PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISIONS THAT REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
This Agreement is an electronic contract that sets out the legally binding terms of the relationship between Brand Force and You. Please read these Terms carefully. If You do not accept the Terms stated here, do not use the PINATA Platform and its products or services. By setting up a PINATA Profile, downloading the App or otherwise using the PINATA Platform, You agree to be bound by these Terms, including the PINATA Privacy Statement.
Brand Force may revise these Terms at any time by posting an updated version to this Web page or App. You are responsible for regularly reviewing this Agreement to apprise yourself of potential changes. You agree that continued use of the PINATA Platform after any such changes are made will constitute your agreement to such changes. PINATA does not assume any obligation to personally or individually notify PINATA Users of any modifications to this Agreement, or the creation of additional terms or the elimination of any terms.
Last updated June 13, 2016
(a) Freelance Worker means any authorized User utilizing the Pinata Platform to offer his, her or its services or to otherwise seek out Engagements.
(b) Business – means any authorized User utilizing the Pinata Platform to seek, identify or otherwise engage a Freelance Worker for an Engagement.
(c) User – The terms “You” and “User” as used herein refer to BUSINESS, FREELANCE WORKER and all individuals and/or entities accessing PINATA or the PINATA PLATFORM for any reason.
(e) PINATA Platform: Shall mean a technology platform that enables Users of PINATA’s mobile applications or websites provided as part of the PINATA Products and Services to arrange and schedule field staffing and/or logistics services with third party providers of such services, including independent third party field staffing providers and third party logistics providers
(a) You must be eighteen (18) years of age or older, or the applicable age of majority as defined in Your jurisdiction, whichever is older, to visit or use the PINATA Platform in any manner. By accepting these Terms, You represent and warrant to Brand Force that You are over the age of twenty-one, have reached the age of majority in Your jurisdiction, and that You have the right, authority and capacity to agree to and abide by these Terms. You also represent and warrant to PINATA that You will use the PINATA Platform in a manner consistent with any and all applicable laws and regulations.
(b) In order to access some features of the PINATA Platform and in addition to setting up a PINATA Profile, you will be required to create a PINATA account as described in Paragraph 7 below. You may never use another User’s account. When creating Your account, You must provide accurate and complete information and promptly update Your account if any of your User information changes. You are solely responsible for the activity that occurs on Your account and for keeping Your account password secure. You must notify Brand Force immediately of any breach of security or unauthorized use of Your account. Creating a profile and setting up a valid account will enable Users to offer field marketing opportunities, apply to field marketing opportunities, coordinate logistics and brand messages, submit and receive market reports from the field, submit and receive automated invoices, and manage payments between Brands and Gogetters..
(c) In order to participate in, use and/or obtain access to the PINATA Products and Services in a variety of ways, explained in more detail below, You must register and create an account profile.
(d) If You are merely a VISITOR of the PINATA Platform or download the PINATA App, but fail to register, Your access and rights to use the PINATA Products and Services will be significantly limited. As a VISITOR, You are restricted from certain aspects of the PINATA Platform and PINATA App.
3. Independent Contractor Relationship Between Freelance Workers, PINATA and/or _ Businesses.
Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between the Company and User. You agree that You will not take any position with respect to or on any tax return or application for benefits, or in any proceeding directly or indirectly involving the Company that is inconsistent with your being an independent contractor (and not an employee) of the Company. You are not the agent of the Company and you are not authorized, and must not represent to any third party that you are authorized, to make any commitment or otherwise act on behalf of the Company.
USERS, unless other arrangements are made, will provide all equipment, labor and materials that may be needed to perform any ENGAGEMENT. The Company will not provide any equipment, labor or materials that may be needed for any ENGAGEMENT. Further, FREELANCE WORKERS are solely responsible for determining which ENGAGEMENT they will choose to accept and the manner in which they will provide the requested services. The Company will have no control over the manner in which services are provided or the timing and location of the provision of services.
BUSINESSES are solely responsible for and have complete discretion with regard to selection of any FREELANCE WORKER for any ENGAGEMENT posted through the PINATA Platform. The Company will have no control over, or involvement in, the terms and conditions of any particular ENGAGEMENT such as the manner in which services will be performed or the timing and location of the provision of services.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or projects that are separate and distinct from any business activities User may conduct through the PINATA Platform.
3.1 Benefits and Contributions. As an independent contractor, You are not entitled to or eligible for any benefits that the Company, its parents, subsidiaries, affiliates or other related entities may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Because You are an independent contractor, the Company will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf.
3.2 Taxes and other Withholdings. For all purposes, including but not limited to the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act, income tax withholding requirements and all other federal, state and local laws, rules and regulations, User is and shall be treated as an independent contractor and not as a Company employee. Accordingly, Company will not withhold any employment taxes from any compensation paid to User under this Agreement, and User will be responsible for the payment of all federal, state, and local taxes or contributions imposed or required under unemployment insurance, social security, medical insurance, income tax or other applicable laws, rules or regulations with respect to the performance or rendering of services through the PINATA Platform and/or under this Agreement by User. User agrees to indemnify, defend and hold Company harmless from any costs, expenses, penalties or damages (including attorney’s fees) arising from User’s failure to properly pay such taxes or contributions and/or Company not withholding or remitting employment taxes or contributions relative to compensation paid to User.
As an independent contractor, You are not covered by any insurance that may be provided by the Company to its employees, including, without limitation, health insurance, workers compensation insurance, general liability insurance, and automobile liability insurance. Instead, You are solely and exclusively responsible for Your own insurance. Specifically, in the event that You are injured while working in the course and scope of an ENGAGEMENT through the PINATA Platform, You acknowledge and understand that You will not be covered by any workers compensation insurance coverage that the Company may provide to its employees. Further, in the event that Your actions cause an injury to a third party while You are working in the course and scope of an ENGAGEMENT obtained through the PINATA Platform or which is otherwise covered by this Agreement, You acknowledge and understand that You will not be covered by any general liability or automobile liability insurance coverage that the Company may have, and that the Company is not making any commitment to defend and/or indemnify You in such circumstances, and specifically denies any such obligation.
