you authorize us to charge a secondary Payment Method associated with your Account, if available. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuer. Check with your Payment Method issuer for details.
Payments: As a Service Recipient making a Service Payment or as a Service Provider making a Service Provider Subscription Fee payment, both through the Payment Processor, you agree to pay all amounts you owe when due using your Preferred Payment Method. You further authorize the Payment Processor to charge your Preferred Payment Method for amounts you owe when they are due, whether they are recurring or one-time payments. You must keep all payment information you provide us up-to-date, accurate and complete. Do not share your payment card, bank account or other financial information with any other User. We take steps to secure all payment method and other personal financial information, but we expressly disclaim any liability to you, and you agree to hold us harmless for any damages you may suffer as a result of the disclosure of your personal financial information to any unintended recipients. FlipTree may enable you to make payments using credit, debit, or prepaid cards. We reserve the right to cancel your ability to make payments with one or more of the Payment Methods you have authorized in our sole and absolute discretion.
Payment Disputes: All requests for Service Payment and Service Provider Subscription Fee chargebacks, errors, claims, refunds and disputes (each a "Payment Dispute" and, collectively, the "Payment Disputes") will be subject to review by FlipTree in accordance with the rules applicable to the Payment Method you used to make the payment and will be in FlipTree's absolute discretion. FlipTree is not liable to you under any circumstances for Payment Disputes we are unable to resolve in your favor. We will normally process your valid written Payment Dispute request within thirty (30) days after we receive it, unless a shorter period is required by law. You may file a Payment Dispute by sending an email to email@example.com. If you close or deactivate your Account before we adjudicate your Payment Dispute, we will not be able to issue you any amounts you are owed. We will attempt to pay you any payment disputed amounts you are owed using the method with which you made the disputed payment, but we cannot guarantee that we will be able to do so if your Payment Method information is inaccurate, incomplete, or has been cancelled. If your actions on a Payment Dispute result, or are likely to result, in a violation of these Terms or create other risks to FlipTree or our payment processing partners, or if we determine that your Account has been used to engage in deceptive, fraudulent, or illegal activity, then we may permanently withhold any amounts owed to you in our sole discretion. If you have a past due balance due on any Account, or for any additional amounts that we determine you owe us, we may, without limiting any other rights or remedies: (a) charge one or more of your Payment Methods; (b) offset any amounts you owe us against amounts you may be owed; (c) invoice you for amounts due to us, which such amounts will be due upon receipt; (d) reverse or block any credits to your bank account; or (e) collect payment from you by any other lawful means. In the event FlipTree on its sole discretion, based on investigation conducted on a claim or complaint filed by a Service Recipient on Services performed by a Service Provider, comes to the conclusion that the Service Provider has failed to provide the Services to the Service Recipient, and the Service Recipient has made the Service Payment, the Service Provider expressly agree and authorize FlipTree to recover damages including but not limited to issuing full refund of the Service Payment to the Service Recipient by debiting the same amount from the Service Provider's Payout Method and crediting the same amount to Service Recipient's Payment Method.
Payment Failures: You remain responsible for any uncollected amounts. You agree to make all payments you owe when due, regardless of whether you have an active Account. If you fail to make payments you owe when due, or if FlipTree is unable to charge one of your Payment Methods for any reason (each a "Payment Failure" and, collectively, the "Payment Failures"), FlipTree reserves all rights permissible under law to recover payment and all costs and expenses incurred, including attorneys' fees, in our pursuit of your payment. In the event of Payment Failures, we reserve the right to terminate or suspend your Account. You explicitly agree that all communication in relation to delinquent accounts or overdue payments will be made by electronic mail or by phone. Such communication may be made by FlipTree or by anyone on its behalf, including but not limited to a third party collection agent. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. You agree to keep your contact information, including, but not limited to, email address and phone number current. If you cancel your Account at any time, you will not receive any refund. If you have a balance due on any Account, you agree that FlipTree may charge such unpaid fees to any Payment Method associated with your Account or otherwise bill you for such unpaid fees.
