Last updated: August 15, 2021
Exhibea (“Exhibea”, “we”, “our” or “us”) owns and operates (a) the Exhibea website and its domains located at www..com (the “Site”), and (b) the Exhibea online software platform (the “Platform”) which provides a marketplace where e-commerce merchants and businesses (“Clients”) and freelancers, agencies and/or other contractors with expertise in the e-commerce industry (hereinafter, “Developers”) can identify each other in connection with a project requested by the Client (each, a “Project”), and engage with one another for the performance of the services provided by such Developer in connection the Project (the “Developer Services”).
When we refer to the “Exhibea Service” throughout this terms of service agreement (hereinafter, this “Agreement”), we mean the Site, Platform, and any related services and/or new features and/or functionality provided by us through or in connection with any of the foregoing.
When we use the terms “you” and/or “your” throughout this Agreement, we mean you, the person reading and agreeing to this Agreement, and when we use the term “Users”, we mean you and all other users of the Exhibea Service. In addition, if you are using the Exhibea as an Developer and/or Client, then when we use those terms throughout this Agreement, as applicable, we mean you.
PLEASE READ THIS AGREEMENT AND ALL OTHER TERMS AND POLICIES REFERENCED HEREIN CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.
NOTICE OF AGREEMENT TO ARBITRATE: THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AS SET FORTH IN, AND SUBJECT TO, SECTION 17.
NOTICE OF WARRANTY & LIABILITY DISCLAIMERS: PLEASE BE ADVISED THAT EXHIBEA DOES NOT PROVIDE ANY WARRANTIES TO YOU AND THESE TERMS LIMIT OUR LIABILITY, AS SPECIFIED IN SECTIONS 7.5, 13, 14, AND 16.
BY CREATING AN ACCOUNT FOR THE EXHIBEA SERVICE, AND/OR USING OR ACCESSING THE EXHIBEA SERVICE (OR ANY PART THEREOF) IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, ACCESSING OR USING THE PLATFORM:
(1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS, CONDITIONS, AND POLICIES SPECIFIED OR REFERENCED BELOW);
(2) IF YOU ARE REGISTERING AN ACCOUNT FOR, AND/OR OTHERWISE ACCESSING OR USING, THE EXHIBEA SERVICE, INCLUDING, WITHOUT LIMITATION, ENGAGING EXPERTS AND/OR RECEIVING EXPERT SERVICES, ON BEHALF OF ANY OTHER PERSON OR ENTITY (E.G., YOUR EMPLOYER, AN AGENCY, OR OTHER PERSON, CORPORATION OR COMPANY), YOU REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH OTHER PERSON OR ENTITY (IN WHICH CASE, “YOU,” “YOUR” AND “USER” AS USED IN THIS AGREEMENT SHALL ALSO REFER TO SUCH OTHER PERSON OR ENTITY);
(3) YOU REPRESENT THAT YOU MEET THE ELIGIBILITY REQUIREMENT SET FORTH IN SECTION 1 BELOW; AND
(4) YOU AGREE THAT YOU ARE ENTERING INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS, CONDITIONS AND POLICIES SPECIFIED OR REFERENCED BELOW) WITH LOREM TECHNOLOGIES, INC., DBA EXHIBEA, A DELAWARE CORPORATION.
IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR YOU DO NOT HAVE THE REQUISITE AUTHORITY OR DO NOT MEET THE ELIGIBILITY REQUIREMENTS, DO NOT CREATE AN ACCOUNT OR ACCESS OR USE THE EXHIBEA SERVICE (OR ANY PART THEREOF).
You must be at least 18 years old or the age of majority in your jurisdiction in order to register for an account to use the Exhibea Service (“Account”) and to otherwise access and use the Exhibea Service. In addition, you acknowledge and agree that Exhibea offers the Exhibea Service for your business purposes only and not for personal, household, or consumer use. By registering an Account, or otherwise accessing and/or using the Exhibea Service, you hereby affirm, represent, and warrant that you: (a) are 18 years old or the applicable age of majority in your jurisdiction, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement; and (b) will use the Exhibea Service for your business purposes only, or if an employee or contractor of a registered User, for the business of such registered User, and (c) are not a citizen or resident of a geographic area in which access to or use of the Exhibea Service is prohibited or otherwise barred by applicable law, rule, decree, regulation, treaty, or administrative act.
2. ADDITIONAL TERMS; MODIFICATIONS TO TERMS
2.1. ADDITIONAL TERMS
The use of certain services or materials available through or for use with the Exhibea Service will be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies, and procedures in addition to those in this Agreement, including, without limitation, the Exhibea’s Privacy Notice, Content and Community Guidelines, and Infringement Policy (collectively, the “Additional Terms”). All such Additional Terms are hereby incorporated by reference into this Agreement. In the event of any conflict with this Agreement and the Additional Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
2.2. MODIFICATIONS TO THIS AGREEMENT
Exhibea reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on the Site located at https://www..com/terms-of-service. All updates and modifications to this Agreement will be effective from the day they are posted on the Site (except as otherwise stated in this Section 2.2). If Exhibea makes any material changes to this Agreement, Exhibea will notify you of these changes by sending a notification to the email address Exhibea has on file for you, or, if Exhibea does not have an email address on file, by posting a notice of the changes on the Site and through the user interface of the Platform. It is your responsibility to regularly visit and review this Agreement. If you do not agree to any updates or modifications to this Agreement, you may terminate this Agreement pursuant to Section 10.1 and cease access and use of the Exhibea Service. Your continued use of the Exhibea Service after Exhibea has posted the updated Agreement, or, in the event of material changes, ten (10) days following the date Exhibea first notified you of such material changes either through email or the date Exhibea posted the notice of such changes on the Site or through the user interface of the Platform, as applicable, signifies your acknowledgment and agreement to be bound by the revised Agreement.
If you provide us any personal information in connection with your access and/or use of the Exhibea Service, Exhibea will process such personal information as described in this Agreement and Exhibea’s Privacy Notice. By using the Exhibea Service, you acknowledge and agree that Exhibea can process your information in accordance with this Agreement and as set forth in the Privacy Notice.
4. ACCESS/USE OF THE EXHIBEA SERVICE
4.1. ACCESS TO THE EXHIBEA SERVICES
Subject to the terms of this Agreement and upon creation of an Account, Exhibea hereby grants you non-exclusive, non-transferable, non-sublicensable, revocable limited right to (a) access and use the Exhibea Service, over the internet, and (b) access and view the Exhibea Content (defined in Section 11.1), made available through the Platform, in each case, solely for your internal business purposes and in accordance with the terms of this Agreement.
