Terms and Conditions of Users
PLEASE READ CAREFULLY: These Terms and Conditions contain important information about your legal rights, remedies, and obligations.
SendWork operates a network platform that connects independent, self-employed individuals, contractors and/or businesses (“Providers”) willing and able to perform independent contractor and freelance services (“Jobs”), with clients (“Clients”) DESIRING to hire independent contractors, freelancers and businesses to perform such Jobs. These Terms and Conditions (“Agreement”) constitute a legally binding agreement made between Clients, Providers, vendors, and other users, whether personally or on behalf of an entity (“you,” “your,” “User,” or “Users”) and SendWork Inc. (“we,” “us,” “our,” or “SendWork”), concerning your access to and use of our network platform, which includes our mobile applications, website https://www.sendwork.com, social networking pages (collectively, the “Site”) and various content, features, applications, products, and services available via the Site and/or in connection with our network platform (“Services”). The Site and Services are collectively referred to as the “SendWork Platform.”
Acceptance of Terms
Please read the Agreement carefully before accessing the SendWork Platform. In consideration of your accessing the Site, you acknowledge the importance of protecting the integrity of the Services for all Users and you expressly agree to be bound by this Agreement and to follow any additional rules, requirements, practices, and guidelines that are posted on the Site from time to time. Please note, this Agreement sets out obligations you have to other
Users of the SendWork Platform and such Users may enforce their rights against you under this Agreement. YOUR USE OF THE SENDWORK PLATFORM IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, DO NOT ACCESS THE SITE AND DO NOT USE THE SERVICES.
Changes to this Agreement, Site, or Services
Full utilization of the SendWork Platform requires internet access through your mobile device. The Site may require periodic updates and you agree that you are solely responsible for any costs or expenses incurred by you in connection with updating the performance of the SendWork Platform. The Site may not download, or the Services may not operate properly with all mobile devices or all mobile service providers. We make no representation that the Site or Services will be compatible with your mobile device or service provider. You expressly agree that you are responsible for all text charges, data charges, and other expenses resulting from the use of the SendWork Platform on your mobile device, including from any notifications or alerts provided by the Services.
Before using the SendWork Platform, you warrant and represent that:
You are eighteen (18) years of age or older and that you are at least of the legally required age in the jurisdiction in which you reside to legally enter into a contract, and you have the legal capacity and authority to enter into this Agreement.
You are legally sound, sane and free from any encumbrance in entering this Agreement and you shall abide by the terms and conditions set forth in this Agreement, as updated and/or amended from time to time.
You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement and agree that you will so abide. Where you enter into this Agreement on behalf of another entity, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You will not access the Site through automated or non-human means, whether through a bot, script, or otherwise.
You will not use the Services for any illegal or unauthorized purpose and your use of the Services will not violate any applicable law or regulation.
Independent Nature of Users
SENDWORK DOES NOT PERFORM JOBS AND SENDWORK DOES NOT EMPLOY PROVIDERS (OR ANY OTHER INDIVIDUALS AND/OR ENTITIES) TO PERFORM JOBS. SENDWORK DOES NOT SUPERVISE, DIRECT, OR CONTROL A PROVIDER OR ANY JOB IN ANY MANNER, WHICH USER HEREBY UNDERSTANDS, ACKNOWLEDGES, AND AGREES. We serve as an intermediary between both sides of a transaction between a Provider and a Client and we do not actually perform any of the Jobs (other than operating the Site and providing technical support for the Services).
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT WE DO NOT PERFORM ANY JOBS AND WE DO NOT SUPERVISE, DIRECT, ORDER, OR CONTROL IN ANY RESPECT THE PERFORMANCE OF SUCH JOBS OR THE ACTIONS, ACTIVITIES, OR FAILURES TO ACT OF PROVIDERS. WE DO NOT EMPLOY ANY PROVIDER, EITHER ON A PART TIME OR FULL-TIME BASIS. PROVIDERS MAINTAIN THEIR INDEPENDENT STATUS AND SHALL NOT IN ANY WAY BE CONSIDERED OUR EMPLOYEES, AGENTS, OR REPRESENTATIVES. WE ARE NOT RESPONSIBLE FOR THE QUALITY, PERFORMANCE, TIMELY COMPLETION, AND/OR LEGALITY OF ANY JOB. WE MAKE NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, THOROUGHNESS OR ACCURACY OF ANY JOB REQUESTED BY A CLIENT OR PERFORMED BY A PROVIDER.
