Last Updated: May 12, 2020
SECTION 15 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 15 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
Subject to Section 15.9 of this Agreement, Switchboard reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. HOW THE SERVICES WORK. The Services may be used to facilitate the posting and booking of personal consulting sessions (“Session(s)”). We make our Services available as an online platform for individuals who provide Sessions (“Experts”) to connect with other individuals who want to reserve such Sessions (“Users”) and make arrangements through the Website. Our responsibilities are limited to facilitating the availability of the Services.
PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE CONNECTION OF USERS AND EXPERTS FOR THE PURPOSES OF ARRANGING SESSIONS WITH EACH OTHER THROUGH THE WEBSITE, BUT YOU AGREE THAT SWITCHBOARD HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES PROVIDED BY EXPERTS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. SWITCHBOARD CANNOT AND DOES NOT CONTROL THE INFORMATION OR CONTENT CONTAINED IN ANY ACCOUNTS (OTHER THAN THE ARRANGEMENT AND DISPLAY OF SUCH CONTENT) AND THE CONDITION, LEGALITY, OR SUITABILITY OF ANY SESSIONS. SWITCHBOARD IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL ACCOUNTS AND SERVICES. ACCORDINGLY, ANY SESSIONS WILL BE MADE OR ACCEPTED AT A USER’S OWN RISK, AND USERS MUST SATISFY THEMSELVES WITH ANY EXPERT’S CREDENTIALS. YOU ACKNOWLEDGE AND AGREE THAT YOUR ABILITY TO RESERVE A SESSION THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH SWITCHBOARD AS A PROVIDER OF SUCH SERVICES.
EXPERTS ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF SWITCHBOARD. SWITCHBOARD DOES NOT PERFORM ANY OBLIGATIONS IN CONNECTION WITH THE SERVICES AND DOES NOT EMPLOY EXPERTS TO PERFORM SUCH OBLIGATIONS. USERS HEREBY ACKNOWLEDGE THAT SWITCHBOARD DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR AN EXPERT’S SESSIONS, BUT MAY MONITOR RESERVATIONS MADE THROUGH THE WEBSITE. THE RELATIONSHIP BETWEEN EXPERTS AND SWITCHBOARD IS THAT OF AN INDEPENDENT CONTRACTOR.
2. USE OF THE SERVICES. The Services, and any parts thereof, are protected by copyright laws throughout the world. Subject to this Agreement, Switchboard grants you the right to access and use the features and functionality of the Services, as well as a limited license to reproduce portions of the Services for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Switchboard in a separate license, your right to use any Services is subject to the Agreement.
2.1 Modifications. Your continued use of the Services is your agreement to this Agreement with respect to the Services. Switchboard reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Services or any suspension or termination of your access to or use of the Services.
2.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Switchboard; (c) you shall not use any metatags or other “hidden text” using Switchboard’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you will not access the Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use, or suspected unauthorized user, of the Services terminates the rights and licenses granted by Switchboard pursuant to the Agreement. You agree to indemnify Switchboard Parties (as defined below) in the event of any claims against Switchboard based on or arising from your violation of the foregoing.
2.3 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Switchboard to monitor such materials and that you access these materials at your own risk.
3.1 Creating an Account. In order to access certain features of the Services, including reserving a Session as a User or Expert, you are required to create an account profile through the Google Sign-on link found on our Services (“Account”). To create an Account, Experts will be asked to provide a variety of information, including but not limited to, your time zone, when you are willing to take calls, payment information, and phone number. By granting access to your Google account, you understand that Switchboard may access, make available and store (if applicable) any information, data, text, graphics, video, messages and/or other materials accessible through the Services that you have provided in your Google account (“Google Content”) so that it is available on and through the Services via your Account. Subject to the privacy settings you have set in your Google account, personal information that is contained within your Google Account may be available on and through your Account on the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH GOOGLE IS GOVERNED SOLELY BY YOUR AGREEMENT WITH GOOGLE, AND SWITCHBOARD DISCLAIMS ANY LIABILITY FOR PERSONAL INFORMATION THAT MAY BE PROVIDED TO IT BY GOOGLE IN VIOLATION OF THE PRIVACY SETTINGS YOU HAVE SET IN YOUR GOOGLE ACCOUNT. Switchboard makes no effort to review any Google Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Switchboard is not responsible for any such Google Content.
3.2 Registration Data. In registering your Account through the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to (x) notify Switchboard immediately of any unauthorized use of your password or any other breach of security; and (y) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Switchboard has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Switchboard has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Switchboard reserves the right to remove or reclaim any Accounts at any time and for any reason, including but not limited to, claims by a third party that an Account violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Switchboard, or if you have been previously banned from any of the Services.