4.2. RESTRICTIONS AND PROHIBITED USERS
You agree that you will not, and it will not permit any third party to: (a) modify, adapt, translate or create derivative works based on the Exhibea Content, Exhibea Service (or any part thereof), or any related documentation; (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform; (c) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Exhibea Content, Exhibea Service (or any part thereof), or any related documentation; (d) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Exhibea or its suppliers on or within the Exhibea Content, Exhibea Service and/or related documentation; (e) interfere with or disrupt the integrity or performance of the Exhibea Service (or any part therefor), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Exhibea Service; (f) attempt to gain unauthorized access to the Exhibea Service (or any part thereof), or related systems or networks; (g) frame or utilize framing techniques to enclose the Exhibea Content, Platform, or any portion thereof; (h) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Platform, any Exhibea Content, or the personal information of others without Exhibea’s prior written permission or authorization; (i) use the Exhibea Content and/or Exhibea Service (or any part thereof) to hack, spam, or phish Exhibea or Exhibea’s other users; (j) use the Exhibea Service to store or transmit any malicious or unsolicited code or software, or store, transmit or upload any material and/or content that is false, inaccurate, illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, infringing, libelous, tortious, or otherwise objectionable in Exhibea’s reasonable opinion, or to store, transmit or upload any material or content that violates any third party’s intellectual property rights and/or privacy rights; (k) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent your affiliation with any person or entity; (l) access or use the Exhibea Content and/or Exhibea Service to build a competitive product or service; or (m) violate any applicable local, state, national or international law (including, without limitation, U.S. and foreign export laws concerning the transmission of technical data and other regulated materials) in your use of the Exhibea Content and/or Exhibea Service.
4.3. CONSENT TO ELECTRONIC COMMUNICATIONS
By using the Exhibea Service, you consent to receiving electronic communications or telephonic communications from Exhibea, and from other Users. These communications may include notices about applicable fees and charges, transactional information and other information concerning or related to your use of the Exhibea Service. These electronic communications are part of your relationship with Exhibea, and part of your relationship with other Users under a Project Contract (as defined in Section 7.2 below), and you receive them as part of your access and use of the Exhibea Service. You agree that any notices, agreements, disclosures or other communications that Exhibea and/or other Users send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
4.4. CHANGES AND MODIFICATIONS
Exhibea reserves the rights to either temporarily or permanently modify, suspend or discontinue the Exhibea Service (or any part thereof) with or without notice. You agree that Exhibea will not be liable to you or to any third party for any modification, suspension or discontinuance of the Exhibea Service (or any part thereof).
5. USER RESPONSIBILITIES & OBLIGATIONS
You agree to provide and maintain up to date Account information, including, without limitation, information you provide for your public User profile (“Profile”), that is true, accurate, current, up to date, and complete. In addition, and without limiting the foregoing, you agree that you will not (a) create an Account using a false identity or fictitious name or information, or provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides, and/or (b) create an Account or use the Exhibea Service if you have been previously removed or banned by Exhibea from use of the Exhibea Service, or any part thereof. You acknowledge and agree that you may only register one individual Account at any given time for your use of the Exhibea Service, unless we have expressly approved additional accounts for you in writing, and which shall be in our sole discretion and on a case-by-case basis. Without limiting the foregoing, Exhibea reserves the right to limit the number of Accounts that can be created from any one computer or mobile device and the number of computer or mobile devices that can access an individual Account. You may not sell, lease, or rent out your Account to other individuals. In addition, without limiting any other rights or remedies of Exhibea under this Agreement, Exhibea reserves the right to terminate any or all multiple Accounts controlled by a single individual and/or Accounts that are inactive for an extended period of time, or that are otherwise in violation of this Agreement.
5.2. ACCOUNT SECURITY
You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your log-in verification that we may provide or enable to access the Account and/or log-in credentials for the Account, as applicable. You are solely responsible for any activity originating from the Account, regardless of whether such activity is authorized by you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the log-in verification or login credentials for any Account.
You are responsible for the management and administration of the Account, including, without limitation, inviting or enabling access to your Account to other Users (e.g., enabling access between an Developer and Client with respect to a Project) and/or, with respect to Clients, inviting Client’s employees, contractors, and/or agents, to access and use the Exhibea Service as an authorized user of the Client Account (“Client Users”). In addition, Clients may set certain permissions and access rights to each Client User (“Permissions”). Client acknowledges and agrees that depending on the Permissions granted to a Client User, such Client User may (a) subsequently invite or enable other Client Users with the same access and ability to use the Exhibea Service, who will be deemed Client Users of the Account; and/or (b) have the ability to view Client’s data, content, communications and information that are accessible via the Client’s Account. Client acknowledges and agrees that Client is solely responsible and liable for inviting Client Users and the Permissions granted to Client Users through the Client’s Account. Client agrees that it shall not permit any person other than Client Users to access and use the Exhibea Service and will ensure that its Client Users use the Exhibea Service solely in accordance with this Agreement. Client acknowledges and agrees that Client is solely responsible for the use of the Exhibea Service by Client Users, and any breach of this Agreement by any Client User will be deemed a breach by Client.
5.4. IDENTITY VERIFICATION
When you register for an Account and from time to time thereafter, your Account may be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and/or your ability to represent your business on Exhibea, if it is a separate legal entity. You authorize Exhibea, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
5.5. ACCOUNT SECURITY
You are entirely responsible for safeguarding and maintaining the confidentiality of your email account, Shopify Partner account, and username. You agree not to share your username with any person, and, if you are a legal entity who is not a natural person, to only share your username with a person who is authorized to use your Account. You authorize Exhibea to assume that any person using the Exhibea Service through your Account either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password or login credentials for any Account. You further agree not to use the Account or otherwise access the Exhibea Service using the log-in credentials of another User if (a) you are not authorized to use both or (b) the use would violate this Agreement.
5.6. RECORDS OF COMPLIANCE
Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to Exhibea upon request. Nothing in this subsection requires or will be construed as requiring Exhibea to supervise or monitor a User’s compliance with this Agreement, the other Agreement. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Exhibea Service will not be construed as creating any responsibility on Exhibea’s part to store, backup, retain, or grant access to any information or data for any period.
5.7. COMPLIANCE WITH LAWS
You agree to, and shall, at all times, observe and comply with all governmental statutes, laws, rules, orders, regulations and ordinances affecting your business, your activities under this Agreement, your use of the Exhibea Service, and performance of your obligations under this Agreement, including, without limitation, all labor and employment laws, wage and hour laws, equal pay and nondiscrimination in the workforce. Without limiting the foregoing, Client, and not Exhibea, is solely responsible and assumes all liability for determining whether Developers are independent contractors or employees and engaging them accordingly; Exhibea disclaims any liability for such determination or the related Project.
5.8. COMMUNICATION TOOLS
Clients and Developers agree to only communicate with each other via the email address and phone number Exhibea provides to Developers (the “Exhibea Contact Methods”), unless Exhibea has provided express approval for you to use alternative communication means, which such approval shall be in our sole discretion, on a case-by-case basis. This means that if you are a Client, you will only contact, and communicate with, an Developers using the applicable Exhibea Contact Methods for that Developer, and if you are an Developer, you will only distribute your Exhibea Contact Methods to Clients, and contact and communicate with such Clients using your Exhibea Contact Methods. Without limiting the foregoing, you agree that: (a) you will use Exhibea as the sole manner to communicate with other Users; (b) with respect to Developers, you will not directly or indirectly provide to any other User or another person that you identified or were identified by through the Exhibea Service, any contact information other than your Exhibea Contact Methods; (c) will not attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of Exhibea; and (d) will not ask for, provide, or attempt to identify through public means the contact information of another User. You acknowledge and agree that a violation of any provision of this Section 5.8 is a material breach of the Agreement. Your Account may be permanently suspended if you violate this Section 5.8.