14. SERVICE APPOINTMENT CANCELLATION
Confirmed Service appointments of Service Providers with Service Recipients (each a "Service Appointment" and, collectively, the "Service Appointments") scheduled through the Platform will be subject to FlipTree's cancellation policy which is as follows:
Twenty-four (24) hour automatic cancellation of Service Appointment requests: Service Appointment requests pending confirmation by the Service Provider or Service Recipient for over twenty-four (24) hours will be subject to automatic cancellation by FlipTree. Your failure to respond timely could negatively impact your Service Recipient or Service Provider. As a result, such conduct may adversely impact your Ratings.
Cancellation of the Service Appointment by the Service Recipient: If you cancel less than two (2) hours before such Service Appointment, you may be charged a fee equivalent to the hourly rate of your Service Provider described in your Service Appointment. Service Appointment cancellations in less than two (2) hours could negatively impact your Service Provider. As a result, such conduct may adversely impact your Ratings.
Cancellation of the Service Appointment by the Service Provider: If you cancel less than two (2) hours before such Service Appointment, you may be charged a $9.99 fee. Service Appointment cancellations in less than two (2) hours could negatively impact your Service Recipient. As a result, such conduct may adversely impact your Ratings.
Rescheduling the Service Appointment: Rescheduling a Service Appointment by the Service Provider or Service Recipient less than two (2) hours before such Service Appointment could negatively impact your Service Recipient or Service Provider, and hence it is not permitted.
15. INFORMATION WE COLLECT
16. CONFIDENTIAL INFORMATION
a. FlipTree Confidential Information: The term "FlipTree Confidential Information" shall mean any and all of FlipTree's trade secrets, confidential and proprietary information and all other information and data of FlipTree that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. FlipTree 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 or other business information disclosed directly or indirectly in writing, orally or by drawings or observation. You acknowledge that FlipTree Confidential Information is a valuable, special and unique asset of FlipTree and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any of it. You shall promptly notify FlipTree in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of FlipTree Confidential Information. You shall use best efforts to protect FlipTree Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing FlipTree Confidential Information to FlipTree upon termination of this Agreement for any reason whatsoever.
b. Service Recipient Confidential Information: As a Service Provider, you understand that in performing the Services, you will receive certain private and/or confidential information regarding the Service Recipient ("Service Recipient Confidential Information") and will have access to their homes and personal belongings. Except upon order of government authority (for example, court, administrative agency) having jurisdiction, or upon express written consent by the Service Recipient, you agree that you shall not publish, disseminate or disclose, for your own benefit or the benefit of any third party, any confidential information regarding the Service Recipient, including addresses, phone numbers and/or financial information. You further agree not to engage in any activity which violates the privacy of any Service Recipients, including, but not limited to, taking unauthorized photographs or their homes or their personal belongings; or publishing, disseminating or disclosing any such photographs or recordings. You acknowledge that your failure to comply with the foregoing shall constitute a material breach of this Agreement.
17. USER CONTENT
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. Any User Content provided by you remains your property. However, by providing User Content to FlipTree or making available any User Content on or through the Platform, you hereby grant to FlipTree a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, copy, adapt, modify, create derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Platform, Services, FlipTree's business and on third party sites and services), through, by means of or to promote, market or advertise the Platform or Services, or for any other purpose in our sole discretion, without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. In the interest of clarity, the license granted to FlipTree shall survive termination of the Platform or your Account. FlipTree does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published, or transmitted on or through the Platform by you.
You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant FlipTree the license to the User Content as set forth above; and (b) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor FlipTree's use of the User Content as permitted herein will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
While it has no obligation to do so, you agree that FlipTree may proofread, summarize or otherwise edit and/or withdraw your User Content at FlipTree's sole discretion and at any time and for any reason, without notice to you, and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties in these Terms.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by FlipTree in its sole discretion, whether or not such material may be protected by law.
FlipTree reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform or Users, or for any other reason.
YOU ACKNOWLEDGE AND AGREE THAT FLIPTREE DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO: (A) MONITOR OR REVIEW USER CONTENT; OR (B) CONDUCT IDENTITY VERIFICATION, BACKGROUND CHECKS ON ANY USER, INCLUDING BUT NOT LIMITED TO SERVICE RECIPIENTS AND SERVICE PROVIDERS.
