Terms & Conditions
End User Agreement
These terms and conditions (“Terms”, “Agreement”) are an agreement between Neoark Software Private Limited (“Neoarks”, “us”, “we” or “our”) and you (“User”, “Client”, “you” or “your”). You must read, understand, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our mobile application. This Agreement sets forth the general terms and conditions of your use of the Go With Experts mobile application and any of its services (collectively, “Mobile Application” or “Services”).
Every person who creates an account on the mobile application is a User. When a user posts an opportunity, other users submit proposals to the respective opportunity. The opportunity posting User is considered a Client and the proposal submitting users are considered as Professionals.
Subject to the conditions set forth in this agreement, Neoarks may, in its sole discretion, change, modify, update or amend this Agreement and the other Terms of Service at any time by posting a revised version on the mobile application. Neoarks will provide a reasonable advance notice of any amendment, by posting the updated Terms of Service on the mobile application, providing notice on the mobile application, and/or sending you notice by email. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
1.1 Accounts and membership
You must be at least 18 years of age to use this Mobile Application. By using this Mobile Application and by agreeing to this Agreement you warrant and represent that you are at least 18 years of age. If you create an account in the Mobile Application, you are responsible for maintaining the security of your account and you are fully responsible for all activities that occur under the account and any other actions taken in connection with it.
We may, but have no obligation to, monitor and review new accounts before you may sign in and use our Services. Providing false contact information of any kind may result in the termination of your account. You must immediately notify us of any unauthorized uses of your account or any other breaches of security. We will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
We may suspend, disable, or delete your account (or any part thereof) if we determine that you have violated any provision of this Agreement or that your conduct or content would tend to damage our reputation and goodwill. If we delete your account for the foregoing reasons, you may not re-register for our Services. We may block your email address and Internet protocol address to prevent further registration.
1.2 Account Policy
You acknowledge, understand and agree that you shall comply with the following policies
· You must and will not copy or distribute any part of the mobile application in any way without Neoarks’s prior written authorization.
· You must and will not alter/change/modify any part of the mobile application other than as may be reasonably necessary to use the mobile application for its intended purpose.
· You must and will provide true, accurate, current and complete information when creating your Account and you shall maintain and update such information during the term of this Agreement so that it will remain accurate, true, current and complete.
· You shall not use any automated system, including but not limited to, “robots,” “spiders,” “offline readers,” “scrapers,” etc., to access the mobile application for any purpose without Neoarks’s prior written approval.
· You shall not in any manual or automated manner collect Professionals or Users information, including but not limited to, names, addresses, phone numbers, or email addresses, copying copyrighted text, or otherwise misuse or misappropriate mobile application information or content, including but not limited to, use on a “copied”, competitive, or third party Application.
· You shall not recruit, solicit, or contact in any form Professionals or Users for employment or contracting for a business not affiliated with Neoarks without express written permission from Neoarks.
· You shall not take any action that (i) unreasonably encumbers or, in Neoarks’s sole discretion, may unreasonably encumber the Application’s infrastructure; (ii) interferes or attempts to interfere with the proper working of the Application or any third-party participation in the Application; or (iii) bypasses Neoarks’s measures that are used to prevent or restrict access to the Application.
· You agree not to collect or harvest any personally identifiable data, including without limitation, names or other Account information, from the Application, nor to use the communication systems provided by the Application for any commercial solicitation purposes.
1.3 KYC & Location Verification
When you register for an Account and from time to time thereafter, your Account will be subject to KYC (Know your Customer) Details Update, including, but not limited to, the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of yourself on Neoarks. You authorize Neoarks, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself which includes, but is not limited to, providing official government or legal documents.
2. User content
We do not own any data, information or material (“Content”) that you submit in the Mobile Application in the course of using the Service. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all submitted Content. We may, but have no obligation to, monitor and review Content in the Mobile Application submitted or created using our Services by you. Unless specifically permitted by you, your use of the Mobile Application does not grant us the license to use, reproduce, adapt, modify, publish or distribute the Content created by you or stored in your user account for commercial, marketing or any similar purpose. But you grant us permission to access, copy, distribute, store, transmit, reformat, display and perform the Content of your user account solely as required for the purpose of providing the Services to you. Without limiting any of those representations or warranties, we have the right, though not the obligation, to, in our own sole discretion, refuse or remove any Content that, in our reasonable opinion, violates any of our policies or is in any way harmful, inappropriate or objectionable.
3. Our Purpose
The application is a platform created so that the Clients can find Professionals for their requirement and get professional services. Professionals can list themselves and provide their services to the users.