5.9. USER CONTENT
Subject to the licenses you grant us in this Agreement, as between Exhibea and you, you will retain ownership of any messages, photos, video, audio, images, data, information, text and/or any other content or materials that you post, submit, transmit, and/or upload, or otherwise provide us, in connection with the use of the Exhibea Service, including, without limitation, Reviews (defined in Section 5.11 below), and any information, content, and/or materials you provide in connection with a request and/or discussions regarding an engagement for a Project and/or through the Exhibea Contact Methods, but expressly excluding any Work Product (all of the foregoing, collectively, “User Content”). Please be advised that, any User Content posted or submitted to or in connection with public Profiles, chats, forums, message boards, or other communication tools through the Exhibea Services will be considered non-confidential and non-proprietary.
5.10. EXHIBEA’S LICENSE TO USER CONTENT
By providing User Content, you grant Exhibea a worldwide, non-exclusive, royalty-free, fully paid, transferable right and license (including through the use of subcontractors) to copy, reproduce, use, host, store, transfer, publicly display, publicly perform, transmit, reproduce, modify (for the purpose of formatting for display), and distribute your User Content, in whole or in part, in connection with your use of the Exhibea Service, and as reasonably necessary to provide the Exhibea Service to you and other users of the Exhibea Service. Exhibea will not review, share, distribute, or reference any User Content except as provided in this Agreement, the Privacy Notice, or as may be required by law.
You hereby acknowledge and agree that Clients may publish and request Exhibea to publish and publicly display on their behalf on and through the Exhibea Service reviews and/or feedback relating to an Developer who has provided Developer Services to such Client (hereinafter, “Reviews”). Reviews are based solely on unverified data that Clients voluntarily submit to Exhibea, and Exhibea does not monitor, influence, contribute to or censor these opinions and Reviews do not constitute and will not be construed as an introduction, endorsement, or recommendation by Exhibea. If you provide any Reviews, you acknowledge and agree that you will notify Exhibea of any error or inaccurate statement in your Reviews, and that if you do not do so, Exhibea may rely on the accuracy of such information. You agree not to use any Reviews to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User, or use such Reviews in any manner in violation of any applicable laws, rules or regulations.
5.12. RESPONSIBILITY FOR USER CONTENT
You acknowledge and agree that you, and not Exhibea, are solely responsible for any User Content submitted, transmitted and/or contributed by you, including the legality, reliability, accuracy and appropriateness of such User Content. By providing User Content, you represent and warrant that: (a) you own or control all rights in and to User Content, and have the necessary rights to grant the licenses granted to Exhibea in Section 5.10); (b) you have obtained all permissions and/or approvals as may be necessary or required to transmit User Content, or any personally identifiable information therein, in connection with the use of the Exhibea Service; and (c) all User Content does and will comply with this Agreement, including, without limitation, the Content Standards and Community Guidelines.
Exhibea reserves the right (but is under no obligation) to remove User Content, including, without limitation, any Reviews, that, in Exhibea’s sole judgment, violates the Agreement, including, without limitation, the Content Standards and Community Guidelines, or otherwise negatively affects our marketplace, diminishes the integrity of the Exhibea Services or otherwise is inconsistent with the business interests of Exhibea.
6. RELATIONSHIP WITH EXHIBEA
Nothing contained in this Agreement will be deemed or construed, under any circumstance, to create a joint venture, partnership, agency, or employment relationship between Exhibea and any User. Neither party, by virtue of this Agreement, is authorized as an agent, employee or legal representative of the other. You further acknowledge and agree that you are not an agent or representative of Exhibea, you have no authority to enter into any agreements or make any representations or warranties for or on behalf of Exhibea, and you shall not otherwise represent yourself to any other User or any other third party as having any such authority.
7. RELATIONSHIPS & INTERACTIONS BETWEEN USERS
7.1. RELATIONSHIPS BETWEEN USERS
If you decide to engage and/or interact with another User or Users, and/or enter into any Project Contract with another User or Users, such engagement, interactions and/or the Project Contract is directly and solely between you and the other User(s). Users are solely responsible for evaluating and determining the suitability of any Project, Client and/or Developer on their own, and have complete discretion both with regard to whether to enter into a Project Contract with each other and with regard to the terms of any Project Contract. Exhibea does not represent, warrant or guarantee the identity of any of its users and whether any of its Users are trustworthy, or the reliability, capability, or qualifications of any Developer or Client, or the ability or willingness of any Client to make payments to Developers, or the ability or willingness of any Developer or Client to fulfill any other obligations it may have under a Project Contract or otherwise, and Exhibea disclaims any and all liability relating thereto. By accessing and/or using the Exhibea Service and/or entering into any Project Contract, you acknowledge, agree and understand that Exhibea is not a party to the Project Contract and you are solely responsible for: (a) determining the suitability of other Users for a Project Contract (such as any interviews, vetting, background checks, or similar actions); (b) negotiating, agreeing to, and executing any terms or conditions of Project Contracts; (c) performing Developer Services; and/or (d) paying for Developer Services.
7.2. PROJECT CONTRACTS
A) Work Orders. If a Client and Developer decide to enter into an engagement for a Project, Developer will issue to Client, through the Exhibea Service, a work order, detailing the scope, timing, fees, and performance of the Developer Services (each, a “Work Order”). The Work Order shall be accepted and deemed binding between Client and Developer upon Client’s acknowledgement of acceptance of the Work Order either through the user-interface of the Exhibea Service or in writing via the Exhibea Contact Method for the applicable Developer.
B) Changes. If prior to the completion of Developer Services under a Project Contract, either Client or Developer request changes to the Developer Services and/or other terms under the Work Order, such changes must be mutually agreed upon by the Developer and Client in writing before they become effective, and upon such written agreement, the Work Order shall be deemed amended to include the agreed upon changes. If Developer and Client cannot come to an agreement on such changes, the original Work Order shall continue to be effective and control the performance and terms of the Developer Services until the completion thereof.
C) Additional Agreements. In addition to the Work Order, Clients and Developers may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Exhibea’s rights and obligations under this Agreement (the Work Order together with such additional agreements, if any, entered into between Client and Developer with respect to a Project, are collectively referred to as, the “Project Contract”).
7.3. CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Project Contract. If and to the extent that the Users do not articulate any different agreement with regard to confidentiality, then they agree that this Section 7.3 (Confidential Information) applies. “Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Developer or Client; (b) was lawfully received by User without restriction from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information. To the extent a User provides Confidential Information to another User, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, or upon termination of this Agreement with respect to a User, the User that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
7.4. OWNERSHIP OF WORK PRODUCT
Users may agree to any terms they deem appropriate with respect to ownership of Work Product, including those set forth in the Project Contract. If and to the extent that the Users do not articulate any different agreement with regard to Work Product, then they agree that this Section 7.4 (Ownership of Work Product) applies
A) Upon Client’s payment in full of the Developer Fees (as defined in Section 8.1 below) for the applicable Project, and subject to Developer’s rights in and to the Developer IP (defined below), Client shall own all rights, title, and interest in and to the deliverables and related work product specified in the applicable Work Order for the Project (collectively, “Work Product”). Accordingly, upon Client’s payment of the applicable Developer Fees in full, Developer agrees to assign, and hereby assigns, to the Client all right, title and interest in and to all Work Product and all Intellectual Property Rights thereto. If Developer has any moral rights or other proprietary rights to the Work Product (except for Intellectual Property Rights in the Developer IP which is licensed pursuant to Section 7.4(b) below)) that cannot be assigned, Developer unconditionally and irrevocably waives the enforcement of such rights, and Developer hereby unconditionally grants to the Client an unrestricted, perpetual, irrevocable, no-charge, royalty-free, worldwide license to exploit all such rights in and to the Work Product to the full extent as if Client were the owner thereof, including without limitation the right to sublicense these rights to third parties through multiple levels of sublicensees or other licensing arrangements. Developers agree to execute, at its Client’s request and expense, all documents and other instruments necessary or desirable to confirm such assignment for the applicable Client. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.