Job Contracts are Between Clients and Providers
The SendWork Platform includes the Site, which is a software-based communication platform. The Site helps connect Clients and Providers for the purpose of completing Jobs. SendWork site enables users to run a mobile service business including without limitation CRM, scheduling, billing, invoicing, communicating and payment integration functions. Both Clients and Providers are Users of the SendWork Platform and must comply with the terms of this Agreement. If a User agrees to hire another User for the performance of any Job, or if a User agrees to perform a Job for another User, then those two Users form a contract directly between themselves (“Job Contract”).
The terms of the Job Contract must include the terms set forth herein and any other contractual terms agreed to and accepted by both Client and Provider to the extent that such terms do not conflict with the terms of this Agreement and do not expand our obligations or restrict our rights under this Agreement. You hereby expressly agree that:
Users will contract directly with other Users for the execution of all Jobs.
SendWork is not a party to any Job Contract.
The formation of a Job Contract will not, under any circumstances, create an employment or other service relationship between SendWork and any Provider or User.
All Users understand and agree that workers, employees, providers and assistants are not employees, independent contractors, agents, or representatives of SendWork.
You further understand and agree that:
A Provider will assume full and sole responsibility for all payments, obligations, wages, state and federal income tax withholdings, costs, unemployment insurance, workers compensation insurance, contributions and expenses of each worker, employee or assistants
You understand and agree that you are responsible for maintaining insurance to cover damage to person or property that may occur with respect to any Job. For example, Client is responsible for maintaining insurance to cover any losses that may occur at Client’s property; and Provider is responsible for maintaining workers compensation and liability insurance coverage as needed or as legally required. Users represent and warrant that they, and the employees, agents, contractors, and subcontractors who may perform work for them, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which they may be subject in the jurisdiction(s) in which they offer their services and in relation to the specific job they are performing.
SendWork has no right, power, or authority to supervise or control any Assistants, employees or workers of providers or users.
No Assistant will have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, bonuses, workers compensation benefits, unemployment benefits, contributions, or any other employee benefit of any kind or nature whatsoever from SendWork.
SendWork will not be liable for any loss or damage sustained by a User resulting either directly or indirectly from the performance of a Job by an Assistant, including but not limited to personal injuries, death and property damage.
User Account Registration, Verification, and Termination
Registration. All Users are required to create and maintain an account (“Account”) to use the SendWork Platform. You will select a password to create your Account. You are responsible for keeping your password confidential and for any and all use of your password and Account (including unauthorized use). You are entirely responsible for all the actions and activities that occur or transpire under your Account. SendWork shall not be liable for any activity and disclaims any control over any Account. If you suspect any unauthorized activity from your Account or any breach of security, you must immediately inform us in writing. SendWork has the right to restrict any individual or entity from completing registration as a User except as prohibited by law.
Verification. When you register to use the SendWork Platform, you will provide us with certain information about yourself to help us verify your identity. You promise to provide current, complete and accurate information about yourself and you further agree to promptly update your Account to keep the information current. We may, in our sole discretion, use third parties to verify the information you provide to us and to obtain additional related information and corrections where applicable and you hereby authorize SendWork to request, receive, use, and store such information. We may accept or reject your request to use the SendWork Platform in our sole discretion.
Termination. We may, through written notice or email, suspend or terminate any Account or right of any User to use the SendWork Platform if we reasonably conclude that such User has breached this Agreement (“User breach”). Suspension or termination of an Account shall be effective immediately upon notice. If your Account has been suspended or terminated by SendWork, you will not be entitled to any refund of the unused balance in your Account and you will not be allowed to register and create a new account under a new identity. In addition to terminating or suspending your Account, we reserve the right to take appropriate legal action against you, including without limitation pursuing civil, criminal, and injunctive redress. This Agreement shall be binding on you, even in case of suspension or termination. You may terminate this Agreement at any time by ceasing the use of the Services and uninstalling the Site on your mobile device. Those provisions of this Agreement that by their very nature survive the expiration or termination of this Agreement shall continue to be a binding obligation on you.