18. NO ENDORSEMENT
FlipTree does not endorse any User, or any Services. No agency, partnership, joint venture, or employment is created as a result of these Terms or any User's use of any part of the Platform.
Users are required by these Terms to provide accurate information, and although FlipTree may undertake additional checks and processes designed to help verify or check the identities or backgrounds of Users, we do not make any representations about, confirm, or endorse any User or their purported identity or background, regardless of the specific Services they are using or any involvement by FlipTree personnel in providing or scheduling those Services.
Any reference on the Platform to a User being licensed or credentialed in some manner, or "badged", "best of", "top", "background checked" (or similar language) designations indicates only that the User has completed a relevant account process or met user review standards, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by FlipTree and is not verification of their identity and whether they or their Services are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform.
You should always exercise responsibility, due diligence and care when deciding whether to have any interaction with any other User. FlipTree has no responsibility for any damage or harm resulting from for your interactions with other Users. The Collective Content may contain links to third party websites, offers, or other events/activities not owned or controlled by FlipTree. We do not endorse or assume any responsibility for any such links, and if you access them, you do so at your own risk. By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against those particular Users or other third parties. You agree not to attempt to impose liability on or seek any legal remedy from FlipTree with respect to such actions or omissions.
19. SPONSORED INFORMATION
FlipTree may publicly display advertisements, paid content, and/or other sponsored information. The manner, mode, and extent of such advertising are subject to change without specific notice to you. Service Providers may compensate FlipTree to "Promote" themselves in search results and therefore rank higher. Any such Service Providers will be clearly designated in applicable search results as "Promoted" or with a similar designation. FlipTree may impose certain quality-related standards for Service Providers to qualify as "Promoted", which standards may be enforced and/or changed at any time.
To help maintain the quality of the Platform, Users (both Service Recipients and Service Providers) will have the opportunity to rate each other after the completion of Services (each a "Rating" and, collectively, the "Ratings"). This two-way rating system holds everyone accountable for their professionalism and behavior. Accountability helps create a respectful and safe environment for Service Recipients and Service Providers. Service Recipients will be able to see Service Provider ratings before selecting a Service Provider for a Service request. So, each rating a Service Recipient gives can have an impact on that Service Provider's future on FlipTree. In addition, Service Recipients with a low star rating may not have their requests accepted by Service Providers. Other factors that may impact Ratings include Service Appointment cancellations in less than two (2) hours, twenty-four (24) hour automatic cancellation of Service Appointment requests, and Service Appointment No-shows by Service Providers. Please see section 14 entitled "SERVICE APPOINTMENT CANCELLATION" for details.
By sending us any feedback, comments, questions, or suggestions concerning FlipTree or our services, including the Platform (collectively, the "Feedback") you represent and warrant that: (a) you have the right to disclose the Feedback; (b) the Feedback does not violate the rights of any other person or entity; and (c) your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further: (a) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback; (b) acknowledge that we may have something similar to the Feedback already under consideration or in development; (c) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback; and (d) irrevocably waive, and cause to be waived, against FlipTree and its Users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account or the Platform.
23. NETWORK ACCESS AND DEVICES
To use the Platform you must have data network access. You are responsible for all data network access charges. You are responsible for obtaining the data network access necessary to use the Platform. Your mobile network's data and messaging rates and fees may apply if you access or use the Platform from your Device. You are responsible for acquiring and updating compatible hardware or Devices necessary to access and use the Platform and any updates thereto. FlipTree does not guarantee that the Platform, or any portion thereof, will function on any particular hardware or devices. In addition, the Platform may be subject to malfunctions and delays inherent in the use of the internet and electronic communications. The quality of the display of the Platform and Collective Content may vary from device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your data network connection. FlipTree makes no representations or warranties about the quality of your experience on your Device.