B) Developers reserves all right, title, and interest in and to Intellectual Property owned or controlled by Developers prior to the effective date of the applicable Work Order for the applicable Client, and/or authored, invented, conceived, reduced to practice or otherwise created by Developers outside of the scope and course of performance under the Work Order (collectively, “Developer IP”). Developers agree to, and hereby grant to its Clients a non-exclusive, perpetual, worldwide, non-transferable, non-sublicenseable, fully paid-up, and royalty-free license to use Developer IP to the extent incorporated into the Work Product created by the Developer for the applicable Client or otherwise required to use or enjoy the intended benefits of the Developer Services by the applicable Client. “Intellectual Property” means any and all intellectual property and tangible embodiments thereof, including, without limitation, any copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, work product, notes, reports, documentation, drawings, computer programs, inventions, discoveries, ideas, creations, works, devices, models, and domain names, together with all of the goodwill associated therewith, and any and all derivative works to any of the foregoing.
7.5. USER DISPUTES
You understand and agree that your interactions and dealings with other Users of the Exhibea Service, including, without limitation, any Project Contracts entered into, are solely between you and such other User, and that any problems or disputes between you and another User with respect to any such interactions, dealings, and/or communications must be resolved solely between you and the applicable User. Exhibea is not responsible for any loss, harm or damage of any sort incurred as a result of any such interactions or dealings, and, except as expressly set forth in Section 8.8, Exhibea has no obligation to become involved in any resulting dispute. YOU, ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU, HEREBY EXPRESSLY RELEASE, DISCHARGE, AND HOLD EXHIBEA AND ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, SUCCESSORS OR ASSIGNEES (THE “RELEASED PARTIES”) HARMLESS FROM, AND WAIVE ANY AND ALL CLAIMS (INCLUDING BUT NOT LIMITED TO CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH), DEMANDS, AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY WAIVE, ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU, CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “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. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Developer Services provided to Client by an Developer and requests for refunds based upon Payment Disputes (as defined in Section 8.8 below). Procedures regarding the handling of certain Payment Disputes between Users are discussed in Section 8.8. This release will not apply to a claim that Exhibea failed to meet our obligations under this Agreement.
8. FEES & PAYMENT TERMS
8.1. PRICING MODELS & EXPERT FEES
A) If you are an Developer, you will determine the applicable pricing model (e.g., fixed-fee, hourly, and/or subscription) for the Developer Services you will provide to a Client in connection with a Project (the “Pricing Model”).
B) The Developer and Client shall determine and agree upon the fees due and payable for the performance of the Developer Services for a Project (the “Developer Fees”), and with respect to: (a) hourly Pricing Models, the billing cycles that Developer will issue invoices to Client for the Developer Fees due (the “Billing Cycle”), and (b) subscription Pricing Models, the term of the subscription period for the performance of the Developer Services (the “Subscription Term”). The Developer Fees, Pricing Model, and, if applicable, the Billing Cycle and/or Subscription Term must be specified in the applicable Work Order issued by Developer to Client for the applicable Project.
C) Unless otherwise expressly agreed by the Developer and Client and set forth in the applicable Work Order, the Subscription Term for a Project shall automatically renew for successive periods equal to the initial Subscription Term, unless either Developer or Client notify the other in writing through the Exhibea Contact Method for the applicable Developer that they no longer wish to renew the subscription term, upon which the Project Contract shall terminate at the end of the then-current Subscription Term.
8.2. PAYMENT OF FEES
If you are a Client, you will pay the applicable Fees to Exhibea as set forth in this Section 8.2:
A) Fixed-Fee Projects: The entire amount of the Developer Fees will be due and payable by the Client to Exhibea in advance upon submission of the Work Order (including, without limitation, any additional fees due pursuant to a change or amendment to a Work Order as set forth in Section 7.2(b) above).
B) Hourly Projects: The Developer Fees will be due and payable by Client to Exhibea within three (3) business days following the Client’s receipt of Developer’s invoice for the applicable Developer Fees.
C) Subscription Projects: The entire amount of the Developer Fees due during the Subscription Term, and each renewal thereof, shall be due and payable by Client to Exhibea in advance.
8.3. DISBURSEMENT OF EXPERT FEES
A) Subject to Exhibea’s receipt of the Developer Fees, Exhibea will pay out the Net Developer Fees (minus the Service Fees as described and in accordance with Section 8.4 below) to the Developer’s Exhibea wallet and made available for withdrawal by the Developer within three (3) business days following Customer Approval (defined below) of the applicable Developer Services by the Client. “Net Developer Fees” means the Developer Fees actually received by Exhibea from the Client for Project and/or Developer Services under the applicable Project Contract, excluding (i) any credit card processing, bank transfer fees, and/or other payment processing fees incurred by Exhibea in connection with the collection of the Developer Fees on behalf of, and/or payment of fees due to, Developer under this Agreement, (ii) any taxes and/or other amounts Exhibea is required to withhold pursuant to applicable laws as set forth in this Agreement, and/or (iii) any refunds, chargebacks, and/or reimbursements of Developer Fees paid to you that were issued by Exhibea to Clients.
B) “Customer Approval” shall have occurred upon the earlier of: (i) the Client’s acknowledgement of “approval” of the completion of the applicable Project and/or Developer Services (as applicable) either through the user-interface of the Exhibea Service (e.g., checking “approved” for the Project and/or Developer Services) or in writing via the Exhibea Contact Method after the applicable Completion Date, or (ii) three (3) business days following the Completion Date, unless, prior to the end of such three (3) day period, Client has provided written notice to the Developer through the Exhibea Contact Method of a Payment Dispute in accordance with the provisions of Section 8.8 below. “Completion Date” shall mean, as applicable: (a) the date the Developer has completed the performance of the Developer Services and/or Project as indicated by the Developer marking the Developer Services and/or Project as “complete” through the user-interface of the Exhibea Service with respect to Projects provided under a fixed-fee Pricing Model; (b) the date the Developer issues an invoice for Developer Fees with respect to Projects provided under an hourly Pricing Model; and (c) the end of the then-current Subscription Term with respect to Projects provided under a subscription Pricing Model.
C) If a Payment Dispute is initiated with respect to a Project, Developers acknowledge and agree that the Developer Fees will not be disbursed or available to Developer until Developer and the applicable Client have resolved the Payment Dispute in accordance with Section 8.8 below.