Provider Background Checks
We check the backgrounds of each Provider using a third-party background check service that includes but is not limited to national criminal records check. If you are a Provider, you understand and agree that by registering for an Account to use the SendWork Platform, you are providing SendWork with written instructions and authorization (in accordance with the Fair Credit Reporting Act or similar laws) to obtain your personal and/or business credit report and/or conduct a background check, including a criminal background check at the time of registration and at any time in the future that SendWork reasonably believes there may be an increased level of risk associated with your Account. These checks include but are not limited to, verification of identification and criminal record background checks at the national level. Providers hereby grant SendWork their express consent to conduct and perform such background checks as required or deemed appropriate by SendWork. These checks will be in compliance with federal and state laws, including the Fair Credit Reporting Act.
Not Responsible for User Conduct or Representations
While we may perform background checks to vet Providers, we cannot confirm that Providers are who they claim to be. Therefore, SendWork cannot and does not assume any responsibility for the accuracy or reliability of identification or background check information or any information provided by Providers through the Site or in connection with the Services. EACH CLIENT IS HEREBY ADVISED TO VERIFY THE IDENTIFICATION OF EACH PROVIDER UPON ARRIVAL TO PERFORM ANY JOB. It is equally important to inform you that we do not check the backgrounds of Clients and therefore have no knowledge or information about a Client’s criminal background, including but not limited to whether a Client is listed on a sex offenders registry, criminal database, or terrorist watch list.
NOTICE TO BOTH CLIENTS AND PROVIDERS: When interacting with other Users, you are advised to exercise caution and common sense to protect your personal safety and property. You are hereby advised and warned that each User assumes all responsibility and risk for personal safety and security of property while interacting with other Users either in a physical environment or a virtual environment. YOU ACKNOWLEDGE AND AGREE THAT SENDWORK IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR ASSISTANT AND YOU HEREBY RELEASE SENDWORK FROM ANY LIABILITY RELATED THERETO. SENDWORK WILL NOT BE LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THESENDWORK PLATFORM.
The Site may contain profiles, email systems, push technologies, GPS locations, blogs, message boards, applications, job postings, chat areas, peer to peer video, audio chats, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with each other and create, submit, post, display, transmit, publish, distribute or broadcast content and materials to us or via the Site, including, without limitation, text, writings, video, photographs, graphics, comments, suggestions, ratings, reviews or other material (collectively, “User Generated Content”). You may use the Public Areas only to transmit and receive User Generated Content that relates to the performance of Jobs. All User Generated Content displayed in Public Areas may be viewed by other Users and through third-party websites. Any User Generated Content you submit must be appropriate for public display and will be treated as non-confidential and non-proprietary. For the safety of all Users and to maintain the integrity of the Site, you are prohibited from disclosing your personal contact information, such as your phone number or email address, in Public Areas. All submissions made to Public Areas will be public and User will be publicly identified by name or login identification when communicating in Public Areas. We have no obligation to monitor any User Generated Content and SendWork shall not be responsible for the action of any Users with respect to any User Generated Content posted in Public Areas.
Guidelines for Ratings and Reviews
The Site may allow you to rate and post reviews of Providers and Clients. Such ratings and reviews are considered User Generated Content and are governed by this Agreement. SendWork encourages each User to give objective, constructive and honest feedback about the other Users with whom they have entered into Job Contracts. SendWork does not investigate any User Generated Content, including ratings and reviews, posted by Users for accuracy or reliability. When posting a rating or review, you must comply with the following criteria:
You must have first-hand experience with the Provider or Client being rated or reviewed.
Your reviews must not contain offensive language, profanity, or abusive, racist, or hate language; discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation or disability; or references to illegal activity.
You should not be affiliated with competitors if posting negative ratings and/or reviews.
You may not post any false statements or organize a campaign encouraging others to post ratings and/or reviews, whether positive or negative.
Ratings and reviews are not endorsed by us, and do not necessarily represent our opinions. Clients should undertake their own research to be satisfied that a specific Provider is suitable for the Job. By posting a rating or review, you hereby grant to us a perpetual, non-exclusive, worldwide, royalty-free, fully-paid, assignable and sub-licensable right, and license to reproduce, modify, translate, transmit by any means, display, or distribute all content relating to your ratings and reviews. WE DO NOT ASSUME LIABILITY FOR ANY RATING OR REVIEW OR FOR ANY CLAIMS, LIABILITIES OR LOSSES RESULTING FROM ANY RATING OR REVIEW. In addition, each Provider hereby releases SendWork from, and shall not sue or bring any proceeding against SendWork for, any claim for defamation, invasion of the right to privacy, publicity or personality or based upon or relating to the use and exploitation of such Provider’s identity or likeness in connection with the SendWork Platform.