3.3 Reserving and Attending a Session. Users will be able to reserve a Session via the Website and Services by requesting a minimum of three potential time slots on three different days. Experts will be notified when a Session is requested by a User, and Expert can accept or reject a request. Users must cancel within twenty-hour (24) hours of the Session start time to avoid a cancellation fee. Should a User fail to show up within the first five minutes of the Session start time, User will be charged a no-show fee.
3.4 Rules Regarding Accounts. You acknowledge and agree that you alone are responsible for your Account and Content (defined in Section 4.1) you post. You represent and warrant that any Account profile you post, or your use of the Services, (a) will not breach any agreements you have entered into with any third parties, and (b) will (i) be in compliance with all applicable laws, tax requirements, intellectual property laws, and rules and regulations that apply to you, and (ii) not conflict with the rights of third parties. Please note that Switchboard assumes no responsibility for an Expert’s compliance with any agreements with or duties to third parties, employers, applicable laws, rules and regulations. Switchboard reserves the right, at any time and without prior notice, to remove or disable access to any Account for any reason, including Accounts that we, in our sole discretion, consider to be objectionable for any reason, in violation of this Agreement or otherwise harmful to the Website or Services or other users.
3.5 Agreements between Users and Experts. If you are an Expert, you understand and agree that Switchboard does not act as your contracting agent. Any agreement you enter into with a User is between you and the User and Switchboard is not a party to it.
3.6 Responsibility for Third Parties. You acknowledge and agree that, as an Expert, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who participate in, or are otherwise present for your Sessions at your request or invitation, excluding the User.
4. RESPONSIBILITY FOR CONTENT
4.2 No Obligation to Pre-Screen Content. You acknowledge that Switchboard has no obligation to pre-screen Content (including, but not limited to, Participant Content), although Switchboard reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Switchboard pre-screens, refuses or removes any Content, you acknowledge that Switchboard will do so for Switchboard’s benefit, not yours. Without limiting the foregoing, Switchboard shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
4.3 Storage. Unless expressly agreed to by Switchboard in writing elsewhere, Switchboard has no obligation to store any of Your Content that you Make Available through the Services. Switchboard has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Switchboard retains the right to create reasonable limits on Switchboard’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Switchboard in its sole discretion.
5. FEES AND PURCHASE TERMS
5.1 Payment Terms for Experts.
(a) Payment to Experts. Experts have the ability to set the hourly fee that will be incurred by Users in connection with a given Session (“Hourly Fee”). Fees collected by Users shall be calculated based on the Hourly Fee, and the duration of the Session (“Total User Fee”). The Total User Fee is comprised of the amount designated to the Expert (“Expert Fee”), and the fee collected by us (“Switchboard Fee”). The Expert Fee must include applicable taxes (including value-added tax). Switchboard will not be responsible for any such taxes. Switchboard will not be responsible for any fees in excess of the Total User Fees agreed upon through the Services, including any agreed upon fees between an Expert and a User, to the extent there have been any terms agreed to outside of the Services, or otherwise without notification to Switchboard. If you are an Expert and a Session is requested for you via the Services, you will be required to either accept or reject the Session request, and will use reasonable efforts to respond to all Session requests from Users within a reasonable time period upon receipt of a Session request. When you confirm a Session requested by a User, we will send you a message confirming such reservation. We will authorize a User’s payment method when the Session is booked, and we will invoice and collect the Total User Fees from a User at the completion of the Session based on the duration of the call. We will initiate payment of the Expert Fees to the Expert following receipt of the applicable fees from the User.
(b) Charity Fee. With each Session, the Expert shall select a charity and pay a portion of the Expert Fee to such charity (“Charity Fee”). Experts shall select a Charity Fee between five percent (5%) one-hundred percent (100%) of the Expert’s earnings. Switchboard directs such percentage to the associated Charity.
5.2 Payment Terms for Users. User agrees to pay the Total User Fee associated with each Session. Upon reserving a Session, Switchboard may pre-authorize and charge your Payment Method (as defined below) in the amount designated in the Expert’s Account upon reserving the Session to cover the Services. You, as a User, will be responsible for paying any applicable taxes relating to your payments and will indemnify and hold harmless Switchboard from any and all taxes, including sales tax, based on any payments made by you via the Services. Switchboard does not make any representation or render any advice as to the potential tax implications of any payments made via the Services, and you should consult your tax professional with regards to the same. Except as otherwise set forth herein or agreed to by Switchboard, all fees paid by Users are non-refundable.
5.4 Payment Information. All information that you provide to us or to Stripe must be accurate, current, and complete. By requesting any Session, you authorize Switchboard to charge your payment card (“Payment Method”) in accordance with this Section 5. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT METHOD USED TO PAY ANY FEES. You agree to pay all charges incurred by you or any users of your Account.