24. DEVICE AND LOCATION COORDINATES
To schedule and accept Services, you must possess a Mobile Device. As a User, you hereby acknowledge and consent to FlipTree's collection of the latitude and longitude location ("Location Coordinates") of your Mobile Device and/or your address so that we can provide our services to you. FlipTree does not collect or use Location Coordinates data for the purpose of controlling or monitoring the manner and means by which you provide or receive the Services contemplated by this Agreement, or the frequency with which you use the Platform to schedule or provide Services. By executing this Agreement, you agree to the use and disclosure of Location Coordinates information as described above.
25. THIRD PARTY SOFTWARE, CONTENT, SERVICES AND FEES
Access to Third Party Services: The Platform may be made available or accessed in connection with third party services and content (including advertising) that FlipTree does not control, and may enable you to export information or content, including your or other Users' User Content, to Third Party Services such as Facebook, Google or Apple, through a feature of the Platform. You acknowledge that Third Party Terms may apply to your use of such third party services and content. FlipTree does not endorse such third party services and content and in no event shall FlipTree be responsible or liable for any products or services of such third party providers. Additionally, Apple, Inc., or Google, Inc. will be a third party beneficiary to this contract if you access the Platform using Applications developed for Apple iOS or Android mobile devices, respectively. These third party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Platform in any manner. Your access to the Platform using these devices is subject to applicable Third Party Terms.
26. COPYRIGHT POLICY
We comply with the provisions of the Digital Millennium Copyright Act. If you have an intellectual property rights related complaint about material posted on the Platform, you may contact us at PO Box 1043, Indian Trail, North Carolina 28079 Attn: DMCA. Any notice alleging that materials hosted by or distributed through the Platform infringe intellectual property rights must include the following information:
a. An electronic or physical signature of the owner of the copyright or other right being infringed, or the person authorized to act on behalf of the owner of the copyright or other right being infringed.
b. A description of the copyright protected work or other intellectual property right that you claim has been infringed.
c. A description of the material that you claim is infringing and where it is located on the Platform.
d. Your address, phone number, and email address.
e. A statement by you that you have a good faith belief that the use of those materials on the Platform is not authorized by the copyright owner, its agent, or the law.
f. A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
27. INTELLECTUAL PROPERTY RIGHTS
FlipTree Content is protected by copyright, trademark, and other laws of the United States, foreign countries, and international conventions. Except as expressly provided in these Terms, FlipTree and its licensors exclusively own all right, title, and interest in and to the Platform and FlipTree Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of FlipTree used herein are trademarks or registered trademarks of FlipTree. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.
28. PROHIBITED USES
You may use the Platform only for lawful purposes and in accordance with this Agreement. You agree not to:
• Advertise or solicit Services not related to or appropriate for the Platform including, but not limited to any Service that: (a) is not in supported categories; (b) provides directories or referrals; (c) offers lending; (d) competes with the business of FlipTree; (e) is based outside the United States; (f) promotes or offers Ponzi schemes, junk mail, spam, chain letters, pyramid schemes, affiliate marketing or unsolicited commercial content, discount cards, credit counseling, online surveys or contests, raffles, prizes, bonuses, games of chance or giveaways; or (g) offers a Service not reasonably available to a Service Recipient or other individual in that Service Recipient's location.
• Agree to purchase a Service when you do not meet a Service Provider's requirements.
• As a Service Provider, notwithstanding anything to the contrary contained in these Terms, "sell" any personally identifiable data, including but not limited to information related to Service Recipients.
• Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack.
• Attempt to interfere with the proper working of the Platform.
• Collect, harvest, or publish any personally identifiable data including but not limited to names or other account information from the Platform, or use the communication systems provided by the Platform for any reason not explicitly authorized by these Terms, including commercial solicitation purposes.
• Defame, harass, abuse, stalk, threaten, or otherwise violate the legal rights of others, including but not limited to FlipTree employees and Platform Users.
• Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Platform.
• Engage in fraudulent conduct including but not limited to offering to make money transfers with intent to request a refund of any portion of the payment or soliciting Users to mail cash or use other payment methods not supported or prohibited by FlipTree.