User-Generated Content License
By posting User Generated Content in Public Areas or making your User Generated Content accessible to the Site by linking your Account from the Site to any of your social networking accounts, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right and license to host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part) and distribute such User Generated Content for any purpose, commercial, advertising, or otherwise, to prepare derivative works of, or incorporate into other works, such User Generated Content, and to grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels. Such use and distribution license will apply to any form, media, or technology now known or hereafter developed, and includes our use of your name and any of the trademarks, service marks, trade names, and logos, personal and commercial images you provide. You agree to waive all moral rights in your User Generated Content and you warrant that moral rights have not otherwise been asserted in such User Generated Content. We do not assert any ownership over your User Generated Content. You retain full ownership of all of your User Generated Content and any intellectual property rights or other proprietary rights associated therewith. You are solely responsible for your User Generated Content and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your User Generated Content. We have the right, in our sole and absolute discretion, to pre-screen or delete any User Generated Content that does not comply with the User Code of Conduct (described below).
User Code of Conduct
Any use of the SendWork Platform that does not comply with the User Code of Conduct violates this Agreement and may result in, among other things, termination or suspension of your rights to use the SendWork Platform. When you use the SendWork Platform you thereby represent and warrant that:
The creation, distribution, transmission, accessing, downloading and copying of User Generated Content does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any User or other third parties, and you will not use the SendWork Platform in a manner that is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining our trade secrets.
You are the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and authorize us and others to use your User Generated Content as necessary to exercise the licenses granted by you under this Agreement.
You have the written consent, release, or permission of each and every identifiable individual person in your User Generated Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Generated Content in the manner contemplated by the SendWork Platform.
Your User Generated Content is not obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable (as determined by us), libellous or slanderous, does not ridicule, mock, disparage, intimidate or abuse anyone, does not advocate the violent overthrow of any government, does not incite, encourage or threaten physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party.
You will not use any information in any way obtained via the SendWork Platform or the performance of a Job to violate any law or to threaten, abuse, harass, defame, or stalk us or any other User.
Your User Generated Content does not contain material that solicits personal information from anyone under the age of eighteen (18) or exploits minors in a sexual or violent manner, and does not violate any federal or state law concerning child pornography or otherwise intended to protect the health or well-being of minors.
Your User Generated Content does not include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap.
Your User Generated Content does not otherwise violate or link to material that violates, any provision of this Agreement or any applicable law or regulation. We are not liable for any statement, representation, or User Generated Content provided by you in Public Areas.
You will not imply or state that any statements made by you (or any other User) via the Site are endorsed by us, without our prior written consent, and you will not remove or alter (visually or otherwise) any of our Marks or Proprietary Material.
You will not act fraudulently or become involved in the sale of counterfeit or stolen items or engage in, promote, or in any way encourage or assist in any illegal activity.
You will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising).
You will not hack or interfere with the SendWork Platform, our servers or any connected networks and you will not upload corrupted files, files that contain viruses, Trojan Horses, worms, time bombs, cancel-bots or other computer programming routines or similar software that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
You will not post the same Job repeatedly, conduct or forward surveys, contests, pyramid schemes, or chain letters, use the SendWork Platform to collect usernames and or/email addresses of Users, or use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the SendWork Platform in any manner.
You will not impersonate another User or any other individual or entity, whether real or fictitious, or allow any other individual or entity to use your identification, and you will not register under different usernames or identities after your Account has been suspended or terminated or register under multiple usernames or identities.
You will not use the SendWork Platform to solicit for or on behalf of any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not directly related to the proper and appropriate use of the SendWork Platform.
You will not attempt to circumvent the payments system or fees for the Services in any way, including but not limited to, processing payments outside of the payment system, including inaccurate information on invoices, or otherwise invoicing in a fraudulent manner.
You will not restrict or inhibit any User from using and enjoying the SendWork Platform.
You will not use the SendWork Platform in violation of this Agreement and you will not cause or assist any third party to engage in any activities prohibited or restricted under the terms of this Agreement.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information regarding the SendWork Platform (“Feedback”) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of your Feedback for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Feedback and you hereby warrant that any such Feedback is original with you or that you have the right to submit such Feedback. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Feedback.