5.5 Free Trials and Other Promotions. Any free trial or other promotion (“Promotion”) that provides access to the Services must be used within the specified time of the trial or promotion. At the end of the specified period, your use of that Promotion will expire and any further use of the Service is prohibited unless you pay the Total User Fee.
5.6 Anti-Circumvention. If User engages Expert outside of the Services, Expert will pay Switchboard in accordance with the Expert Fee (including the Charity Fee) identified by the Expert. In the event Expert induces, suggests, or otherwise solicits any User’s request for Discussions outside the Services, Switchboard shall have the right to immediately terminate Expert’s Account without notice, with no liability and no further obligation to Expert.
6.1 Services. Except with respect to Your Content and Participant Content, you agree that Switchboard and its suppliers own all rights, title and interest in the Services, and all parts thereof. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, or the Services.
6.2 Trademarks. “Switchboard” and other related graphics, logos, service marks and trade names used on or in connection with the Services or in connection with the Services are the trademarks of Switchboard and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
6.3 GiveDirectly. GiveDirectly’s name and registered trademark are used with its permission, which in no way constitutes an endorsement, express or implied, of any product, service, company, individual or political position. For more information about GiveDirectly, please visit givedirectly.org.
6.4 American Red Cross. Switchboard Technologies Inc. will donate a percentage of proceeds from the Expert consulting sessions facilitated by its platform. This donation will support the American Red Cross where it is needed most. The American Red Cross name, Emblems and copyrighted materials are used with its permission, which in no way constitutes an endorsement, express or implied, of any product, service, company, opinion or political position. The American Red Cross logo is a registered trademark owned by the American Red Cross. For more information about the American Red Cross, please visit redcross.org.
6.5 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Services. Switchboard prohibits and does not recognize any purported transfers of virtual property effectuated outside of the Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Services.
6.6 Your Content. Switchboard does not claim ownership of Your Content. However, when you as a User or Expert post or publish Your Content on or in the Services, including photographs submitted as part of an Account, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. You grant Switchboard a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Services to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Switchboard, are responsible for all of Your Content that you Make Available on or in the Services.
6.7 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Switchboard through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Switchboard has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Switchboard a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
7. USER CONDUCT
7.1 General Restrictions. In connection with your use of the Services, you shall not:
(a) Make Available any Content that (a) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (d) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (e) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, Switchboard personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) Make Available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(g) Stalk or otherwise harass any other user of our Services; or
(h) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
7.2 Ratings and Reviews. The Services may allow Users and Experts to post reviews, ratings and comments about other Users and Experts (collectively, “Reviews”), and you are solely responsible for any content, opinion, statement, recommendation or advance contained therein. Reviews posted on our Services are Participant Content that is not endorsed by Switchboard and does not represent the views of Switchboard. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. Switchboard shall have the right, but not the obligation to monitor or review any Reviews at any time. Switchboard reserves the right to refuse to post or remove any material submitted or posted in any Review. Notwithstanding the foregoing, you acknowledge that Switchboard is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. Switchboard does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (a) to base any rating or review you post only on your first-hand experience with the applicable Expert or User; (b) you will not provide a rating or review for any Expert or User with respect to which you have an employment relationship or other affiliation; (c) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (d) your review will comply with the terms of this Agreement. If Switchboard determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Participant Content without notice.
8. INVESTIGATIONS. Switchboard may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Switchboard shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Switchboard does not generally monitor user activity occurring in connection with the Services or Content, if Switchboard becomes aware of any possible violations by you of any provision of the Agreement, Switchboard reserves the right to investigate such violations, and Switchboard may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
9. LIMITATIONS OF THE SERVICES.
9.1 Interactions with Others. Users and Experts are solely responsible for their interactions with each other, and any other parties with whom each may interact; provided, however, that Switchboard reserves the right, but has no obligation, to intercede in disputes. Users and Experts agree that Switchboard will not be responsible for any liability incurred as the result of such interactions. YOU UNDERSTAND THAT SWITCHBOARD DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS OR EXPERTS, OR EVALUATE THE CREDENTIALS OF ANY EXPERT. SWITCHBOARD ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ITS USERS OR EXPERTS, OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS OR EXPERTS. SWITCHBOARD MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR EXPERTS, OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OR EXPERTS. SWITCHBOARD RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES) AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
9.2 Content Provided by Other Users. The Services may contain Participant Content provided by other Users, including information within a User’s Account profile. Switchboard is not responsible for and does not control Participant Content. Switchboard has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to Participant Content. You use all Participant Content and interact with other users at your own risk.