• Fail to perform Services purchased from you as promised, unless the Service Recipient or other individual fails to materially meet the terms of the mutually agreed-upon agreement for the Services or refuses to pay, or a clear typographical error is made, or you cannot authenticate the Service Recipient's or other User's identity.
• In any manual or automated manner copy copyrighted text, or otherwise misuse or misappropriate Platform information or Content including but not limited to, for use on a mirrored, competitive, or third party site.
• Modify copies of any materials from the Platform.
• Recruit, solicit, or contact in any form Service Providers or Service Recipients for employment or any other use not specifically intended by the Platform.
• Sign up for, negotiate a price for, use, or otherwise solicit a Service with no intention of following through with your use of or payment for the Service.
• Submit User Content that damages the experience of any User including but not limited to: (a) requests to download non-FlipTree mobile applications and/or links that direct the User to mirrored websites where the User must enter information that is redundant with what has already been entered on FlipTree; (b) offers to purchase a Service or any other service outside of FlipTree; or (c) using a profile page or username to promote Services not offered on or through the Platform.
• Take any action that: (a) may disable, overburden, damage, or impair the Platform's infrastructure; (b) interferes or attempts to interfere with the proper working of the Platform or any third party participation; (c) bypasses measures that are used to prevent unauthorized access to the servers on which the Platform is stored, or any server, computer or database connected to the Platform; (d) circumvents, disables or otherwise interferes with security features of the Platform; (e) distributes viruses, trojan horses, worms, logic bombs or any other technologies that may harm FlipTree or Users; (f) uses the Platform in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights; or (g) circumvents or manipulates fee structure, billing, payments, or fees owed.
• Take any action that may undermine the efficacy or accuracy of reviews or Ratings systems.
• Take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful Content to or through the Platform, including Content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory, or that advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law.
• Transmit more request messages through the Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser.
• Undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Platform.
• Use another person's Account, misrepresent yourself or Services offered through the Platform, misrepresent your identity or qualifications, misrepresent a project or other information in a quote request, or post Content in any inappropriate category or areas on the Platform.
• Use any device, software or routine that interferes with the proper working of the Platform.
• Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
• Use any manual process to monitor or copy any of the material on the Platform or for any other unauthorized purpose without our prior written consent.
• Use the Platform for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
• Use the Platform In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• Use the Platform to impersonate or attempt to impersonate FlipTree, a FlipTree employee, another User or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
• Use the Platform to solicit, advertise for, or contact Users for employment, contracting, or other purposes unrelated to the Services facilitated through the Platform without the express written consent of FlipTree.
• Violate any key FlipTree policies that govern your use of the Platform and our interactions with you and third parties.
• To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Platform, or which, as determined by us, may harm FlipTree or Users of the Platform or expose them to liability.
29. REPEAT INFRINGERS
FlipTree will promptly terminate without notice the accounts of Users that are determined by FlipTree to be "Repeat Infringers" to the fullest extent permitted under applicable law. A Repeat Infringer is a User who has been notified of infringing activity or has had User Content as defined in Section 17 entitled "USER CONTENT" removed from the Platform at least twice.
YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM, SERVICES, OR COLLECTIVE CONTENT, AND ANY SERVICE OR GOOD REQUESTED OR OBTAINED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. THE PLATFORM, COLLECTIVE CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
WITHOUT LIMITING THE FOREGOING, FLIPTREE AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND INVESTORS, LICENSORS, PARTNERS, MEMBERS, CONTROLLING PERSONS, AND SUCCESSORS AND ASSIGNS EXPLICITLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM OR THE SERVICES OFFERED ON OR THROUGH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE PLATFORM, INCLUDING WITHOUT LIMITATION ALL COLLECTIVE CONTENT.