Neoarks simply makes and maintains the application and its Clients and Professionals can search, identify and transact directly with each other. Neoarks does not find Clients for Professionals, search opportunities for Professionals or introduce Professionals to Clients. Professionals may be notified when an opportunity related to their profession is posted. Users are solely responsible for assessing and deciding the suitability of any Opportunity posted, Professionals submitting proposals.
If Client agrees to enter in a contract, the contract is purely between the Client and Professional and Neoarks is not any kind of party in that contract.
Users are solely responsible for (a) verifying the accuracy and legality of any User content, (b) deciding the suitability of other Professionals for an opportunity contract, (c) negotiating, concurring and implementing any terms and conditions of opportunity contract, (d) performing Professional services, or (e) paying for Opportunity contract.
Neoarks does not make any representations about or guarantee the truth or accuracy of any Professional’s or Client’s postings or other User Content on the application; does not verify any feedback or information provided by Users about Professionals or Clients; and does not vet or otherwise perform background checks on Professionals or Clients. You acknowledge, agree, and understand that Neoarks does not, in any way, supervise, regulate, direct, control, or evaluate Professionals or their work and is not responsible for any Opportunity or Opportunity terms. Neoarks makes no representations about and does not guarantee, and you agree not to hold Neoarks responsible for, the quality, safety, or legality of Professional Services; the qualifications, background, or identities of Users; the ability of Professionals to deliver Professional Services; the ability of Clients to pay for Professional Services; User Content, statements or posts made by Users; or the ability or willingness of a Client or Professional to actually complete a transaction.
You also acknowledge, agree, and understand that Professionals are solely responsible for determining, and have the sole right to determine, which Opportunities to accept; the time, place, manner, and means of providing any Professional Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Neoarks, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Neoarks will not have any liability or obligations under or related to Opportunity contracts and/or Professional Services for any acts or omissions by you or other Users; (iii) Neoarks does not, in any way, supervise, direct, or control any Professional or Professional Services; does not impose quality standards or a deadline for completion of any Professional Services; and does not dictate the performance, methods or process Professional uses to perform services; (iv) Professional is free to determine when and if to perform Professional Services, including the days worked and time periods of work, and Neoarks does not set or have any control over Professional’s pricing, work hours, work schedules, or work location, nor is Neoarks involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Professional for an Opportunity; (v) Professional will be paid at such times and amounts as agreed with a Client in a given opportunity Contract, and Neoarks does not, in any way, provide or guarantee Professional a regular salary or any minimum, regular payment; (vi) Neoarks does not provide Professionals with training or any equipment, labor, tools, or materials related to any Opportunity contract; and (vii) Neoarks does not provide the premises at which Professionals will perform the work. Professionals are free to use subcontractors or employees to perform Professional Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Professional’s subcontractor(s) or employee(s). If a Professional uses subcontractors or employees, Professional further agrees and acknowledges that this paragraph applies to Neoarks’s relationship, if any, with Professional’s subcontractors and employees as well and Professional is solely responsible for Professional’s subcontractors and employees.
4. Contract Between Client and Professional
4.1 Opportunity Contracts
If a Client and Professional decide to enter into an Opportunity contract, the Opportunity contract is a contractual relationship directly between the Client and Professional. Client and Professional have complete discretion both with regard to whether to enter into an Opportunity contract with each other and with regard to the terms of any Opportunity contract. You acknowledge, agree, and understand that Neoarks is not a party to any Opportunity contract, that the formation of an Opportunity contract between Users will not, under any circumstance, create an employment or other service relationship between Neoarks and any Professional or a partnership or joint venture between Neoarks and any User.
With respect to any Opportunity contract, Clients and Professionals may enter into any written agreements that they deem appropriate (e.g., non-disclosure agreements, confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Neoarks’s rights and obligations under the Terms of Service, including this Agreement.
4.2 Disputes among Users
For disputes arising between Clients and Professionals, you agree to abide by the dispute process that is explained in the Instructions that apply to your particular Opportunity contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Neoarks will not and is not obligated to provide any dispute assistance beyond what is provided in the Instructions. If Professional or Client intends to obtain an order from any arbitrator or any court that might direct Neoarks, Neoarks, or our Affiliates to take or refrain from taking any action with respect to an Account, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Neoarks or Neoarks , we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
4.3 Confidential Information
Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Optional Opportunity contract Terms. If and to the extent that the Users do not articulate any different agreement, then they agree that this Section 3.3 (Confidentiality) applies. To the extent a User provides Confidential Information to the other, 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, the party 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.