SendWork has various levels of service that are billed on a subscription basis through Google Play in-app billing and Apple App store (“Biller”). When you sign up for a subscription billing service account, you agree to allow billing of your debit or credit card (or other payment method) for all due charges through Biller. Billing continues indefinitely at the interval and price specified for the subscription. At each subscription renewal, Biller charges the user account automatically, then notifies the user of the charges afterward by email. For monthly and annual subscriptions, billing cycles will always match subscription cycles, based on the purchase date. (Seasonal subscriptions are charged annually, on the first day of the season.)
Over the life of a subscription, the form of payment billed remains the same — Biller always bills the same form of payment (such as credit card or by Direct Carrier Billing) that was originally used to purchase the subscription. Biller will re-bill for any failed billing or past-due amounts. When the user cancels a subscription, Biller does not offer a refund for the current billing cycle. Instead, it allows the user to have access to the cancelled subscription until the end of the current billing cycle, at which time it terminates the subscription. For example, if a user purchases a monthly subscription and cancels it on the 15th day of the cycle, Biller will consider the subscription valid until the end of the 30th day (or other day, depending on the month). Subscription fees will not be prorated or refunded. Biller will bill you a full period’s subscription fee regardless of whether you cancel within that period.
SendWork from time to time may offer a free trial period and/or introductory pricing. To take advantage of a free trial or introductory pricing, a user must “purchase” the full subscription through the standard In-app Billing flow of the Biller, providing a valid form of payment to use for billing and completing the normal purchase transaction. However, the user is not charged any money during the free trial period. Instead, Biller records a transaction of $0.00 and the subscription is marked as purchased for the duration of the trial period or until cancellation. When the transaction is complete, Biller notifies users by email that they have purchased a subscription that includes a free trial period and that the initial charge was $0.00.
When the trial period ends, Biller automatically initiates billing against the credit card that the user provided during the initial purchase, at the amount set for the introductory pricing or if no introductory pricing then the full subscription is charged and continuing at the subscription interval. If necessary, the user can cancel the subscription at any time during the trial period. In this case, Biller marks the subscription as expired immediately, rather than waiting until the end of the trial period. The user has not paid for the trial period and so is not entitled to continued access or the introductory pricing after cancellation.
We offer a money-back guarantee for background check fees paid within the first 30 days. You will not receive a refund for payments not included in the background check fee (chargebacks, etc.). This money-back guarantee does not apply to subscriptions. You can cancel the service at any time by going to your subscriptions page of the Biller.
Card Not Present
You acknowledge that all Card transactions are processed as “card not present” transactions, even where the user is at the physical point of sale and a user has different Chargeback rights for “card not present” transactions than for transactions where the user physically presents the card to the provider.
We will review some or all the information that you submit in connection with your request to sign up for the Service. We may forward such information on to our Payment Service Provider retained by us (“PSP”). After you submit your application, we or our PSP may conclude that you will not be permitted to use the Service.
To set up a Provider account with the PSP, Providers may be required to register with the PSP, agree to separate terms and conditions of the PSP, and complete a vetting process at the request of the PSP. Providers must review and accept the terms and conditions between Providers and the PSP (“PSP Agreement”). SendWork uses Braintree, a division of PayPal, Inc. (“Braintree”) for payment processing services. By using the Braintree payment processing services, you agree to the Braintree Payment Services Agreement (“PSP Agreement”) available at https://www.braintreepayments.com/legal/payment-services-agreement-us. By accepting this PSP Agreement, each Client and Provider hereby agrees to have downloaded or printed, and reviewed and agreed to the PSP Agreement. You understand and agree that SendWork is not a party to the PSP Agreement, which is between the PSP, User, and any other parties listed in the PSP Agreement. SendWork has no obligations or liability to any User, Client or Provider under the PSP Agreement.
We may impose various transaction limits and rules on Users. If you believe that the transaction limits are interfering with your business, please contact our support to request higher limits. We may require more information about your business to evaluate your request and will decide at its sole discretion whether to action such requests. We will consider a variety of factors in making its decision, including but not limited to a proprietary set of rules, Chargeback rates, transaction behavior, and other supplemental data about your business.
Payment Processing Fees
You agree to pay a payment processing fee in addition to our platform fee.