NEITHER FLIPTREE NOR ANY PERSON ASSOCIATED WITH FLIPTREE MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER FLIPTREE NOR ANYONE ASSOCIATED WITH FLIPTREE REPRESENTS OR WARRANTS THAT THE PLATFORM, COLLECTIVE CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. FLIPTREE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE PLATFORM OR SERVICES. FLIPTREE MAKES NO WARRANTY THAT THE PLATFORM OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FLIPTREE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF SERVICE PROVIDERS. FLIPTREE ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. FLIPTREE SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR COLLECTIVE CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLIPTREE OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OR USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO ANY SERVICE PROVIDERS OR SERVICE RECIPIENTS. YOU UNDERSTAND THAT FLIPTREE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM OR TO REVIEW OR VET ANY SERVICES. FLIPTREE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON AND GIVE OR RECEIVE SERVICES. FLIPTREE EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
YOU UNDERSTAND THAT WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR THE PLATFORM WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR ANY RECONSTRUCTION OF ANY LOST DATA. FLIPTREE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT (INCLUDING MOBILE DEVICES), COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY PLATFORM LINKED TO IT.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
31. NO LIABILITY
IN NO EVENT WILL FLIPTREE AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND INVESTORS, LICENSORS, PARTNERS, MEMBERS, CONTROLLING PERSONS, AND SUCCESSORS AND ASSIGNS BE LIABLE FOR: (A) DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PLATFORM, COLLECTIVE CONTENT ON THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) PROPERTY DAMAGES; (E) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS OR PAIN AND SUFFERING ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (F) THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES OR COLLECTIVE CONTENT; (G) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM; (H) YOUR OFFERING OR PROVIDING SERVICES OR REQUESTING OR RECEIVING SERVICES THROUGH THE PLATFORM; (I) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; (J) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY SERVICE PROVIDER, EVEN IF FLIPTREE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (K) QUALITY OF SERVICES PERFORMED BY A SERVICE PROVIDER.
THE PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE SERVICES WITH SERVICE PROVIDERS, BUT YOU AGREE THAT FLIPTREE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES PROVIDED TO YOU BY SERVICE PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND COLLECTIVE CONTENT, YOUR OFFERING OR PROVIDING SERVICES OR REQUESTING OR RECEIVING SERVICES THROUGH THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF FLIPTREE OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS SOLELY WITH YOU.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
32. INDEMNIFICATION AND RELEASE
You agree to release, defend, indemnify and hold harmless FlipTree and its affiliates and subsidiaries, and their respective officers, directors, employees, agents and investors, licensors, partners, members, controlling persons, and successors and assigns from and against any claims, demands, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including attorneys' fees) arising out of or relating to your violation of this Agreement or your use of the Platform, including, but not limited to, any use of the Collective Content, Services and products other than as expressly authorized in this Agreement or your use of any information obtained from the Platform.
33. DISPUTES BETWEEN OR AMONG USERS
We understand that occasionally disputes may arise between or among our Users. In the event a dispute initiated by either a Service Provider or a Service Recipient cannot be resolved independently, you hereby agree, at FlipTree's request, to participate with good faith, to the extent you are reasonably able to do so, in a neutral resolution, mediation, or arbitration process conducted by FlipTree or a neutral third party mediator or arbitrator selected by FlipTree. Notwithstanding the foregoing, you acknowledge and agree that FlipTree is under no obligation to become involved in or impose resolution in any dispute between or among Users or any third party. Expenses incurred in resolving disputes between Service Recipients and Service Providers including attorneys' fees and costs will be borne by the Service Provider and Service Recipient who are parties to the dispute.
34. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against FlipTree on an individual basis in arbitration, as set forth in this Arbitration Agreement and Class Action Waiver (collectively, the "Arbitration Agreement"). This will preclude you from bringing any class, collective, or representative action against FlipTree, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against FlipTree by someone else. You and FlipTree agree that any dispute, claim or controversy arising out of or relating to: (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof; (b) your access to or use of the Platform and/or Services at any time; or (c) whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a dispute, claim or controversy arises before or after the date you agreed to the Terms or after the termination of this Agreement, will be settled by binding arbitration between you and FlipTree, and not in a court of law. YOU ACKNOWLEDGE AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. Unless both you and FlipTree otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.
Exceptions: You retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Arbitration: Any arbitration between you and FlipTree will be settled under the Federal Arbitration Act ("FAA"), and will be administered by the American Arbitration Association ("AAA") in accordance with the AAA's Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules and filing forms are available at AAA or by calling the AAA at 1-800-778-7879. The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that FAA will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of North Carolina.