4.4 Third-Party Beneficiaries
It is the intent of the Parties to this Agreement that Users who have entered into Opportunity contracts or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this
1. Section 3 only.
5.1 Service Fee for Clients & Professionals
Clients and Professionals pay Neoarks a Service Fee for the use of the application. Neoarks charges service fees to Professionals and Clients, for using the application’s communication, invoicing, reporting, dispute resolution and payment services. The Service Fees (to use the Application and Application Services) are paid solely by User. When a Client pays a Professional for a Project or when funds related to a Project are otherwise released to a Professional, Neoarks will credit the Professional account for the full amount paid or released, and then subtract and disburse to Neoarks the Service Fee. Professional hereby irrevocably authorizes and instructs Neoarks to deduct the Service Fee from the Professional’s Wallet and pay Neoarks on Professional’s behalf. In the event the Professional chooses to withdraw funds in a currency other than U.S. dollars, there may also be a foreign currency conversion charge; the rate may differ from rates that are in effect on the date of the payment and you may be able to obtain a better rate from your bank or financial institution.
Professionals can apply to a specified number of opportunities in a month and can pay Neoarks a membership fee if they subscribe for a paid membership and may purchase “Opportunities “. Professionals may subscribe to different levels of participation and privileges on the Application, by payment of subscription fees and by purchasing ” Opportunities”.
5.3 Disbursement Fees
Professionals may pay Neoarks a disbursement fee for remitting payments to their preferred payment method (“Disbursement Fee”). The Disbursement Fee is paid to Neoarks in consideration of costs incurred and administration of disbursements via the disbursement method requested by Professional and varies by disbursement method. The Disbursement Fee for each disbursement method is listed at under Fees and Schedules on the Application as revised from time to time. Additional activation, maintenance, and account fees may be charged by the disbursement method requested by Professional.
5.4 GST & Other Taxes
Neoarks 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 Professional (the “Taxes”). In such instances, any amounts Neoarks is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Neoarks under the Terms of Service.
5.5 No Fee for Introducing or finding Opportunities
Neoarks does not introduce Clients to Professionals and does not help Professionals secure Opportunities. Neoarks merely makes the Application and Application Services available to enable Professionals to do so themselves and may from time to time highlight Opportunities that may be of interest. Therefore, Neoarks does not charge a fee when a Professional finds a suitable Client or finds a Project. In addition, Neoarks does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Composite Information.
6. Payment Terms and Services
6.1 Payment Services
Neoarks provides payment services to Users to deliver, hold, and/or receive payment for a Project, and to pay fees to Neoarks.
6.1.1 Payment Agreement and Terms
Neoarks will use and release funds deposited in an Account only in accordance with this Agreement and the applicable Instructions. You acknowledge and agree that Neoarks acts merely as an Internet agent. Neoarks has fully delivered the Services to you if Neoarks provides the Services described in this Agreement and the applicable Instructions. Neoarks is only obligated to perform those duties expressly described in this Agreement and any applicable Instructions. If you authorize or instruct Neoarks to release or make a payment of funds from an Account associated with you, Neoarks may release or pay those funds as instructed in reliance on your authorization, this Agreement, and the applicable Instructions. In addition, Neoarks may release or pay funds from an Account as required by applicable law. Fixed-Price Opportunities. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and Neoarks will follow, the Fixed-Price Instructions.
Neoarks will use and release funds deposited in an Account only in accordance with this Agreement and the applicable Instructions. Depending on your needs and the applicable Instructions, Neoarks will establish and maintain one of three different types of Accounts, subject to the applicable Instructions: (a) Client Account. After entering into a Opportunity contract, the first time a Client makes a payment for a Project, Neoarks will establish and maintain a “Client Account” to hold funds for the Client to use to make payments for Opportunities, to receive refunds in connection with Opportunities, and to make payments to Neoarks for payment processing and administration fees. (b) Professional Account. After entering into a Opportunity contract, the first time a Professional uses the Application to receive payment for a Project, Neoarks will establish and maintain a “Professional Account” for Professional to receive payments for Opportunities, withdraw payments, make payments for Service Fees and to Neoarks for other fees, and issue refunds to Clients. (c) Fixed Price Contract. When you enter into a Fixed-Price Contract, Neoarks will establish and maintain a “Fixed-Price Account” to receive, hold, and release payments pursuant to the Fixed-Price Instructions for the Project that is the subject of that Fixed-Price Contract. You hereby authorize and instruct Neoarks to act as agent in connection with the Accounts and the payment, holding, and receipt of funds for each Project and other specified purposes in accordance with the Terms of Service and the applicable Instructions. Client and Professional may access current information regarding the status of an Account on the Application.