D) Developer agrees that they will not receive interest or other earnings on the Developer Fees held by Exhibea prior to the disbursements to Developer. Developer agrees to withdraw funds regularly in order to prevent excessive use of the Third Party Payment Processing Services (defined in Section8.7 below). You represent and warrant that the bank account you link and/or provide for the disbursement of your Developer Fees is controlled by you and under your name, or if you are working on behalf of your agency and/or employer, is controlled by, and under the name of, your agency and/or employer. In addition, if you are an Developer using the Exhibea Service on behalf of your agency and/or employer and/or another person or entity, you and such agency, employer, and/or other person or entity shall be solely responsible for determining the allocation, distribution and/or payment of any Developer Fees disbursed by us to you under this Agreement.
E) Notwithstanding any other provision of this Agreement, Exhibea in its sole discretion and except as prohibited by applicable law, may refuse to process, may hold the disbursement of the Developer Fees or any other amounts and offset amounts owed to us, in our sole discretion if: (i) we require additional information, such as Developer’s tax information, government-issued identification or other proof of identity, address, or date of birth; (ii) we have reason to believe the Developer Fees may be subject to dispute or chargeback; (iii) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Exhibea Service; (iv) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Agreement; or (v) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the disbursement of the Developer Fees is no longer necessary, Exhibea will release such hold as soon as practicable.
F) In addition, notwithstanding any other provision of the Agreement and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are an Developer, despite our provision of the Exhibea Service in accordance with this Agreement. You agree that we have the right to obtain such reimbursement and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Exhibea Service and close your Account.
8.4. EXHIBEA SERVICE FEE
Exhibea collects a service fee for each Project hereunder (the “Service Fee”) which shall be deducted from the Net Developer Fees paid by Client to Exhibea and disbursed by Exhibea to Developers. The Service Fee shall be the applicable percentage rate based on the Developer’s then-current “tier level” in effect at the time the Work Order is agreed to by Developer and the Client for the applicable Project. For the avoidance of doubt, the Service Fees are not paid in addition to the Net Developer Fees, but are automatically deducted from the Net Developer Fees prior to Exhibea’s disbursement of the Net Developer Fees to the Developer. Exhibea may change its Service Fee, Developer tier levels, and/or reserves the right to implement additional fees and/or charges for use of the Exhibea Service by Clients and/or Developers, at any time, upon ten (10) days prior notice. For the avoidance of doubt, any Developer Fees paid prior to the applicable effective date of such change, shall be subject to the Service Fees in effect prior to such change. For more information regarding its Service Fee, current pricing and Developer tier levels, please see our FAQs
8.5. TAXES - GENERALLY
The Service Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction, and you are and shall be responsible for payment of all such taxes (other than taxes based on Exhibea’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Exhibea Service, or performance of any services by Exhibea hereunder.
8.6. EXPERT TAXES, INVOICES, AND BENEFITS
Exhibea may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (while some countries may refer to VAT using other terms, e.g., GST, we’ll just refer to VAT, GST and any local sales taxes collectively as “VAT”) in the jurisdiction of the Developer (the "Taxes"). In such instances, any amounts Exhibea is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Exhibea under this Agreement. Without limiting the foregoing, Developer acknowledges and agrees that Developer is solely responsible (a) for all tax liability associated with payments received from Developer’s Clients and through Exhibea, and that Exhibea will not withhold any taxes from payments to Developer; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law (collectively, “Benefits and Insurance”), and that neither Developer nor any of its employees, contractors, representatives and/or agents are covered by or eligible for any such Benefits and Insurance from Exhibea; (c) for determining whether Developer is required by applicable law to issue any particular invoices for the Developer Fees and for issuing any invoices so required; (d) for determining whether Developer is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Developer Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if Exhibea is required by applicable law to withhold any amount of the Developer Fees and for notifying Exhibea of any such requirement and indemnifying Exhibea for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Exhibea, Developer agrees to promptly cooperate with Exhibea and provide copies of Developer’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Developer is engaging in an independent business as represented to Exhibea.
8.7. PAYMENT PROCESSING AND PAYMENT METHODS
A) Exhibea uses third party payment processors (“Third Party Payment Processors”), such as Stripe, Payment Rails and PayPal, to provide payment processing and disbursement services to Users to deliver, hold, or receive the Developer Fees for a Project, and to pay the Service Fee to Exhibea (“Third Party Payment Processing Services”). The Third Party Payment Processing Services are intended for business use, so you agree to use the Third Party Payment Processing Services only for business purposes and not for consumer, personal, family, or household purposes. User acknowledges and agrees that Exhibea shall not, under any circumstance, be responsible for errors or delays by the Third Party Payment Processors. You hereby authorize and instruct Third Party Payment Processors to act as Exhibea’s payment processing agents in connection with the payment, holding, and receipt of funds for each Project and other specified purposes (the “Payment Processing”) in accordance with this Agreement and the applicable Project Contract.
B) Developer acknowledges and agrees, and hereby authorizes Exhibea and/or its Third Party Payment Processor to deduct the Service Fee and any other fees, charges, VAT, taxes and/or other payments due and payable by Developer hereunder from the Developer Fees due to the Developer under this Agreement.
C) Client hereby authorizes Exhibea and its Third Party Payment Processors, as applicable, to run credit card authorizations on all Client credit cards or PayPal accounts or other financial details as Client’s method of payment (“Payment Method”), and to charge Client’s Payment Method for the Developer Fees and any other amounts owed under this Agreement.
D) By providing Payment Method information through or in connection with the Exhibea Service and authorizing payments with the Payment Method as set forth above, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to make payments using the Payment Method(s); (c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on Exhibea; (d) there are sufficient funds or credit available to complete the payment using the designated Payment Method; and (e) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law. To the extent that any amounts owed under this Agreement cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
8.8. PAYMENT DISPUTES
A) Clients may, in good faith, dispute the Developer Fees or the completion of any Project (each, a “Payment Dispute”), by providing the Developer written notice within three (3) business days following the Completion Date via the Exhibea Contact Method of such dispute and reasonably detailing the reasons therefor (the “Dispute Notice”). Upon receipt of a Dispute Notice, the Developer and Client will work together directly in good faith to seek a resolution to the Payment Dispute. In the event a Dispute is not resolved within thirty (30) days after receipt of the Dispute Notice, the Developer and/or Client may escalate the Payment Dispute for resolution by Exhibea via email at support@.com. Exhibea will determine the resolution of the Payment Dispute in good faith based on the claim submission made by the Client and Developer involved in the Payment Dispute, and will use commercially reasonable efforts to issue its final determination within forty-five (45) business day after the Payment Dispute was escalated to Exhibea. EXHIBEA’S DETERMINATION IS BINDING AND MAY NOT BE APPEALED. YOU MUST COMPLY WITH THE DETERMINATION, AND YOU AND THE APPLICABLE USER ARE RESPONSIBLE FOR ENFORCING SUCH DETERMINATION. EXHIBEA MAY IMMEDIATELY AND WITHOUT NOTICE SUSPEND OR DISCONTINUE ACCESS TO THE EXHIBEA SERVICE WHERE THE PARTIES DO NOT COMPLY WITH THE DETERMINATION.
B) In the event either or both you and the applicable User do not escalate a Payment Dispute, Exhibea does not agree to resolve the Payment Dispute, or the parties fail to enforce the resolution set forth in Section 8.8(a) above, then you are responsible for taking such legal action as you consider appropriate against the applicable User to resolve that dispute without reference to Exhibea.