4. Use of PINATA Content and Platform.
The PINATA Platform is a technology platform that enables Users of PINATA’s mobile applications or websites provided as part of the PINATA Products and Services to arrange and schedule field staffing and/or logistics services with third party providers of such services, including independent third party field staffing providers and third party logistics providers under agreement with PINATA or certain of PINATA’s affiliates (“Third Party Providers”). PINATA is the owner of the contents of the PINATA Platform, and of all other Web sites and Apps under PINATA’s control (collectively referred to as “PINATA Platform”), whether partial or otherwise including but not limited to data, text, graphics, images, video content, logos, icons, software, audio content, and other PINATA content (collectively, “PINATA Content”) .
Subject to the other terms and conditions set forth herein, PINATA authorizes You to view and access a single copy of the content available on or from the PINATA Platform solely for Your personal use. The PINATA Platform and PINATA Content are protected under both United States and foreign copyright, trademark and other laws. All PINATA Content is the property of PINATA or its content suppliers or clients. The compilation (meaning the collection, arrangement and assembly) of all content on the PINATA Platform and PINATA Content is the exclusive property of PINATA and is protected by United States and foreign copyright, trademark, and other laws. Unauthorized use of the PINATA Platform and PINATA Content may violate these laws, and is strictly prohibited. You must retain all copyright, trademark, service mark and other proprietary notices contained in the original PINATA Content on any authorized copy You make of the PINATA Content.
You agree not to sell or modify the PINATA Content or reproduce, display, publicly perform, distribute, or otherwise use the PINATA Content in any way for any public or commercial purpose, in connection with products or services that are not those of PINATA, in any other manner that is likely to cause confusion among consumers, that disparages or discredits PINATA or its licensors, that dilutes the strength of PINATA’s or its licensor’s property, or that otherwise infringes PINATA’s or its licensor’s intellectual property rights. You further agree to in no other way misuse PINATA Content that appears on the PINATA Platform or use such content in a manner not specifically permitted herein or by written agreement with PINATA. Unless specifically permitted herein or in writing by PINATA, the use of the PINATA Content on any other Web site, App or in a networked computer environment for any purpose is prohibited. Any code that PINATA creates to generate or display any PINATA Content or the pages making up any PINATA Platform is also protected by PINATA’s copyright, and You may not copy or adapt such code.
(4)(ii) Your Ownership Rights. Subject to the licenses granted in this Agreement, You do not retain any right, title and interest, including without limitation all worldwide intellectual property rights, in and to the PINATA Content of any information that is placed, submitted, posted or displayed by You on or through the PINATA Platform. You grant PINATA an unlimited, worldwide, perpetual, non-exclusive right and license to use, display, distribute, copy, share, modify and create derivative works of Your PINATA PROFILE Content and any additional PINATA Platform information that You provide (including but not limited to photographs, video, commentary, and feedback) without further compensation or payment. Your request to remove Your PINATA PROFILE Content or any PINATA Content which You have properly made a claim to, does not alter or effect PINATA’s unlimited, worldwide, perpetual, non-exclusive right and license to use, display, distribute, copy, share, modify and create derivative works. You specifically acknowledge herein that You have and retain no rights to the PINATA Content You submit in connection with a prospective or active ENGAGEMENT, whether it is provided to PINATA or to the BUSINESS that posts the ENGAGEMENT.
You acknowledge that You are aware that PINATA has limited practical ability to control or monitor possible infringement of Your intellectual property rights by other parties and that PINATA assumes no responsibility for controlling or monitoring such intellectual property rights or any potential infringement thereof. In addition, PINATA is not responsible for enforcing Your intellectual property rights by suing or taking other legal or other action against infringers who fail to cease using Your Content or intellectual property upon revocation. You or a third party licensor, as appropriate, are responsible for protecting Your intellectual property rights. PINATA may, at its complete and absolute discretion, choose to assist You in connection with protecting or enforcing Your intellectual property rights in a particular instance. In such event, this does not mean that PINATA has an obligation to do so in that or in any other instance. You acknowledge and agree that PINATA has no obligation whatsoever to protect or enforce Your intellectual property rights.
(4)(iii) PINATA’s Limited Trademark License to You. During the term of this Agreement, and subject to Your compliance with the terms and conditions of this Agreement, You will have the right to use the trade names, trademarks, logos and designations in or associated with the PINATA marks solely for purposes of identifying PINATA and solely in connection with Your permitted activities under this Agreement. You agree that the PINATA marks and all associated goodwill are and will remain the sole property of PINATA, that any goodwill generated as a result of Your licensed use of PINATA marks belongs exclusively to PINATA and inures solely to the benefit of PINATA, and that Your use of PINATA marks is subject to PINATA’s control of the quality of any products or services with respect to which You may be authorized to use PINATA marks.
(4)(iv) Subject to your compliance with these Terms, PINATA grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (a) access and use the PINATA Platform on your personal device solely in connection with your use of the PINATA Platform; and (b) access and use any content, information and related materials that may be made available through the PINATA Platform, in each case solely for Your business use and/or benefit.
5. PINATA Platform Restrictions.
You may not use any PINATA Platform in order to transmit, post, distribute, store or destroy material, including without limitation, PINATA Content or User Content (as defined in section 4), (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others, or (c) that is defamatory, obscene, threatening, abusive or offensive.