6.1.3 Professional Appointment of Neoarks and Subsidiaries As Agent
If you are a Professional and you request payment related to an Hourly Contract or the release of funds from a Fixed-Price Account, you hereby appoint Neoarks and its wholly-owned subsidiaries, as your agent to obtain funds on your behalf and credit them to your Professional Account as applicable. Because Neoarks is Professional’s agent, Professional must, and hereby does, fully discharge and credit Professional’s Client for all payments and releases that Neoarks receives on Professional’s behalf from or on behalf of such Client.
6.1.4 Tittle To Funds
Neoarks is not a bank. Neoarks deposits and maintains funds in a trust account at a bank insured by the Federal Deposit Insurance Corporation and approved to receive, release, hold, and deliver funds under applicable laws and regulations. The trust account is separate from the operating accounts of Neoarks. Neoarks will not voluntarily make funds depoApplicationd in the trust account available to its creditors for any other purposes. Neoarks holds only legal title to, and not any equitable interest in, the trust account and any funds depoApplicationd therein. This Agreement is supplementary to the Opportunity contract and to any other agreement between Client and Professional concerning the Project.
6.1.5 No Interest
You agree that you will not receive any kind of interest or other earnings on the funds held in your Account or Wallet. Neoarks, may charge or deduct fees, may receive a reduction in fees or expenses charged, and may receive other compensation in connection with the services they provide.
6.1.6 Agent Duties
Neoarks will be under no duty to inquire, probe, scrutinize or investigate, any agreement or communication between Client and
Professional, even if posted to the application. We have no duty to solicit any payments or releases that may be due to or from any trust Account. To the extent permitted by applicable law, we will not be liable for anything done, suffered, or omitted in good faith by us in accordance with the advice or opinion of any counsel, accountants, or other skilled persons. If we are uncertain as to our duties or rights hereunder or receive instructions, claims, or demands from any party hereto that, in our opinion, conflict with any of the provisions of this Agreement or the applicable Trust Instructions, we will be entitled to refrain from taking any action, and our sole obligation will be to keep safely all property held in the Trust Account until we are directed otherwise in writing by Client and Professional or by a final order or judgment of an arbitrator or court of competent jurisdiction.
6.1.7 Agent Right
We have the right, in our sole discretion, but not the obligation, to institute arbitration or, if no arbitration provision applies, other legal proceedings, including depositing funds held in the Account with a court of competent jurisdiction, and to resolve any dispute between Client and Professional related to the Account. Any provision of this Agreement and the applicable Instructions to the contrary notwithstanding and regardless whether we are identified as a party in interest in any dispute, arbitration, or other legal proceeding, nothing herein will be construed to limit our legal and equitable rights, including, but not limited to, depositing funds held in the Account with a court of competent jurisdiction. Any corporation or association into which Neoarks may be merged or converted or with which Neoarks may be consolidated, or any corporation or association to which all or substantially all the business of Neoarks may be transferred will succeed to all the rights and obligations of Neoarks as holder and agent under this Agreement and the applicable Instructions without further act to the extent permitted by applicable law.
6.2 Client Payments On Opportunity Contracts
For Hourly Contracts, Professional will invoice Client on a weekly basis through Neoarks, and Client will pay invoices consistent with the Hourly Instructions. For Fixed-Price Contracts, Client becomes obligated to fund immediately upon sending a Fixed-Price Contract offer (for the full amount or for the first milestone, if milestones are used) or upon activating any additional milestone.
Client acknowledges and agrees that for both Hourly Contracts and Fixed-Price Contracts failure to decline or dispute an Hourly Invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Instructions. When Client authorizes the payment of the Professional Fees for a Fixed-Price Contract on the Application, Client automatically and irrevocably authorizes and instructs Neoarks or Elance Limited to charge Client’s Payment Method for the Professional Fees. When Client approves an Hourly Invoice for an Hourly Contract, Client automatically and irrevocably authorizes and instructs Neoarks or Elance Limited to charge Client’s Payment Method for the Professional Fees.