9.3 Third-Party Websites. The Services may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of Switchboard. Switchboard is not responsible for any Third-Party Websites. Switchboard provides these Third-Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Website, the Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9.4 Release. You hereby release Switchboard Parties (as defined below) from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. Should you, as a User, have a dispute with respect to any Session provided by an Expert, or fees charged pursuant to the Services, you must address such dispute with the Expert directly (although you may copy Switchboard on the fee disputes). You, as a User, hereby agree to release Switchboard Parties (as defined below) from any losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises from or in any way connected with such disputes and your dealings with Experts. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
10. INDEMNIFICATION. You agree to indemnify and hold Switchboard, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Switchboard Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any users; (e) your interactions with other users; (f) your use of any tools or services provided by a third-party; (g) any use of a tool or service offered by Switchboard that interacts with a third-party website; and (h) your violation of any applicable laws, rules or regulations. Switchboard reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Switchboard in asserting any available defenses. This provision does not require you to indemnify any of the Switchboard Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement or your access to the Services.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SWITCHBOARD EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) SWITCHBOARD MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(b) ANY SESSION RESERVED THROUGH THE SERVICES, OR ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES, IS AT YOUR OWN RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. SWITCHBOARD MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SWITCHBOARD OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, SWITCHBOARD MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT SWITCHBOARD’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SWITCHBOARD PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SWITCHBOARD LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. SWITCHBOARD MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SWITCHBOARD MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY PARTICIPANT CONTENT OBTAINED THROUGH THE SERVICES.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT SWITCHBOARD DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. SWITCHBOARD DOES NOT GUARANTEE OR WARRANT ANY EXPERT’S PERFORMANCE IN THE SESSION OR QUALITY OF THE SESSION.
12. LIMITATION OF LIABILITY
12.1 Disclaimer of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SWITCHBOARD BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER OR NOT SWITCHBOARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY, DEATH, OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (E) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SWITCHBOARD PARTIES BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO SWITCHBOARD BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SWITCHBOARD PARTY FOR (A) PERSONAL INJURY OR DEATH CAUSED BY A SWITCHBOARD PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SWITCHBOARD PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SWITCHBOARD AND YOU. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
13.1 Termination of Services. This Agreement will remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time for any reason through the settings in your Account on the Website. Switchboard may terminate or suspend your Account if (a) you are in breach of the Agreement; (b) if Switchboard decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Switchboard will not have any liability whatsoever to you for any termination or suspension of your Account or related deletion of your information. Further, if you violate or circumvent the payment terms described in Section 5, Switchboard reserves the right to refuse to refund any fees that you have paid to Switchboard for advertising services on the Services on and prior to the date of such violation or circumvention.
13.2 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14. INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to the Services and Content that are not available in your country. These references do not imply that Switchboard intends to announce such Services or Content in your country. The Services are controlled and offered by Switchboard from its facilities in the United States of America. Switchboard makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
15. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Switchboard and limits the manner in which you can seek relief from us.
15.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify,; and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: Corporation Service Company, 251 Little Falls Drive, Wilmington, DE 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Switchboard will pay them for you. In addition, Switchboard will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Switchboard will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
15.4 Waiver of Jury Trial. YOU AND SWITCHBOARD HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Switchboard are instead electing that all disputes, claims and requests shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.5 Waiver of Class or Consolidated Actions. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated.
15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Switchboard Technologies, Inc., 19 Dutch St. #35A, New York, NY 10038, Attn: Legal, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Switchboard username (if any), the email address you used to set up your Switchboard account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.7 Severability. Except as provided in Section 15.7, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
15.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Switchboard.
15.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Switchboard makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Switchboard at the following address: Switchboard Technologies, Inc., 19 Dutch St. #35A, New York, NY 10038, Attn: Legal.
16.1 Electronic Communications. The communications between you and Switchboard use electronic means, whether you visit the Services or send Switchboard e-mails, or whether Switchboard posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Switchboard in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Switchboard provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
16.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Switchboard’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Switchboard shall have the right to freely assign this Agreement, in whole or in part, without your prior consent.
16.3 Force Majeure. Switchboard shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of materials.
16.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: support@Switchboard.co. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, or in the event this Section is held to be unenforceable for any reason, both you and Switchboard agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York, NY.
16.6 Governing Law. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
16.7 Notice. Where Switchboard requires that you provide an e-mail address, you are responsible for providing Switchboard with your most current e-mail address. In the event that the last e-mail address you provided to Switchboard is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Switchboard’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Switchboard at the following address: Switchboard, 19 Dutch St. #35A, New York, NY 10038. Such notice shall be deemed given when received by Switchboard by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.10 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Switchboard are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Switchboard products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.