You warrant and agree that, while using the PINATA Platform and the various services and features offered on or through the PINATA Platform, You will not: (a) impersonate any person or entity, whether actual or fictitious, or misrepresent Your affiliation with any other person or entity; (b) insert Your own or a third party’s advertising, branding or other promotional content into any of the PINATA Platform’s content, materials or services, or use, redistribute, republish or exploit such content or service for any further commercial or promotional purposes; (c) attempt to gain unauthorized access to other computer systems through the PINATA Platform; (d) engage in spidering, screen scraping, database scraping, harvesting of catalogue information, e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of catalogue items or information, users or other information from or through the PINATA Platform or the services offered on or through the PINATA Platform, including without limitation any information residing on any server or database connected to the PINATA Platform or the services offered on or through the PINATA Platform; (e) obtain or attempt to obtain unauthorized access to PINATA’s computer systems, materials or information through any means; (f) use the PINATA Platform or the services made available on or through the PINATA Platform in any manner with the intent to interrupt, damage, disable, overburden, or impair the PINATA Platform or such services, including, without limitation, sending mass unsolicited messages or “flooding” servers with requests; (g) use the PINATA Platform or the PINATA Platform’s services or features in violation of PINATA’s or any third party’s intellectual property or other proprietary or legal rights; (h) use any known or future unknown technology to harvest, names, PINATA Platform User addresses, names or contact information for spam, reverse engineering, data collection, data mining, unsolicited telemarketing or other unwanted nuisance intrusions; (i) use any device, software or scheme that would interfere with the proper functioning of the PINATA Platform, or any transaction via the PINATA Platform; (j) place an undue burden or interfere with the lawful transmission of our content to our Users, use any device to limit PINATA’s total free access to the web infrastructure, and related App infrastructure; and (k) use the PINATA Platform or the PINATA Platform’s services in violation of any applicable law. You further agree that You will not attempt (or encourage or support anyone else’s attempt) to engage in any of the foregoing prohibited activities or to circumvent, reverse engineer, decrypt, disassemble, decompile or otherwise alter or interfere with the PINATA Platform or the PINATA Platform’s services, or any content thereof, or make unauthorized use thereof. You agree that You will not use the PINATA Platform in any manner that could damage, disable, overburden, or impair the PINATA Platform or interfere with any other party’s use and enjoyment of the PINATA Platform. You also agree that You will not obtain, use or access, or attempt to obtain, use or access, any materials or information through any means not intentionally made publicly available or provided for through the PINATA Platform.
6. Uses and Restrictions.
The ENGAGEMENT Posting, profile database (“PINATA Profile Database”) and other features of the PINATA Platform may be used only for lawful purposes by FREELANCE WORKERS seeking temporary engagements. Upon creating a PINATA Profile in the PINATA Platform, it may be used only for lawful purposes by individuals seeking to be matched with BUSINESSES for professional purposes as described herein.
PINATA specifically prohibits any other use of the PINATA Platform, and You agree not to do any of the following: (a) post or submit to any PINATA Platform any incomplete, false, misleading or inaccurate information including but not limited to biographical information, information which is not Your own that is represented as your own, information submitted for publication in the PINATA Platform, information submitted for publication in any PINATA newsletter or communication; (b) post on any PINATA Platform any franchise, pyramid scheme, “club membership”, distributorship or sales representative agency arrangement or other business opportunity which requires an upfront or periodic payment; (c) send unsolicited mail or e-mail, make unsolicited phone calls or send unsolicited faxes regarding promotions and/or advertising of products or services to a User of any PINATA Platform; (d) delete or revise any material posted by any other person or entity; (e) post an email address in an ENGAGEMENT Posting for contact purposes; (f) take any action that imposes an unreasonable or disproportionately large load on any PINATA Platform’s infrastructure; or (g) submit any information or request for information that violates any federal, state or local law, including laws related to non-discrimination.
Further, the following User Content is prohibited on the PINATA Platform. The list below is for illustration purposes only and is not a complete list of all prohibited User Content: Content that: (1) is implicitly or explicitly offensive, such as User Content that engages in, endorses or promotes racism, bigotry, discrimination, hatred or physical harm of any kind against any group or individual; (2) harasses, incites harassment or advocates harassment of any group or individual; (3) involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing or “spamming”; (4) promotes or endorses false or misleading information or illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (5) promotes or endorses an illegal or unauthorized copy of another person’s copyrighted work, such as providing or making available pirated computer programs or links to them, providing or making available information to circumvent manufacture-installed copy-protect devices, or providing or making available pirated music or other media or links to pirated music or other media files; (6) contains restricted or password only access pages, or hidden pages or images; (7) displays or links to pornographic, indecent or sexually explicit material of any kind; (8) provides or links to material that exploits people under the age of 18 in a sexual, violent or other manner, or solicits personal information from anyone under 18; or (9) provides instructional information about illegal activities or other activities prohibited by these Terms, including without limitation, making or buying illegal weapons, violating someone’s privacy, providing or creating computer viruses or pirating any media; (10) solicits passwords or personal identifying information from other Users and (11) violates any federal, state or local law including but not limited to laws prohibiting discrimination.
PINATA may in its sole discretion investigate the use or potential use of such prohibited content and take appropriate action including, but not limited to, removal of the User Content and barring the User from further use of the PINATA Platform or Services. The Company has no liability for or responsibility to Users for performance or nonperformance of such activities.
Although PINATA reserves the right to do so, PINATA does not necessarily monitor any materials posted, transmitted, or communicated to or within the PINATA Platform. If notified by a User of User Content or other materials which allegedly do not conform to these Terms, PINATA may in its sole discretion investigate the allegation and determine whether to remove or request the removal of the User Content or to take any other appropriate action. The Company has no liability or responsibility to Users for performance or nonperformance of such activities.
In order to access and use the features of the PINATA Platform, You acknowledge and agree that You will provide PINATA with access to the geo-location function, camera, photos, and microphone on your mobile device, including the resulting data (collectively MOBILE INFORMATION), in order to complete or participate in an ENGAGEMENT. Access to the MOBILE INFORMATION provided by You to PINATA will be limited to the necessary participation and completion of ENGAGEMENT related activities, and will include the collection and retention of the resulting data for diagnostic review and reporting. You hereby give your express consent to PINATA to access those features and functions of Your mobile device in order to provide and use the Service. You automatically grant to PINATA and its affiliates an irrevocable, royalty-free, perpetual, fully paid, non-exclusive right (including moral rights) and worldwide license to use, copy, reproduce, modify, adapt, publish, translate, communicate to the public, perform, display, and distribute such MOBILE INFORMATION (in whole or in part) and to prepare derivative works of, or incorporate into other works (in any form, media or technology now known or later developed, for the full term of any rights that may exist in such content) such MOBILE INFORMATION, and to grant and authorize sublicenses thereof (through multiple tiers). If You disable any of these functions or access points to MOBILE INFORMATION on Your mobile device, you may not be able to participate in or complete an ENGAGEMENT, and this may affect proper payment as described in Section 10.