6.3 Disbursements to Professionals
Under the relevant Instructions, Neoarks disburses funds that are available and payable to a Professional upon Professional’s request. A Professional can request disbursement of available funds any time on a one-time basis or by setting up an automatic disbursement schedule. If Professional does not request a disbursement, Neoarks will automatically disburse available funds no more than 90 days after the Professional Fees are released to the Professional Account, unless the amount in the Account is less than the Minimum Threshold. For purposes of the Terms of Service, a “Minimum Threshold” is either (a) $100 for Professionals within the United States, or (b) $1,000 for Professionals outside the United States. When the funds in the Professional Account are below the Minimum Threshold, the automatic disbursement schedule is paused and the available and payable funds are released on the earlier of (i) Professional’s request, or (ii) on the first scheduled automatic disbursement occurring after the amount exceeds the Minimum Threshold or 180 days after the funds are available in the Professional Account. For Hourly Contracts, Professional Fees become available to Professionals following the expiration of the dispute period and the five-day security periods. For Fixed-Price Contracts, the Professional Fees become available to Professionals following the expiration of the five-day security period after the funds are released. The security period begins after Client accepts and approves work submitted by Professional. Notwithstanding any other provision of the Terms of Service or the Instructions, and except as prohibited by applicable law, if we believe, in our sole discretion, that you have violated the conditions and restrictions of the Application or the Terms of Service, including by committing or attempting to commit fraud or other illicit acts on or through the Application, Neoarks may refuse to process or may hold the disbursement of the Professional Fees and take such other actions with respect to the Account as we deem appropriate in our sole discretion and in accordance with applicable law. Without limiting the foregoing, Neoarks , in its sole discretion and to the extent permitted by applicable law, may also refuse to process or may hold the disbursement of the Professional Fees or any other amounts and offset amounts owed to us if: (a) we require additional information, such as Professional’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Professional Fees may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) 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 Professional Fees is no longer necessary, Neoarks will release such hold as soon as practicable. In addition, notwithstanding any other provision of the Terms of Service or the Instructions 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 a Professional, despite our provision of the Application Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Neoarks to (and Neoarks will have the right to) charge the applicable Account, 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 Application and Application Services and close your Account.
If Client is in “default”, meaning the Client fails to pay the Professional Fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of Neoarks), Neoarks will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Professional Fees when due, (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days, an account current after a credit or debit card is declined or expires, (c) Client fails to pay an invoice issued to the Client by Neoarks within the time period agreed or, if none, within 30 days, (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Neoarks for Professional Fees or such other amount due being reversed to the Client, or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account. If Client is in default, Neoarks may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Application and Application Services, including Client’s authority to use the Application to process any additional payments, enter into Opportunity contracts, or obtain any additional Professional Services from other Users through the Application. However, Client will remain responsible for any amounts that accrue on any open Opportunities 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 Neoarks 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. Neoarks or Neoarks , at our discretion and to the extent permitted by applicable law, may set off amounts due against other amounts received from Client or held by Neoarks or Neoarks for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
6.5 No Return of Funds
Client acknowledges and agrees that Neoarks will charge Client’s designated Payment Method for the Professional Fees incurred as described in the applicable Instructions and that once Neoarks charges or debits the Client’s designated Payment Method for the Professional Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Professional Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Neoarks or Neoarks Trust may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.
6.6 Payment Methods
6.7 U.S. Dollars and Foreign Currency Conversion
The Application and the Application Services operate in U.S. Dollars. If a User’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make or receive payments in U.S. Dollars, the Application may display foreign currency conversion rates that Neoarks, Neoarks , or our Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Application. Each User, at its sole discretion and risk, may authorize the charge, debit, or credit of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Application. A list of supported foreign currencies is available on the Application. If foreign currency conversion is required to make a payment in U.S. Dollars and either Neoarks, Neoarks , or our Affiliates does not support the foreign currency or the User does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Application, Neoarks or one of our Affiliates will charge, debit, or credit the User’s Payment Method in U.S. Dollars and the User’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by the User’s Payment Method provider. The User’s Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. The User’s authorization of a payment using a foreign currency conversion rate displayed on the Application is at the User’s sole risk. Neoarks, Neoarks , and our Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Neoarks, Neoarks , and our Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments to and from the Account.
7. Non Circumvention
Section 7 discusses your agreement to make and receive payments only through Neoarks for two years from the date you first meet your Client or Professional on the Application, unless you pay an Opt-Out-Fee, as detailed below.