C) THIS SECTION 8.8 STATES EXHIBEA’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY TO USERS, AND USERS SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY PAYMENT DISPUTES.
8.9. NON-PAYMENT OF FEES
If Exhibea determines Client is in default or breach of its payment obligations hereunder, including, without limitation, instituting a chargeback as set forth in Section 8.10 below, we may, without notice, and without limitation to any other remedies we may have, temporarily or permanently close Client’s Account and revoke Client’s access to the Exhibea Service , including Client’s authority to use the Exhibea Service to process any additional payments, enter into Project Contracts, or obtain any additional Developer Services from other Users through the Exhibea Service. However, Client will remain responsible for any amounts that accrue on any open Projects at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Exhibea upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
8.10. NO REFUNDS AND NO CHARGEBACKS
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, ALL FEES PAYABLE UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE EXPERT FEES AND SERVICE FEE) ARE NON-REFUNDABLE, NON-RETURNABLE AND NON-CANCELLABLE. Client acknowledges and agrees that Exhibea, will charge or debit Client’s designated Payment Method for the Developer Fees incurred as described in this Agreement, and that once Exhibea charges or debits the Client’s designated Payment Method for the Developer Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that this Agreement provides a dispute resolution process as a way for Client resolve disputes with respect to payment of fees. To the extent permitted by applicable law, Client therefore agrees not to ask or institute with its credit card company, bank, or other Payment Method provider to charge back any Developer Fees or other fees charged pursuant to this Agreement for any reason. A chargeback in breach of the foregoing obligation is a material breach of this Agreement. If Client initiates a chargeback in violation of this Agreement, Client shall be in default of its payment obligations, and agrees that Exhibea may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.
8.11. CURRENCY – U.S. DOLLARS
The Exhibea Service operates in U.S. Dollars. If Client’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the charge will be processed in U.S. Dollars with the foreign currency conversion rate selected by Client’s Payment Method provider. Client’s Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency conversion is involved. Exhibea is not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars.
A) You acknowledge and agree that a substantial portion of the compensation Exhibea receives for making Exhibea Service available to you is collected through the Service Fee described in Section 8.4 and that in exchange a substantial value to you is the relationships you make with other Users when you identify or are identified by another person through the Exhibea Service. Exhibea only receives the Service Fee when a Client and an Developer pay and receive payment through the Exhibea Service. Therefore, for the period commencing on the date you accept this Agreement and/or otherwise use the Exhibea Service and continuing for 24 months from the date you terminate your Account (the “Non-Circumvention Period”), you agree to use the Exhibea Service as your exclusive method to request, make, and receive all payments for work directly or indirectly with that person or arising out of your relationship with that person and not to circumvent the Payment Methods offered on or through the Exhibea Service unless you pay to Exhibea a conversion fee of $10,000.00 to take the relationship off of the Exhibea Service (the “Conversion Fee”). You acknowledge and agree that a violation of any provision in this Section 9.1 is a material breach of the Agreement.
B) By way of illustration and not in limitation of the foregoing, you agree not to: (i) offer or solicit or accept any offer or solicitation from parties identified through the Exhibea Service to contract, hire, invoice, pay, or receive payment in any manner other than through the Exhibea Service; (ii) invoice or report on the Exhibea Service or in a Conversion Fee request an invoice or payment amount lower than that actually agreed, made, or received between Users; and/or (iii) refer a User you identified on or through the Exhibea Service to a third-party who is not a User of the Exhibea Service for purposes of making or receiving payments other than through the Exhibea Service.
C) If you use the Exhibea Service as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User.
For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another person through the Exhibea Service, such as if you and another User worked together before meeting through the Exhibea Service, then the Non-Circumvention Period does not apply. If you use the Exhibea Service as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User. In addition, 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 providing any services through any other channels they choose, provided, if applicable, Users comply with the provisions described in this Section 9. Users are free at all times to engage in such other business activities and services and are encouraged to do so, subject to compliance with this Section 9 and the terms of this Agreement.
You agree to notify Exhibea immediately if a person suggests to you making or receiving payments other than through the Exhibea Service in violation of this Section 9 or if you receive unsolicited contact outside of the Exhibea Service. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to admin@.com. In addition, you understand and agree that if Exhibea determines, in its sole discretion, that you have violated Section 9, Exhibea may, to the maximum extent permitted by law (a) charge your Payment Method the Conversion Fee (including interest) if permitted by law or send you an invoice for the Conversion Fee (including interest), which you agree to pay within 30 days, (b) close your Account and revoke your authorization to use the Exhibea Service, and/or (c) charge you for all losses and costs (including any and all time of Exhibea’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
10. TERM AND TERMINATION
10.1. TERM; TERMINATION
This Agreement will remain in effect for the duration of your use of the Exhibea Service. Unless both you and Exhibea expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other. Your written notice of termination must be sent to admin@.com.
10.2. EFFECT OF YOUR TERMINATION OF THIS AGREEMENT
In the event you properly terminate this Agreement, your right to use the Exhibea Service is automatically revoked, and your Account will be closed; however, (a) if you have any open Projects when you terminate this Agreement, you will continue to be bound by this Agreement until all such Projects have closed on the Exhibea Service; (b) Exhibea will continue to perform those Services necessary to complete any open Project or related transaction between you and another User; and (c) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Projects, whichever is later, to Exhibea for any Services and to any Developers for any Developer Services. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you, any User with whom you have entered into a Project Contract, or Exhibea from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of this Agreement necessary to implement the foregoing survive termination of this Agreement for any reason.
10.3. EXHIBEA’S TERMINATION AND/OR SUSPENSION
Without limiting Exhibea’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit access to the Exhibea Service, deny your registration, or permanently revoke your access to the Exhibea Service and refuse to provide any or all Exhibea Service to you if: (a) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of this Agreement; (b) we suspect or become aware that you have provided false or misleading information to us; (c) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Exhibea or our Affiliates; may be contrary to the interests of the Exhibea Service or the User community; or may involve illicit or illegal activity; or (d) we are required to by law, legal process, or law enforcement. If your Account is temporarily or permanently closed, you may not use the Exhibea Service under the same Account or a different Account or re-register under a new Account without Exhibea’s prior written consent. If you attempt to use the Exhibea Service under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law. IF WE TERMINATE AND/OR SUSPEND YOUR ACCOUNT AND/OR THIS AGREEMENT WITH RESPECT TO YOU PURSUANT TO THIS SECTION 10.3, IN ADDITION TO ANY OTHER REMEDIES WE MAY HAVE HEREUNDER OR EQUITY OR BY LAW, WE MAY TRANSFER YOUR PROJECTS TO ANOTHER EXPERT, AND YOU AGREE THAT EXHIBEA WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO OUR TRANSFER OF PROJECTS TO SUCH OTHER EXPERTS.