7. Accounts, Requirements, Registration Information and Password.
When You register with any PINATA Platform, including but not limited to as any User (including BUSINESS, FREELANCE WORKER, You will be asked to create a PINATA Account or other account and provide PINATA with certain information including, without limitation, a valid email address (Your “Information”). Registration requires that You have a smart phone which is capable of downloading and running the PINATA Platform. Information You submit will be used in accordance with PINATA’s Privacy Statement. You are responsible for providing accurate Information in order to create a PINATA Account, including those obligations noted in Section 2. Your responsibilities as described herein extend to any PINATA Account created automatically through any third party site authentication module provided.
You understand and acknowledge that You have no ownership rights in Your PINATA Account, and that if You cancel Your PINATA Account, all Your PINATA Account Information, within PINATA or the PINATA Platform, including but not limited to, PINATA Profiles and Information saved in the PINATA Profile Database, including but not limited to cover letters, network contacts, saved Engagements, questionnaires and email mailing lists, may be marked as deleted in PINATA’s databases and may be removed from any public area of the PINATA Platform. Information may continue to be available for some period of time because of delays in propagating such deletion through PINATA’s web servers. In addition, third parties may retain cached copies of Your PINATA Account Information. PINATA will retain certain information as required by applicable law.
Cancelling Your PINATA Account will have no effect on the PINATA Content that another User may continue to have access to through their own saved or retained version of the PINATA Platform. You specifically understand that the PINATA Platform is designed to connect Users (such as BUSINESSES and FREELANCE WORKERS), and that some required PINATA Account information necessarily will be shared with those Users.
You are responsible for maintaining the confidentiality of Your PINATA Account including your personal information passwords, as applicable. You may not share Your password or other account access information with any other party, temporarily or permanently, and You shall be responsible for all uses of Your PINATA Account registration and passwords, whether or not authorized by You. You agree to immediately notify PINATA of any unauthorized use of Your PINATA Account or passwords, as the case may be.
By creating an Account, you agree that PINATA may send you informational text (SMS) messages as part of the normal business operation of your use of the PINATA Platform. You may opt-out of receiving text (SMS) messages from PINATA by following the procedures provided in our frequently asked questions section of the PINATA Platform. Data rates might apply on Your use of SMS notifications. It is Your obligation to check with Your carrier regarding these charges, which You shall be responsible for. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the PINATA Platform. You agree that using the PINATA Platform requires You to allow at least one of the following communication methods, from PINATA delivered to You through your Mobile Device where the PINATA Platform App resides, (a) SMS notifications; (b) Push Notifications or (c) Email notifications. In the event that You do not permit at least one of these methods of active communication from PINATA to You, this may result in significant inabilities to begin, participate in, and complete an ENGAGEMENT.
You are responsible for obtaining the data network access necessary to use the PINATA Platform. Your mobile network’s data and messaging rates and fees may apply if you access or use the PINATA Platform from a wireless enabled device. You are responsible for acquiring and updating
compatible hardware or devices necessary to access and use the PINATA Platform and any updates thereto. PINATA does not guarantee that the PINATA Platform, or any portion thereof, will function on any particular hardware or devices. In addition, the PINATA Platform may be
subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
8. User Content and Submissions.
User Content shall include, without limitation works in any form, media, or technology whether now known or later developed, messages, audio, video, photos, text, images, compilations or other information that You post on any PINATA Platform or transmit to other Users. You are solely responsible for Your PINATA Account information and Your User Content. In addition to the restrictions set forth in Section 6, You agree that in submitting User Content or otherwise using any PINATA Platform that You will not impersonate any person, or submit any materials to PINATA that are false, inaccurate, misleading, unlawful, or are otherwise in violation of Your obligations under these Terms.
In addition to those rights described in Section 4, By posting User Content to any public area of any PINATA Platform, including without limitation, PINATA Profiles, forums, message boards, You automatically grant to PINATA and its affiliates an irrevocable, royalty-free, perpetual, fully paid, non-exclusive right (including moral rights) and worldwide license to use, copy, reproduce, modify, adapt, publish, translate, communicate to the public, perform, display, and distribute such User Content (in whole or in part) and to prepare derivative works of, or incorporate into other works (in any form, media or technology now known or later developed, for the full term of any rights that may exist in such content) such User Content, and to grant and authorize sublicenses thereof (through multiple tiers).
WORKERS and BUSINESSES also explicitly hereby irrevocably grants to PINATA the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to: use, and permit to be used, their Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the PINATA Platform in any media and Use, and permit to be used, such FREELANCE WORKER and/or BUSINESS name, likeness and identity in connection with the PINATA Platform.
You also represent and warrant that You have the right to grant or that the holder of any rights, including moral rights in such content, has completely and effectively waived all such rights and validly and irrevocably granted to You the right to grant, the license stated above. If You post User Content in any public area of any PINATA Platform, You also permit any User to access, display, view, store and reproduce such User Content for business use and/or benefit. Subject to the foregoing, the owner of such User Content placed on any PINATA Platform retains any and all rights that may exist in such User Content.
PINATA acts as a passive conduit through its technology platform to arrange and schedule field staffing and/or logistics services with third party providers of such services. PINATA has no obligation to screen User Content, communications or information and is not responsible for screening or monitoring User Content or information exchanged between Users. However, the Company may review and remove any User Content that, in its sole judgment, violates these Terms, violates applicable laws, rules or regulations, is abusive, disruptive, offensive or illegal, or violates the rights of, or harms or threatens the safety of, Users of any PINATA Platform or that the Company otherwise deems is inconsistent with its business interests.