Process: A party who intends to seek arbitration must first send a written notice ("Notice") of the dispute to the other party by certified U.S. Mail. FlipTree's address for Notice is: PO Box 1043, Indian Trail, North Carolina 28079 Attn: Claims & Disputes. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice is received, you or FlipTree may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or FlipTree must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, FlipTree will pay you the amount awarded by the arbitrator, if any.
No Class Actions: TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND FLIPTREE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and FlipTree agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permitted under applicable law.
Fees and Location: If you commence arbitration in accordance with this Agreement, reimbursement by FlipTree for your payment of the filing fee will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Mecklenburg County, North Carolina. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse FlipTree for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.
Modifications to this Arbitration Provision: If FlipTree makes any future change to this arbitration provision, other than a change to FlipTree's address for Notice, you may reject the change by sending us written notice within thirty (30) days of the change to FlipTree's address for Notice, in which case your account with FlipTree will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive. FlipTree's address for notice is: PO Box 1043, Indian Trail, North Carolina 28079 Attn: Claims & Disputes.
Severability and Survival: If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason: (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. This Arbitration Agreement shall survive any termination of your Account or the Platform.
Third Party Beneficiary: You and FlipTree acknowledge that any third party consumer reporting agency ("CRA") that FlipTree uses to perform background checks on Service Providers is an express and intended third party beneficiary of this arbitration provision and as such, the terms of this Arbitration Agreement will inure to the benefit of the CRAs and may be enforced by them. Accordingly, you agree that any dispute that arises between you and a CRA that relates to or arises out of this Arbitration Agreement or any aspect of your relationship with FlipTree will be resolved by binding arbitration. If any court or arbitrator determines that this third party beneficiary subsection is void or unenforceable for any reason, then this subsection shall be severed from the Arbitration Agreement, and the remainder of the section shall remain enforceable, meaning that the class action waiver and the mutual obligation to resolve disputes between you and FlipTree through binding arbitration remains enforceable.
35. WAIVER AND SEVERABILITY
If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. FlipTree's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by FlipTree in writing. This provision shall not affect the Severability and Survival section of the Arbitration Agreement and Class Action Waiver of these Terms.
FlipTree's goal is to provide a safe environment for our Users, and to advance the safety of our local community. This section provides information we ask you to acknowledge and understand regarding the COVID-19 virus. THE COVID-19 VIRUS IS A SERIOUS AND EXTREMELY CONTAGIOUS DISEASE THAT CAN LEAD TO SEVERE ILLNESS AND DEATH. The World Health Organization has classified it as a pandemic. You could contract COVID-19 from a variety of sources. An inherent risk of exposure to COVID- 19 exists in any public place where people are present. The COVID-19 virus has a long incubation period. You or other Users may have the virus and not show symptoms and yet still be highly contagious. Determining who is infected by COVID-19 is challenging and complicated due to limited availability for virus testing. This leaves you vulnerable to COVID-19 transmission during a Service Appointment. According to the Centers for Disease Control and Prevention, senior citizens and guests with underlying medical conditions are especially vulnerable. YOU CONFIRM THAT YOU HAVE READ THE NOTICE ABOVE AND UNDERSTAND AND ACCEPT THAT THERE IS AN INCREASED RISK OF CONTRACTING THE COVID-19 VIRUS DURING A SERVICE APPOINTMENT. BY USING THE PLATFORM AND SERVICES YOU UNDERSTAND AND VOLUNTARILY ASSUME AND ACCEPT THE ADDITIONAL RISK OF CONTRACTING COVID-19 AND ALL RELATED RISKS DURING A SERVICE APPOINTMENT. YOU ALSO ACKNOWLEDGE THAT YOU COULD CONTRACT THE COVID-19 VIRUS FROM SOMEWHERE ELSE AND UNRELATED TO THE SERVICE APPOINTMENT.