10.4. CLOSURE OF YOUR ACCOUNTS
You acknowledge and agree that the value, reputation, and goodwill of the Exhibea Service depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Project Contracts with you. You therefore agree as follows: IF EXHIBEA DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, EXHIBEA HAS THE RIGHT, WHERE ALLOWED BY LAW, BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO PROJECT CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT EXHIBEA WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
10.5. ACCOUNT DATA ON CLOSURE
Except as otherwise required by law or this Agreement, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep within the Exhibea Service and any closure of your Account may involve deletion of any content stored in your Account for which Exhibea will have no liability whatsoever. Exhibea, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you or Exhibea from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
11.1. EXHIBEA PROPRIETARY RIGHTS
Exhibea and/or its licensors shall retain all rights, title, interest, in and to and ownership of (a) any and all text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through or in connection with the Exhibea Service, including, without limitation, but excluding your User Content (all of the foregoing, collectively, the “Exhibea Content”), (b) the Exhibea Service, and (c) any improvements, updates, modifications and/or enhancement to the Exhibea Service and/or Exhibea Content. All Exhibea trademarks are strictly owned by Exhibea, and nothing in this Agreement will be construed to transfer ownership rights or grant any permission, license or other rights to any Exhibea trademark without written authorization from Exhibea. The trademarks, service marks, logos, and/or names of individuals, companies and/or products mentioned through the Exhibea Service or within any Exhibea Content may be the trademarks of their respective owners. All rights that are not explicitly granted in this Agreement are reserved by Exhibea and its licensors, and no implied license is granted by Exhibea. The Exhibea Service (and its underlying technology) and Exhibea Content, are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries.
To the extent that you provide or submit to Exhibea any ideas, suggestions, improvements and/or other feedback regarding any aspect of the Exhibea Service and/or Exhibea Content including, without limitation, the functioning, features, and other characteristics thereof (collectively, “Feedback”), you hereby grant Exhibea, its subsidiaries, affiliates and partners a worldwide, irrevocable, perpetual, royalty free, non-exclusive, sublicensable and transferable license under all your intellectual property rights in the Feedback to exploit and use for any purpose, without compensation or attribution.
13. WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE EXHIBEA SERVICE, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE EXHIBEA SERVICE. THE EXHIBEA SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXHIBEA MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE EXHIBEA SERVICE, USER CONTENT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXHIBEA DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
EXHIBEA AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT THE EXHIBEA SERVICE (OR ANY PART THEREOF), EXHIBEA CONTENT, OR ANY OTHER MATERIALS, CONTENT OR SERVICES PROVIDED OR MADE AVAILABLE BY EXHIBEA THROUGH OR IN CONNECTION WITH THE EXHIBEA SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE COMPATIBLE WITH YOUR NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY INTEGRATIONS; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE, TRUTHFUL, COMPLETE OR RELIABLE.
EXHIBEA DOES NOT MAKE ANY REPRESENTATIONS ABOUT OR GUARANTEE THE TRUTH OR ACCURACY OF ANY EXPERT’S OR CLIENT’S LISTINGS OR OTHER USER CONTENT ON THE EXHIBEA SERVICE; DOES NOT VERIFY ANY FEEDBACK OR INFORMATION PROVIDED BY USERS ABOUT EXPERTS OR CLIENTS; AND DOES NOT PERFORM BACKGROUND CHECKS ON OR GUARANTEE THE WORK OF EXPERTS OR CLIENTS.
EXHIBEA MAKES NO WARRANTY AS TO THE IDENTITY, CHARACTER, TRUSTWORTHINESS OR CONDUCT OF THE USERS OF THE EXHIBEA SERVICE AND EXHIBEA MAKES NO REPRESENTATIONS ABOUT AND DOES NOT GUARANTEE, AND YOU AGREE NOT TO HOLD EXHIBEA RESPONSIBLE FOR, THE QUALITY, SAFETY, OR LEGALITY OF EXPERT SERVICES; THE QUALIFICATIONS, BACKGROUND, OR IDENTITIES OF USERS; THE ABILITY OF EXPERTS TO DELIVER EXPERT SERVICES; THE ABILITY OF CLIENTS TO PAY FOR EXPERT SERVICES; USER CONTENT AND STATEMENTS OR POSTS MADE BY USERS; OR THE ABILITY OR WILLINGNESS OF A CLIENT OR EXPERT TO ACTUALLY COMPLETE A TRANSACTION, AND EXHIBEA ASSUMES NO RESPONSIBILITY FOR ANY USER’S COMPLIANCE WITH ANY APPLICABLE LAWS, RULES AND REGULATIONS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE EXHIBEA SERVICE, AND ANY INTERACTIONS AND/OR TRANSACTIONS WITH OTHER USES AND ALL RESULTS OF SUCH USE IS SOLELY AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EXHIBEA, ANY THIRD PARTY, OR THROUGH THE EXHIBEA SERVICE, SHALL CREATE ANY WARRANTY.
SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 10 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST EXHIBEA WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
14. LIMITATION OF LIABILITY
Exhibea is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to:
- your use of or your inability to use the Exhibea Service;
- delays or disruptions in or to the Exhibea Service;
- viruses or other malicious software obtained by accessing, or linking to, the Exhibea Service;
- glitches, bugs, errors, or inaccuracies of any kind in the Exhibea Service;
- damage to your hardware device from the use of the Exhibea Service;
- the content, actions, or inactions of third parties’ use of the Exhibea Service;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of project postings, Profiles, ratings, recommendations, and reviews (including their content, order, and display), or metrics found on, used on, or made available through the Exhibea Service; and
- • your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this Agreement.
ADDITIONALLY, IN NO EVENT WILL EXHIBEA, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF EXHIBEA, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY EXHIBEA WITH RESPECT TO PROJECT CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR EXPERT DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EXTRACONTRACTUAL LIABILITY, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You will indemnify, defend, and hold harmless Exhibea, our affiliates, and our respective directors, officers, employees, representatives, and agents (each a “Exhibea Indemnified Party”) from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands or damages of any kind, arising out of or related to relating to or arising out of: (a) the use of the Exhibea Service by you or your agents, including any payment obligations or default (described in Section 8.9 (Non-Payment)) incurred through use of the Exhibea Service; (b) any User Content developed, provided, or otherwise related to your use of the Exhibea Service; (c) any Project Contract entered into by you or your agents; (d) any claims arising from or related to the classification of an Developer and/or any of your employees, contractors and/or agents, as an independent contractor; the classification of Exhibea as an employer or joint employer of Developer or Client or any other User; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (e) failure to comply with this Agreement by you or your agents; (f) your or your agents use of any Third Party Products and/or Sites (defined in Section 16 below); (g) failure to comply with applicable laws, rules or regulations, including, without limitation, any privacy and data protection laws, by you or your agents; (h) negligence, willful misconduct, or fraud by you or your agents; and (i) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 15, your “agents” include your employees, contractors, subcontractors, and/or representatives and/or any person who has apparent authority to access or use your Account.