PINATA is not a BUSINESS or WORKER as defined above. PINATA is not responsible for making, decisions about specific FREELANCE WORKER’S relative to specific ENGAGEMENTS. PINATA may, through the PINATA Platform’s automated process disqualify FREELANCE WORKERS for certain ENGAGEMENTS where minimum criteria set by the BUSINESS for the ENGAGEMENT are not met. Additionally, the PINATA Platform may, in some circumstances, identify certain FREELANCE WORKERS as meeting the criteria set by BUSINESSES for certain ENGAGEMENTS based upon its database of information from current and former Users. However, the decision to select a FREELANCE WORKER is solely and always within the complete and absolute discretion of the BUSINESS and not PINATA. You expressly acknowledge this fact and will hold PINATA harmless for any such selection(s) or decision(s).
PINATA reserves the right to expel Users and prevent their further access to the PINATA Platform and/or use of PINATA services for violating the Terms or applicable laws, rules or regulations. PINATA may take any action with respect to User Content that it deems necessary or appropriate in its sole discretion if it believes that such User Content could create liability for PINATA, damage PINATA’s brand or public image, cause PINATA to lose (in whole or in part) the services of its ISPs or other suppliers or is in any way inconsistent with PINATA’s interests.
PINATA does not represent or guarantee the truthfulness, accuracy, or reliability of User Content or any other communications posted by Users or endorse any opinions expressed by Users. You acknowledge that any reliance on material posted by other Users will be at Your own risk.
It is PINATA’s policy to only accept or consider creative ideas, suggestions, inventions or materials which we have specifically requested. If You send us creative suggestions, ideas, drawings, concepts, inventions, or other information (collectively the “Submission”), the Submission will be the property of PINATA. None of the Submission will be subject to any obligation of confidentiality on our part and we will not be liable for any use or disclosure of any such Submission. You agree that PINATA will have an irrevocable, royalty-free, perpetual, fully paid non-exclusive right (including moral rights) and worldwide license to use, copy, reproduce, modify, adapt, publish, translate, communicate to the public, perform, display, and distribute such Submission (in whole or in part) and to prepare derivative works of, or incorporate into other works (in any form, media or technology now known or later developed, for the full term of any rights that may exist in such content) such Submission, and to grant and authorize sublicenses thereof (through multiple tiers).
(a) As a BUSINESS, You are responsible for maintaining the confidentiality of Your PINATA Account, PINATA Profile and passwords, as applicable. You may not share Your password or other account access information with any other party under any circumstances, and whether temporarily or permanently, and You will be responsible for all uses of Your PINATA Platform registrations and passwords, whether or not authorized by You. You agree to immediately notify PINATA of any unauthorized use of Your PINATA Account, PINATA Profile, or passwords. As a BUSINESS, You may also be provided personal information of FREELANCE WORKERS who may participate in one or more ENGAGEMENT created by You. As a BUSINESS, You agree to maintain the confidentiality of that personal FREELANCE WORKER information, and may only use that information solely for the purpose of effectively completing the ENGAGEMENT.
BUSINESSES are solely responsible for their ENGAGEMENT postings on the PINATA Platform. PINATA is entirely separate and distinct from BUSINESS Users of the PINATA Platform. PINATA does not create, screen or post ENGAGEMENTS and is not involved in or responsible for any ENGAGEMENT selection decisions made by any BUSINESS or other entity posting ENGAGEMENTS on any PINATA Platform. BUSINESS Users are solely responsible for the content of their ENGAGEMENT postings and for all selection decisions regarding a specific ENGAGEMENT posting.
You understand and acknowledge that if You cancel Your PINATA Account or Your PINATA Account is terminated, all Your PINATA Account information from the PINATA Platform, including saved resumes, network contacts, and email mailing lists, may be marked as deleted and may be deleted from PINATA’s databases. Information may continue to be available, however, including in instances where there are delays in propagating such deletion through PINATA’s web servers.
PINATA reserves the right to restrict the number of e-mails, text messages, or notifications which a BUSINESS may send to Users and/or FREELANCE WORKERS to a number which PINATA deems appropriate in its sole discretion.
PINATA Profiles derived from User Content may also be made available to BUSINESSES through the PINATA Platform. PINATA does not make any representations regarding the accuracy or validity of such derived works or their appropriateness for evaluation by BUSINESSES. Derived PINATA Profiles may vary significantly from User Content.
9(b) ENGAGEMENT Postings:
A ENGAGEMENT Posting may not contain: (a) any hyperlinks, other than those specifically authorized by PINATA; (b) misleading, unreadable, or “hidden” keywords, repeated keywords or keywords that are irrelevant to the job opportunity being presented, as determined in PINATA’s reasonable and sole discretion; (c) the names, logos or trademarks of businesses other than those of Your company and its business affiliates except where expressly authorized by PINATA; (d) irrelevant information which is unrelated to the ENGAGEMENT posting; (e) inaccurate, false, or misleading information; and (f) material or links to material of a sexual or violent nature or which is unlawful, including but not limited to material that is exploitative or solicitous with regard to minors.
9(c) You may not use Your ENGAGEMENT Posting (a) in a manner that does not comply with applicable local, state, national and international laws, including but not limited to laws relating to data privacy, data access and use, and intellectual property and laws prohibiting discrimination; (b) to advertise for direct competitors of PINATA or provide content that contains links to any direct competitor of PINATA; (c) to post any business opportunity that requires an upfront or periodic payment from the FREELANCE WORKER (d) to advertise sexual services or seek FREELANCE WORKER(S) for ENGAGEMENTS of a sexual nature; (e) to endorse a particular political party, political agenda, political position or issue; (f) to promote a particular religion; (g) to post ENGAGEMENTS located in countries subject to economic sanctions of the United States Government; and (e) except where required by applicable law, post ENGAGEMENTS which require the FREELANCE WORKER to provide personal information, information relating to his/her race, gender, ethnicity, national origin, age, religion, sexual orientation, health, genetics, disability or membership in any other category or group protected by law or information relating to his/her political beliefs, philosophical or religious beliefs, membership in a trade union, physical or mental health, sexual practices/activities, criminal record or background.