37. GOVERNING LAW
The Terms and the relationship between you and FlipTree shall be governed in all respects by the laws of the State of North Carolina, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against FlipTree that is not subject to arbitration must be resolved by a court located in Mecklenburg County, North Carolina except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within Mecklenburg County, North Carolina for the purpose of litigating all such claims or disputes that are not subject to arbitration. You hereby waive any and all jurisdictional and venue defenses otherwise available.
38. SANCTIONS FOR VIOLATIONS OF THESE TERMS
Without limiting any other rights reserved herein, FlipTree may, in its sole discretion, take any action permitted by law and/or seek injunctive relief as determined by FlipTree for any violation of these Terms or any other policy or agreement between you and FlipTree, including but not limited to removing User Content you posted, limiting your Account access, requiring you to forfeit certain funds or paid fees, assessing monetary penalties or costs, terminating your Account, notifying other Users of the termination of your Account and/or the violation of these Terms, decreasing your status or search rank, canceling quotes or postings, blocking access, investigating you, and/or cooperating with law enforcement agencies in investigation or prosecution. Notwithstanding anything set forth herein to the contrary, you further represent, warrant, and agree to pay all out-of-pocket expenses including attorneys' fees and costs incurred by FlipTree in enforcing provisions of this agreement, remedying any breach or perceived breach hereof.
39. ACCOUNT SUSPENSION OR TERMINATION
This Agreement is effective upon your creation of a User Account. You may discontinue your use of the Platform at any time, for any reason. We may, in our discretion, with or without cause, with or without prior notice and at any time, decide to limit, block, suspend, deactivate or cancel your Account in whole or in part. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform or your User Content, or receive assistance from FlipTree support teams; (b) if appropriate in our sole discretion, we may communicate to other Users that your Account has been terminated, blocked, suspended, deactivated, cancelled, or otherwise penalized in any way, and why this action has been taken; and (c) you will not be entitled to any compensation for Platform services or Services cancelled or delayed as a result of Account termination. If you would like to cancel or deactivate your Account, please submit a request by sending an email to firstname.lastname@example.org. Please note that if your Account is cancelled or deactivated, we do not have an obligation to delete or return to you any User Content you have posted to the Platform, including, but not limited to, any reviews. The terms of this Agreement, and any subsequent modifications of this Agreement, shall remain in effect at all times after you or FlipTree terminate your participation or access to the Platform. If FlipTree terminates or suspends a User Account for any reason, the User is prohibited from registering a new account under their name or an alias.
Assignment: You may not assign these Terms without FlipTree's prior written approval. FlipTree may assign these Terms without your consent to: (a) a subsidiary or affiliate; (b) an acquirer of FlipTree's equity, business or assets; or (c) a successor by merger. Any purported assignment in violation of this section shall be void.
Force Majeure: Other than payment obligations, neither FlipTree nor you shall be liable to the other for any delay or failure in performance under the Terms arising out of a cause beyond its control and without its fault or negligence. Such causes may include but not limited to:
a. Acts of God, such as severe acts of nature or weather events including but not limited to floods, fires, earthquakes, hurricanes, or explosions.
b. Acts of declared or undeclared war, terrorism, pandemics, epidemics or national disasters.
c. Acts of governmental authorities such as expropriation, condemnation, or changes in laws and regulations.
d. Unavailability of necessary utilities, blackouts.
e. Strikes and labor disputes.
No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms.
Contacting You and E-SIGN Consent: You agree that FlipTree may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Platform. With your consent, FlipTree, Service Recipients, Service Providers, or other individuals may also contact you by phone or through text (SMS) messages. If you have agreed to receive text messages or phone calls from FlipTree, Service Recipients, Service Providers, or other individuals you also consent to the use of an electronic record to document your agreement. To view and retain a copy of this disclosure or any information regarding your registration in the Platform, you will need: (a) a Device with a web browser and internet access; and (b) storage space on such Device. IF YOU DO NOT AGREE, YOU MAY NOT ACCESS OR USE THE PLATFORM.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform or the Services offered therein must commence within six (6) months after the cause of action accrues. Otherwise, such cause of action is permanently barred.
41. CONTACT US
ACKNOWLEDGMENT AND AGREEMENT