7.1 Making Payments Through Neoarks
You acknowledge and agree that a substantial portion of the compensation Neoarks receives for making the Application available to you is collected through the Service Fee described in Section 5.1. Neoarks only receives this Service Fee when a Client and a Professional pay and receive payment through the Application. Therefore, for 24 months from the time you identify or are identified by any party through the Application (the “Non-Circumvention Period”), you agree to use the Application as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Neoarks Relationship”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another party through the Application, such as if you and another User worked together before meeting on the Application, then the Non-Circumvention Period does not apply. If you use the Application 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 when acting in that capacity with respect to the other User. Except if you pay the Opt-Out Fee (see Section 7.2), you agree not to circumvent the Payment Methods offered by the Application. By way of illustration and not in limitation of the foregoing, you agree not to: Submit proposals or solicit parties identified through the Application to contract, hire, work with, or pay outside the Application. Accept proposals or solicit parties identified through the Application to contract, invoice, or receive payment outside the Application. Invoice or report on the Application or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users. Refer a User you identified on the Application to a third-party who is not a User of the Application for purposes of making or receiving payments off the Application. You agree to notify Neoarks immediately if a person suggests to you making or receiving payments outside of the Application in violation of this Section 7.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Neoarks by sending an email message to: policy-reports@Neoarks.com. If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Application, such as minimum rates supported on the Application, and therefore choose to cease using the Application, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Application.
7.2 Opting Out
You may opt-out of the obligation in Section 7.1 with respect to each Neoarks Relationship only if the Client or prospective Client or Professional pays Neoarks an opt-out fee for each such relationship (the “Opt-Out Fee”). The Opt-Out Fee is computed as follows
(a) interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, on the amount calculated in (b), from the date Client first makes payment to the subject Professional until the date the Opt-Out Fee is paid; and (b)the greater of: (i) $3,500; or (ii) 25% of the anticipated annualized salary or wages for one year if the Client offers Professional employment directly; or (iii) all Service Fees that would be earned by Neoarks from the Neoarks Relationship during the Non-Circumvention Period, computed based on the annualized amount earned by Professional from Client during the most recent normalized 8-week period, or during such shorter period as data is available to Neoarks; (iv) provided, however, that if the amount in (ii) and (iii) cannot be ascertained due to uncertainty or lack of sufficient information, then Neoarks and you agree that fee shall be $3,500; if only one of (ii) or (iii) can be ascertained, then Neoarks and you agree that amount shall be used if it is greater than $3,500. To pay the Opt-Out Fee, you must request instructions by sending an email message to optoutfee@Neoarks.com. If Neoarks determines, in its sole discretion, that you have violated Section 7, Neoarks or its Affiliates may, to the maximum extent permitted by law (x) charge your Payment Method the Opt-Out Fee (including interest) if permitted by law or send you an invoice for the Opt-Out Fee (including interest), which you agree to pay within 30 days, (y) close your Account and revoke your authorization to use the Application and Application Services, and/or (z) charge you for all losses and costs (including any and all time of Neoarks’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
8. 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 Neoarks upon request. Nothing in this subsection requires or will be construed as requiring Neoarks to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Opportunity contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Application will not be construed as creating any responsibility on Neoarks’s part to store, backup, retain, or grant access to any information or data for any period.
9. Warranty Disclaimer
YOU AGREE NOT TO RELY ON THE APPLICATION, THE APPLICATION SERVICES, ANY INFORMATION ON THE APPLICATION OR THE CONTINUATION OF THE APPLICATION. THE APPLICATION AND THE APPLICATION SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEOARKS MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE APPLICATION, THE APPLICATION SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEOARKS DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. 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 14 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST NEOARKS WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
10. Limitation of Liability
Section 10 discusses your agreement that Neoarks usually will not have to pay you damages relating to your use of the Application and Application Services and, if it is, at most it will be required to pay you $2,500, as detailed below. Neoarks is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to: your use of or your inability to use our Application or Application Services; delays or disruptions in our Application or Application Services; viruses or other malicious software obtained by accessing, or linking to, our Application or Application Services; glitches, bugs, errors, or inaccuracies of any kind in our Application or Application Services; damage to your hardware device from the use of the Application or Application Services; the content, actions, or inactions of third parties’ use of the Application or Application Services; a suspension or other action taken with respect to your Account; your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), CompoApplication Information, or metrics found on, used on, or made available through the Application; and your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL NEOARKS, 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 NEOARKS, 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 NEOARKS WITH RESPECT TO OPPORTUNITY CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR PROFESSIONAL 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), 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.
In addition to the recognition that Neoarks is not a party to any contract between Users, you hereby release Neoarks, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Professional Services provided to Client by a Professional and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Instructions.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
This release will not apply to a claim that Neoarks failed to meet our obligations under the Terms of Service.