9(d) PINATA reserves the right to remove any ENGAGEMENT Posting or User Content from any PINATA Platform, which in PINATA’s sole discretion, does not comply with the above Terms, or if any User Content is posted that PINATA believes is not in the best interest of PINATA.
10. Billing and Payment
Compensation for projects completed or services provided in connection with ENGAGEMENTS is determined exclusively by the Users with no involvement from PINATA.
PINATA charges a service fee for each ENGAGEMENT that is completed or cancelled by BUSINESS within 72 hours of the EVENT, which is determined based on the particular ENGAGEMENT and will be determined and conveyed to the BUSINESS at the time the ENGAGEMENT is created and posted on the PINATA Platform.
At the time a BUSINESS engages a FREELANCE WORKER for a particular project at the agreed upon price and the ENGAGEMENT is scheduled through the PINATA Platform, PINATA will notify the BUSINESS that a preauthorization or reserve will be placed on its credit card for the total amount of funds required for paying the FREELANCE WORKER for the services to be completed pursuant to the ENGAGEMENT, plus PINATA’s service fee for that ENGAGEMENT, 72 hours prior to the EVENT. The reserve or hold on the BUSINESS’s credit card will continue for up to ten (10) days.
Once the ENGAGEMENT has occurred (and the FREELANCE WORKER’S services have been performed), FREELANCE WORKER must, close out the ENGAGEMENT on the PINATA Platform by completing the report form, which requires the FREELANCE WORKER to provide information regarding the ENGAGEMENT and services performed. Failure of the FREELANCE WORKER to timely complete the report form may delay or adversely impact payment for services rendered for the ENGAGEMENT.
Shortly after completion and submission of the report form by the FREELANCE WORKER, PINATA will provide a final invoice to the BUSINESS. The final invoice may vary, however, from the preauthorization amount depending on the circumstances. For example, if the services actually required and performed are beyond those which were originally contemplated or agreed upon or if the FREELANCE WORKER incurs unanticipated expenses that were not required for the original ENGAGEMENT, additional fees may apply. Once the final invoice is provided to the BUSINESS, it will have 2 business days to dispute the amount by completing and submitting a payment dispute notice through PINATA. BUSINESS agrees that its failure to dispute payment in this manner within the two business day period will operate as its consent to, and authorization of, the full charge for payment (including the ENGAGEMENT amount for the FREELANCE WORKER as well as the PINATA’s service fee) reflected in the final invoice. BUSINESS expressly waives any right it might otherwise have to dispute such a charge through its credit card company, legal process or other means after the 2 business day period.
After the process above has been completed, PINATA will, within a two-day period, issue payment to the FREELANCE WORKER for services performed at the EVENT and retain the portion of the payment constituting the PINATA service fee.
BUSINESS may, however, prior to the passage of 2 business days from the time the ENGAGEMENT was scheduled to be begin, dispute payment based on the following:
(1) BUSINESS cancels or reschedules the time for the ENGAGEMENT. In the event of BUSINESS cancellation, however, BUSINESS must notify the Company and FREELANCE WORKER of the cancellation by selecting the “CANCEL ASSIGNMENT” or “CANCEL PROGRAM” option in the PINATA website or app or notifying a PINATA representative via email prior to 72 hours before the ENGAGEMENT is scheduled to begin in order to avoid incurring fees. Failure to do so will result in incurrence of the PINATA service fee as well as the FREELANCE WORKER’S fee for the ENGAGEMENT.
(2) FREELANCE WORKER withdraws from the ENGAGEMENT and another suitable FREELANCE WORKER cannot be retained through PINATA for the ENGAGEMENT;
(3) FREELANCE WORKER fails to appear at the ENGAGEMENT or is unreasonably late for the ENGAGEMENT;
(4) FREELANCE WORKER fails to complete the project or otherwise perform the services required of the ENGAGEMENT in substantially the same manner as agreed upon by the FREELANCE WORKER and BUSINESS; or
(5) In order to dispute any payment, BUSINESS must fully complete and submit the electronic payment dispute form through the PINATA Platform within the 2 business day period.
If PINATA is notified by the BUSINESS of a dispute after the 2 business day period described above, PINATA is, consistent with the terms above, under no obligation to reverse or credit the charges for the ENGAGEMENT at issue or take any other action (although it may do so if, in PINATA’s discretion, it is deemed warranted). Further, after the 2 business day period, under no circumstances will a full or partial credit or charge back include the PINATA service fee associated with the ENGAGEMENT.
If Business submits a payment dispute form within the 2 business day period, PINATA will temporarily defer processing the payment for the ENGAGEMENT and investigate the dispute (which may or may not include communications with the FREELANCE WORKER). While PINATA will act in good faith to promptly do so, the timing and nature of the investigation are within the sole and complete discretion of PINATA. Upon completion of the investigation, PINATA will reach a determination and inform the Users of whether the charge (or a partial charge) for payment will be processed. User agrees that in the event of a dispute, PINATA’s determination regarding payment will be final and expressly waives any right it might otherwise have to seek relief from PINATA through legal proceedings or other means.
Notwithstanding the foregoing, if a dispute arises between BUSINESS and FREELANCE WORKER over a payment for an ENGAGEMENT, PINATA generally will attempt to informally help the parties resolve the dispute.
11. Copyright Agent.
We respect the intellectual property rights of others, and require that users of the PINATA Platform do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, please forward the following information to PINATA, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
Your address, telephone number, and email address;
A description of the copyrighted work that You claim has been infringed;
A description of where the alleged infringing material is located;
A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf.
Attn: Copyright Agent
Kain Spielman, P.A.