16. THIRD PARTY PRODUCTS AND/OR SITES
The Site and/or Exhibea Service may identify certain third party products, goods and/or services and/or may contain links to the third party websites for such third party services, products, applications, and/or goods (all of the foregoing, “Third Party Products and/or Sites”). Exhibea may receive payment or a commission if you make a purchase to use such Third Party Products and/or Sites; however, Third Party Products and/or Sites are not controlled or owned by Exhibea. If you decide to use such Third Party Products and/or Sites, be advised that your use is governed solely by the terms and conditions of such Third Party Products and/or Sites, and Exhibea does not endorse, is not responsible for, and makes no representations as to such Third Party Products and/or Sites, their content, or the manner in which they handle your data. EXHIBEA IS NOT LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR ACCESS OR USE OF ANY SUCH THIRD PARTY PRODUCTS AND/OR SITES, OR YOUR RELIANCE ON THE PRIVACY PRACTICES OR OTHER POLICIES OF SUCH THIRD PARTY PRODUCTS AND/OR SITES. EXHIBEA DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS AND/OR SITES ADVERTISED, OFFERED AND/OR LINKED THROUGH, OR IN CONNECTION WITH, THE SITE AND/OR EXHIBEA SERVICE, AND EXHIBEA WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS AND/OR SITES.
17. INFRINGEMENT POLICY
If you believe that the Exhibea Service (or any part thereof) and/or any content or materials made available through the Exhibea Service violates your copyright and/or trademark rights, please see Exhibea’s Infringement Policy for instructions on sending us a notice of copyright and/or trademark infringement.
18. GOVERNING LAW & DISPUTE RESOLUTION
18.1. GOVERNING LAW
These Terms shall be governed in all respects by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement, including, without limitation, application to the Platform. Furthermore, this Agreement (including without limitation, the Platform) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
Except as otherwise set forth in this Agreement, you agree that any dispute between you and Exhibea arising out of or relating to this Agreement the Exhibea Service (or any part thereof) (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
18.3. INFORMAL RESOLUTION
Before resorting to formal dispute resolution in accordance with this Section, you agree to first contact Exhibea directly at support@.com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, you or Exhibea may institute arbitration in accordance with the procedures set forth in this Section.
18.4. AGREEMENT TO ARBITRATE
Any Disputes that cannot be resolved through informal resolution in accordance with Section 18.3 above shall be resolved exclusively through final, binding and confidential arbitration, which shall be subject to the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its rules of arbitration in effect at the time the Dispute is submitted for arbitration (collectively, “AAA Rules”) as modified by this Section 18.4. You and we agree that the following rules will apply to the proceedings: (a) the arbitration will be heard and determined by a single, neutral arbitrator selected in accordance with the AAA Rules; (b) the arbitration will take place in the county where you live or at another mutually agreed location; (c) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (d) the arbitration must not involve any personal appearance by the parties or witnesses (unless we and you agree otherwise), and provided that, Disputes that involve a claim of more than $10,000 USD must be resolved per the AAA’s rules about whether the arbitration hearing has to be in-person; and (e) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. A party electing arbitration must initiate proceedings by filing an arbitration demand with the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. THE AGREEMENT TO ARBITRATE AND THIS ARBITRATION PROVISION IS GOVERNED BY THE FEDERAL ARBITRATION ACT.
18.5. NOTICE OF ARBITRATION; INSTITUTING PROCEEDINGS
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). Exhibea’s address for Notice is: Lorem Technologies, Inc. dba Exhibea, Attention: Notice of Arbitration, 228 Park Ave. S, #43923, New York, New York 10003. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A party electing arbitration must initiate proceedings by filing an arbitration demand with the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Exhibea.
18.6. COSTS AND FEES
If you commence arbitration in accordance with this Agreement, Exhibea will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 USD, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Exhibea for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
18.7. OPTING-OUT OF ARBITRATION
If you do not wish to resolve disputes by binding arbitration, you may opt out of the agreement to arbitrate within 30 days after the date that you agree to this Agreement by sending a letter to Lorem Technologies, Inc. dba Exhibea, Attention: Arbitration Opt-Out, 228 Park Ave. S, #43923, New York, New York 10003, that specifies: your full legal name, the email address used to register an Account (if applicable), and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Exhibea receives your Opt-Out Notice, the agreement to arbitrate will be void and the parties agree that the exclusive jurisdiction and venue described in Section 18.10 will govern any action arising out of or related to this Agreement. The remaining provisions of this Section 18 will not be affected by your Opt-Out Notice.
18.8. EXCEPTION TO ARBITRATION.
Notwithstanding anything in this Agreement to the contrary, to the extent you have in any manner violated or threatened to violate any of Exhibea’s intellectual property rights, Exhibea may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of New York, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts. In addition, despite the Agreement to Arbitrate, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (c) seek injunctive relief in a court of law in aid of arbitration.
18.9. NO CLASS ACTIONS
YOU MAY ONLY RESOLVE DISPUTES WITH EXHIBEA ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER THIS AGREEMENT.
If the agreement to arbitrate is found not to apply to your or Exhibea’s claim, you and Exhibea agree that any judicial proceeding will be brought in the federal or state courts located in Manhattan, New York. Both you and Exhibea consent to venue and personal jurisdiction there.
18.11. TIME LIMITATION TO BRING CLAIMS
Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Exhibea Service must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
All notices to Exhibea intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Attn: Exhibea Legal, 228 Park Ave. S, #43923, New York, New York 10003; or (c) in writing via email to admin@.com. All such notices are deemed effective upon receipt by Exhibea. Exhibea does not accept service of any legal process by email or mail; all such service should occur by hand delivery on Exhibea or its registered agent for service of process.
19.2. ENTIRE AGREEMENT
This Agreement, together with the Privacy Notice, Content and Community Guidelines, Infringement Policy, and Additional Terms, sets forth the entire agreement and understanding between you and Exhibea relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in this Agreement are included for ease of reference only and have no binding effect. Even though Exhibea drafted this Agreement, you represent that you had ample time to review and decide whether to agree to this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof will arise favoring or disfavoring you or Exhibea because of the authorship of any provision of this Agreement.
19.3. MODIFICATIONS; WAIVER
No modification or amendment to this Agreement will be binding upon Exhibea unless they are agreed in a written instrument signed by a duly authorized representative of Exhibea or posted on the Exhibea Service by Exhibea. Email will not constitute a written instrument as contemplated by this Section 18.3. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
User may not assign this Agreement, or any of its rights or obligations hereunder, without Exhibea’s prior written consent in the form of a written instrument signed by a duly authorized representative of Exhibea. Exhibea may freely assign this Agreement without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
19.5. LANGUAGE; SEVERABILITY; INTERPRETATION
The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
19.6. THIRD PARTY BENEFICIARIES
This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties and any person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Agreement.
19.7. FORCE MAJEURE
Neither party shall be responsible for any delay in its performance due to labor disputes, shortage of materials, fire, earthquake, flood, telecommunications failure, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, or any other cause beyond its reasonable control, except Client payments that are due pursuant to the terms of this Agreement.
19.8. AVAILABILITY OF THE SERVICES
The Exhibea Service is controlled and operated from our facilities in the United States. In addition, information describing the Exhibea Service is accessible worldwide but this does not mean the Exhibea Service, or certain portions thereof, is available in your country. Those who access or use the Exhibea Service from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software, and that you are not an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. Exhibea may restrict access to the Exhibea Service, or portions thereof, in certain countries in its sole discretion. It is your responsibility to make sure your use of the Exhibea Service is legal in your country of residence. The Exhibea Service may not be available or accessible in all languages.
QUESTIONS AND ADDITIONAL INFORMATION. Please feel free to contact Exhibea at admin@.com if you have any questions about this Agreement.