You will indemnify, defend, and hold harmless Neoarks and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Application and the Application Services by you or your agents, including any payment obligations or default (described in Section 6.4 (Non-Payment)) incurred through use of the Application Services; (b) any Opportunity contract entered into by you or your agents, including, but not limited to, the classification of a Professional as an independent contractor; the classification of Neoarks as an employer or joint employer of Professional; 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; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, wilful misconduct, or fraud by you or your agents; and (f) 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 12, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password. “Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party. “Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
13. Agreement Term and Termination
Unless both you and Neoarks 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, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to legalnotices@Neoarks.com. In the event you properly terminate this Agreement, your right to use the Application and Application Services is automatically revoked, and your Account will be closed. Neoarks is not a party to any Opportunity contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Opportunity contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Opportunities, you agree (a) you hereby instruct Neoarks to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Opportunities have closed on the Application; (c) Neoarks will continue to perform those Application Services necessary to complete any open Project or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Neoarks for any Application Services or such other amounts owed under the Terms of Service and to any Professionals for any Professional Services. Without limiting Neoarks’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Application or Application Services, deny your registration, or permanently revoke your access to the Application and refuse to provide any or all Application Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Neoarks or our Affiliates; may be contrary to the interests of the Application or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Application under the same Account or a different Account or reregister under a new Account without Neoarks’s prior written consent. If you attempt to use the Application 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. You acknowledge and agree that the value, reputation, and goodwill of the Application depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Opportunity contracts with you. You therefore agree as follows: IF NEOARKS DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, NEOARKS HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO OPPORTUNITY 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 NEOARKS 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.
13.2 Account Data On Closure
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Application and that that any closure of your Account may involve deletion of any content stored in your Account for which Neoarks will have no liability whatsoever. Neoarks, 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 and the other Terms of Service 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 the Terms of Service, the termination of this Agreement for any reason will not release you or Neoarks 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.
14. Disputes Between You and Neoarks
Section 14 discusses your agreement with Neoarks and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally, as detailed below.
14.1 Dispute Process, Arbitration, and Scope
If a dispute arises between you and Neoarks or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, Neoarks, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Neoarks (including without limitation any claimed employment with Neoarks or one of our Affiliates or successors), the termination of your relationship with Neoarks, or the Application Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”). Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Terms of Service, any Opportunity contract, payments or agreements, any payments or monies you claim are due to you from Neoarks or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Neoarks or the termination of that relationship. Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.
14.2 Choice of Law
14.3 Informal Dispute Resolution
Before serving a demand for arbitration of a Claim, you and Neoarks agree to first notify each other of the Claim. You agree to notify Neoarks of the Claim at Attn: Legal, 2625 Augustine Dr., Suite 601, Santa Clara CA 95054 or by email to legalnotices@Neoarks.com, and Neoarks agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Neoarks then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Neoarks, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Neoarks will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
14.4.1. Scope of Arbitration Agreement and Conduct of Arbitration
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Neoarks ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, the Terms of Service and the Neoarks Payroll Agreement. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Professionals that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where Professional is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person. You and Neoarks will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Professional will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with Neoarks to make up the difference, if any. In any arbitration under the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect in which a User makes a claim under a consumer protection statute, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, or $250.00, whichever is less, with Neoarks to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. This Arbitration Provision does not apply to litigation between Neoarks and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4, below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment. This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Neoarks will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
14.4.2. Interpretation and Enforcement of This Arbitration Provision
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and Neoarks agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14.4.3. Class and Collective Waiver
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Neoarks agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. You and Neoarks agree that you will not be retaliated against, disciplined or threatened with discipline as a result of your filing or participating in a class or collective action in any forum. However, Neoarks may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
14.4.4. Right to opt out of The Arbitration Provision
You may opt out of the Arbitration Provision contained in this Section 14 by notifying Neoarks in writing within 30 days of the date you first registered for the Application. To opt out, you must send a written notification to Neoarks at Attn: Legal, 2625 Augustine Dr., Suite 601, Santa Clara CA 95054 that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to legalnotices@Neoarks.com. Opting out of this Arbitration Provision will not affect any other terms of this Agreement. If you do not opt out as provided in this Section 14.4.4, continuing your relationship with Neoarks constitutes mutual acceptance of the terms of this Arbitration Provision by you and Neoarks. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision. 14.4.5. Enforcement of this Arbitration Provision. This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and Neoarks agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
15.1 Entire Agreement
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Neoarks 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 the Terms of Service are included for ease of reference only and have no binding effect. Even though Neoarks drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Neoarks because of the authorship of any provision of the Terms of Service.
15.2 Modifications; Waiver
No modification or amendment to the Terms of Service will be binding upon Neoarks unless in a written instrument signed by a duly authorized representative of Neoarks or posted on the Application by Neoarks. 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 User Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Neoarks’s prior written consent in the form of a written instrument signed by a duly authorized representative of Neoarks. Neoarks may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
If and to the extent any provision of this Agreement or the other Terms of Service 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.