Attn: Darren – PINATA Admin
900 Southeast Third Avenue, Suite 205
Ft Lauderdale, Florida 33316
Fax 954 – 768 – 0158
dspielman @ complexip.com
12. PINATA’s Liability.
PINATA may take any action with respect to User Content that it deems necessary or appropriate in its sole discretion including but not limited to circumstances in which it believes that such User Content could create liability for PINATA, damage PINATA’s brand or public image, or cause PINATA to lose (in whole or in part) the services of its ISPs or other suppliers. While PINATA reserves the right in its sole discretion to remove User Content, ENGAGEMENTS, or other material from the PINATA Platform from time to time, PINATA does not assume any obligation to do so and disclaims any liability for failing to take any such action.
In addition, note that there are risks, including but not limited to the risk of physical harm, of dealing with strangers, foreign nationals, underage persons or people acting under false pretenses. You assume all risks associated with dealing with other Users, BUSINESSES, and FREELANCE WORKERS with whom You come in contact through the PINATA Platform. By its very nature, other User information may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You should use caution and common sense when using the PINATA Platform.
Because of the difficulties associated with User authentication on the Internet, PINATA does not confirm that any User is who they claim to be. Because the nature of the PINATA Platform is to facilitate independent User-to-User dealings, PINATA does not control the activities of participants on any PINATA Platform. In the event that You have a dispute with one or more Users, You release PINATA (and our agents and employees) from claims, demands and damages (actual and consequential and direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
The PINATA Platform and PINATA Content may contain inaccuracies or typographical errors. PINATA makes no representations about the accuracy, reliability, completeness, or timeliness of any PINATA Platform or PINATA Content. The use of the PINATA Platform and the PINATA Content is at Your own risk. Changes are periodically made to PINATA Platform and may be made at any time within the sole discretion of PINATA. You acknowledge and agree that You are solely responsible for the form, content and accuracy of any Content placed by You on the PINATA Platform. BUSINESSES are solely responsible for their ENGAGEMENT postings on PINATA Platform. PINATA is not to be considered to be a BUSINESS with respect to Your use of any aspect of the PINATA Platform and PINATA will not be responsible for any ENGAGEMENT related decisions, for whatever reason, made by any BUSINESS on any PINATA Platform.
PINATA cannot guarantee and does not promise any specific results from use of the PINATA Platform. No advice or information, whether oral or written, obtained by a User from PINATA or through or from the PINATA Platform shall create any warranty not expressly stated herein.
13. Disclaimer Of Warranties.
THE PINATA PLATFORM, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED “AS IS,” “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. WE DO NOT WARRANT, REPRESENT OR COVENANT THAT THE WEB SITE, APP OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE WEBSITE OR APP WILL MEET USERS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE WEBSITE OR APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. PINATA ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT, SMART PHONE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE WEBSITE OR APP, OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, AUDIO OR SOFTWARE FROM THE WEBSITE OR APP. IF YOU ARE DISSATISFIED WITH THE SITE OR APP, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE WEBSITE OR APP.
WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE WEBSITE OR APP IS CORRECT AND UP-TO-DATE. WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED ON THE WEBSITE OR APP AT ANY TIME AND WITHOUT ANY PRIOR WARNING. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE SITE OR APP, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITE OR APP.
WITHOUT LIMITATION OF THE ABOVE IN THIS SECTION, PINATA AND ITS AFFILIATES, SUPPLIERS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE WEB SITE OR APP, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS, DOCUMENTS AND OTHERWISE ON THE WEBSITE OR APP, OR IN CORRESPONDENCE WITH ITS AGENTS. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE WEBSITE OR APP ARE PROVIDED BY PINATA “AS IS,” EXCEPT TO THE EXTENT, IF AT ALL, OTHERWISE SET FORTH IN A LICENSE OR SALE AGREEMENT SEPARATELY ENTERED INTO IN WRITING BETWEEN YOU AND PINATA OR ITS LICENSOR OR SUPPLIER.
14. Limitation Of Liability.
IN NO EVENT SHALL BRAND FORCE, LLC ITS AFFILIATES OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE, WHETHER IN AN ACTION BASED ON A CONTRACT INDEMNIFICATION, OBLIGATION, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), COLLATERALLY OR ARISING FROM ANY STATUTORY DUTY, PRE-CONTRACT OR OTHER REPRESENTATIONS, OR OTHERWISE, HOWEVER ARISING, FOR ANY ECONOMIC LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS) OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE WEBSITE OR APP, OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE WEBSITE OR APP, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE WEBSITE OR APP.
IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS OR YOUR USE OF THE WEBSITE OR APP EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO PINATA FOR YOUR USE OF THE WEBSITE OR APP, OR PURCHASE OF PRODUCTS OR SERVICES VIA THE WEBSITE OR APP.
SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE FOREGOING LIMITATIONS OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
15. Local Standards.
We do not represent that materials on the PINATA Platform are appropriate for use in all locations. Persons who choose to access the PINATA Platform do so on their own initiative, and are responsible for compliance with any local or other applicable laws..
16. Links To Content And Other Sites.
The PINATA Platform may contain links to third party Web sites and content. These links are provided solely as a convenience to You and not as an endorsement by PINATA of the contents on such third-party Web sites. PINATA is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third party Web sites. If You decide to access linked third-party Web sites, You do so at Your own risk.
The PINATA Platform may contain links to social media sites, including but not limited to authentication modules and ENGAGEMENT re-posting/sharing modules. These links are provided solely as a convenience to You and not as an endorsement by PINATA of the content on such social media sites. PINATA is not responsible for the content, accuracy of such content, or manner in which such content is provided to these third party social media sites. You specifically agree that the use of these social media sites in conjunction with PINATA is at Your own risk.
17. USER Removal from The PINATA Platform
Failure of any USER to comply with any of the terms and conditions of use set forth herein may result in User being barred temporarily or permanently from further use of/access to the PINATA Platform. Acting in any manner the Company deems inconsistent with its business interests also may result may result in User being barred temporarily or permanently from further use of/access to the PINATA Platform.
Without limiting the generality of the foregoing, FREELANCE WORKER also may be barred temporarily or permanently from further use of/access to the PINATA Platform for the following reasons: (1) failure to show for an ENGAGEMENT at the time set in the ENGAGEMENT without providing prior notice through the PINATA Platform unless there are extenuating circumstances as determined by PINATA in its sole discretion; (2) FREELANCE WORKER receives a substandard PINATA ranking for one or more prior ENGAGEMENTS; (3) two (2) no shows with prior notice within a 28 day period.
18. Arbitration Agreement.
Company and User mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration instead of a court or jury trial. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and applies to any and all claims arising out of or relating to this Agreement, the User’s classification as an independent contractor, User’s provision of services, User’s use of the PINATA Platform, any payments made or received by User through PINATA or arising out of or relating to the acceptance or performance of projects posted on PINATA, the termination of this Agreement, and all other aspects of the User’s relationship (or the termination of its relationship) with Company, past, present or future, whether arising under federal, state or local statutory and/or common law. However, this Agreement does not apply to litigation between User and the Company, if any, pending in a state or federal court as of the date of User’s receipt of this Agreement, nor does it apply to any claim that may not be arbitrated as provided by an Act of Congress or lawful, enforceable Executive Order.
(a) If either party initiates arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include: (1) the name and address of the party seeking arbitration; (2) a statement of the legal and factual basis of the claim; and (3) a description of the remedy sought. Any demand for arbitration by User must be delivered to the Company at 6 Harrison Street, 6th floor, New York, NY 10013.
(b) Class Action Waiver. Company and User mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator will not have any authority to hear or arbitrate any class, collective or representative action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, representative or private attorney general action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, representative and/or private attorney general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
(c) User agrees and acknowledges that entering into this arbitration agreement does not change User’s status as an independent contractor in fact and in law, that User is not an employee of Company and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
(d) Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), except as follows:
(1) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute.
(2) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in New York, New York.
(3) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that Company shall pay all of the Arbitrator’s fees and costs.
(4) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(5) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(6) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(7) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction.
(8) Either Company or Contractor may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
(e) Regardless of any other terms of this arbitration agreement, claims may be brought before, and remedies awarded by, an administrative agency (such as the National Labor Relations Board, the U.S. Department of Labor or the Equal Employment Opportunity Commission) if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate.
(f) The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.Google.com or www.Bing.com.
(g) This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. In the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable.
You agree to defend, indemnify, and hold harmless Brand Force LLC, its parents, affiliates, and their respective officers, directors, employees and agents, from and against any claims, actions, demands, losses, damages, costs and other expenses (including without limitation reasonable legal and accounting fees and costs), alleging resulting from or relating to (i) any User Content or other material You provide to any PINATA Platform, (ii) Your use of any PINATA Content (iii) Your breach of any representation warranty, term, covenant or obligation in this Agreement; (iv) or any negligent or intentional act or omission committed by You, in connection with the ENGAGEMENT, including but not limited to the performance of or the provision of services under any PINATA Engagement; ; or (v) losses caused by any unauthorized use of Your account.
The Company will provide notice to You promptly of any such claim, suit, or proceeding covered by this provision.
(a) The Terms of Service and the relationship between You and us shall be governed by the laws of the State of New York, without regard to its conflict of law provisions. You agree that any cause of action that may arise under the Terms of Service shall be commenced and be heard in the appropriate court in the State of New York, New York County. You agree to submit to the personal and exclusive jurisdiction of the courts located within New York County in the State of New York.
(b) Our failure to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. Any waiver of any provision of these Terms of Service by PINATA must be made in writing and signed by an authorized representative of PINATA specifically referencing these Terms of Service and the provision to be waived.
(c) Headings used in these Terms of Service are for convenience only and are not to be relied upon as setting forth a substantive or binding term of this Agreement.
(d) If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
(e) These Terms of Service will inure to the benefit of, and are intended to be enforceable bythe Company’s successors and assigns.
(f) There are no third party beneficiaries to this Agreement; a person who is not a party to this Agreement has no rights (including but not limited to rights under the Contracts (Rights of Third Parties) Act 1999) to rely upon or enforce any term or provision of this Agreement.
(g) No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
21. Confidential Information:
21.1 During the term of this Agreement, You may, from time to time, receive or be given access to confidential information from PINATA related to Your participation. During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining PINATA’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to PINATA’s or any BUSINESS’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, customer and supplier lists, personnel information, financial data, and proprietary information of third parties including Customers) that PINATA and/or any BUSINESS considers to be confidential or proprietary or which PINATA has a duty to treat as confidential.
21.2 Standard of Care. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as You protect your own confidential or proprietary information of a similar nature, and with no less than reasonable care.
21.3 Exceptions. Your obligations under Sections 21.1 and 21.2 will terminate with respect to any particular information that you can prove, by clear and convincing evidence, (a) you lawfully knew prior to the Company’s first disclosure to you, (b) a third party rightfully disclosed to you free of any confidentiality duties or obligations, or (c) is, or through no fault of you has become, generally available to the public. Additionally, you will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by the Company, or is required by law or court order, provided that you immediately notify the Company in writing of such required disclosure and cooperate with the Company, at the Company’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
21.4 Removal; Return. Upon the Company’s request and upon any termination or expiration of this Agreement, you will promptly (a) return to the Company or, if so directed by the Company, destroy all Confidential Information (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information, and (c) certify to the Company in writing that you have fully complied with these obligations.
22. No Conflicts.
You represent and warrant that you are not subject to any contract or duty that would be breached by entering into or performing your obligations under this Agreement, or any PINATA ENGAGEMENT, or that is otherwise inconsistent with this Agreement or any ENGAGEMENT.
23. Electronic Acceptance.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE BEEN GIVEN THE OPPORTUNITY TO OBTAIN INDEPENDENT LEGAL ADVICE WITH RESPECT TO THIS AGREEMENT BEFORE ACCEPTING IT.