15.5 Force Measure
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, natural disasters, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
15.6 Prevailing Language and Location
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Application is controlled and operated from our facilities in India.
15.7 Access of The Application Outside INDIA
Neoarks makes no representations that the Application is appropriate or available for use outside India. Those who access or use the Application from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, Indian, state, and local laws and regulations. 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. In order to access or use the Application or Application Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Application or Application Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce 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. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Application and Application Services and your license to use the Application or Application Services will be immediately revoked.
We perform regular backups of the Content and will do our best to ensure the completeness and accuracy of these backups. In the event of hardware failure or data loss, we will restore backups automatically to minimize the impact and downtime. Links to other mobile applications Although this Mobile Application may link to other mobile applications, we are not, directly or indirectly, implying any approval, association, sponsorship, endorsement, or affiliation with any linked mobile application, unless specifically stated herein. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any businesses or individuals or the content of their mobile applications. We do not assume any responsibility or liability for the actions, products, services, and content of any other third parties. You should carefully review the legal statements and other conditions of use of any mobile application which you access through a link from this Mobile Application. Your linking to any other off-Application mobile applications is at your own risk.
In addition to other terms as set forth in the Agreement, you are prohibited from using the Mobile Application or its Content:
(a) for any unlawful purpose;
(b) to solicit others to perform or participate in any unlawful acts;
(c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances;
(d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others;
(e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
(f) to submit false or misleading information;
(g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related mobile application, other mobile applications, or the Internet;
(h) to collect or track the personal information of others;
(i) to spam, phish, pharm, pretext, spider, crawl, or scrape;
(j) for any obscene or immoral purpose; or
(k) to interfere with or circumvent the security features of the Service or any related mobile application, other mobile applications, or the Internet. We reserve the right to terminate your use of the Service or any related mobile application for violating any of the prohibited uses.
Intellectual property rights
This Agreement does not transfer to you any intellectual property owned by Neoarks or third-parties, and all rights, titles, and interests in and to such property will remain (as between the parties) solely with Mobile Application Developer. All trademarks, service marks, graphics and logos used in connection with our Mobile Application or Services, are trademarks or registered trademarks of Neoarks or Neoarks licensors. Other trademarks, service marks, graphics and logos used in connection with our Mobile Application or Services may be the trademarks of other third-parties. Your use of our Mobile Application and Services grants you no right or license to reproduce or otherwise use any Neoarks or third-party trademarks.
Limitation of liability
To the fullest extent permitted by applicable law, in no event will Mobile Application Developer, its affiliates, officers, directors, employees, agents, suppliers or licensors be liable to any person for (a): any indirect, incidental, special, punitive, cover or consequential damages (including, without limitation, damages for lost profits, revenue, sales, goodwill, use of content, impact on business, business interruption, loss of anticipated savings, loss of business opportunity) however caused, under any theory of liability, including, without limitation, contract, tort, warranty, breach of statutory duty, negligence or otherwise, even if Neoarks has been advised as to the possibility of such damages or could have foreseen such damages. To the maximum extent permitted by applicable law, the aggregate liability of Neoarks and its affiliates, officers, employees, agents, suppliers and licensors, relating to the services will be limited to an amount greater of one dollar or any amounts actually paid in cash by you to Neoark sfor the prior one month period prior to the first event or occurrence giving rise to such liability. The limitations and exclusions also apply if this remedy does not fully compensate you for any losses or fails of its essential purpose.
You agree to indemnify and hold Neoarks and its affiliates, directors, officers, employees, and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys’ fees, incurred in connection with or arising from any third-party allegations, claims, actions, disputes, or demands asserted against any of them as a result of or relating to your Content, your use of the Mobile Application or Services or any wilful misconduct on your part.
All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
The formation, interpretation, and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of Delhi, India without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of India. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Delhi, India, and you hereby submit to the personal jurisdiction of such courts. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Changes and amendments
We reserve the right to modify this Agreement or its policies relating to the Mobile Application or Services at any time, effective upon posting of an updated version of this Agreement in the Mobile Application. When we do, we will send you an email to notify you. Continued use of the Mobile Application after any such changes shall constitute your consent to such changes. Policy was created with ApplicationPolicies.
Acceptance of these terms
You acknowledge that you have read this Agreement and agree to all its terms and conditions. By using the Mobile Application or its Services you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to use or access the Mobile Application and its Services.
If you have any questions about this Agreement, please contact us.
This document was last updated on August 16, 2019