We reserve the right to charge a transaction fee (“Convenience Fee”) for each card payment by User made through the Service. If a Convenience Fee is charged, it will be disclosed to You prior to making a payment and you will be given the option of not proceeding with the payment transaction if You do not wish to pay the Convenience Fee and do not wish to complete the payment using a card you have the option to complete the payment offline using cash, ACH/Wire and check. Providers will mark payment as such. We will only process the card payment if You agree to pay the Convenience Fee when applicable. Convenience fees are not surcharges and are non-refundable. All card payment methods through the online platform are charged a convenience fee for the convenience of credit card and debit cards online. These fees are being charged by SendWork for providing the convenience of an online payment channel.
Billing and Payment Between Users
We require Users to provide the credit card or bank account details to SendWork and the PSP retained by us. Client shall make payment for each Job (the “Payment”), which will include: the pricing of the Job executed by the Provider (“Job Payment”). We retain the right, in our sole discretion, to place a hold on your credit card for an ordered or completed Service transaction.
Payment to Providers and Dispute Resolution
Restrictions on Availability of Funds
Should we need to investigate or resolve any suspicious activity or pending dispute related to a User account, we may defer pay-out or restrict access to your funds for the entire time it takes for us to do so. We also may defer a pay-out or restrict access to your funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
The amount of a transaction may be reversed or charged back to your card account (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by the Card Associations, our processor, or a payer’s or our financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized or (d) is allegedly unlawful, suspicious, or in violation of the terms of this Agreement.
There is a non-refundable $35 fee for each Chargeback regardless of the outcome of the dispute.
Our Collection Rights for Chargebacks
For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve (defined below). We may deduct the amount of any Chargeback and any associated fees, fines, or penalties assessed by the Card Association or our processor from your bank account (including without limitation any Reserve), any proceeds due to you, your bank account, or other payment instrument registered with us. If you have pending Chargebacks, we may delay pay-outs to your chosen payment method such as bank, card or Venmo account. Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that (a) a Chargeback is assessed due to a customer’s complaint, in which case we will retain the funds, (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us in connection with the collection of all the Pros account deficit balances unpaid by you.
If we determine that you are incurring an excessive amount of Chargebacks, we may establish controls or conditions governing your account, including without limitation, by (a) establishing new processing Fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying pay-outs and (d) terminating, restricting or suspending your access to the Service.
You are solely responsible for all customer service issues relating to your services, including pricing, fulfillment, cancellation by you or Client, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback, reviews, or ratings concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a separate entity from us. As between you and us, we are solely responsible for customer service issues relating to your account.
If we have reasonable suspicion of misuse, we may temporarily suspend or delay payments to you and/or designate an amount of funds that we must maintain in a separate reserve account (a “Reserve”) to secure the performance of your payment obligations under this Agreement. We may require a Reserve for any reason, including if you have a high rate of Chargebacks or refunds, or other indications of performance problems related to your use of the Service. The Reserve will be in an amount as reasonably determined by us to cover anticipated Chargebacks, returns, or unfulfilled products or services or credit risk based on your processing history or such amount designated by our processor. The Reserve may be raised, reduced or removed at any time by us, in our sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in our favor, or otherwise as we or our processor may determine or require. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your account, including but not limited to any funds (a) due to you under this Agreement or (b) available in your bank account, or other payment instrument registered with us. You grant us a security interest in and lien on any and all funds held in any Reserve, and also authorize us to make any withdrawals or debits from the Reserve, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your bank account.
Fraud, Misuse, and Refund
Upon the written request of User or if SendWork reasonably believes that a potential fraud, misuse or unauthorized charges are taking place on the Site or in connection with the Services, then we, in our sole discretion, reserve the right to hold any Payment for an amount of time as we deem necessary; or refund such Job Payment or provide credits to the User or request PSP to perform such action on our behalf. Job Payment and fees must be paid through the PSP.
Waiver & Release
Users acknowledge the purpose of the SendWork Platform is to connect Users for the execution of Jobs. Because SendWork is not a party to Job Contracts between Clients and Users and SendWork is not involved in the completion of Jobs, in the event you have any dispute with any other User(s), you hereby agree to release SendWork (and its officers, directors, agents, investors, and employees) from any and all claims, demands, or damages of every kind and nature, known or unknown, related to, arising out of, or in any way connected to, any dispute between Users or the performance or non-performance of any Job. You further release SendWork and its personnel from any damage, loss, injury of every kind and nature whether or not expressly included herein. SendWork expressly disclaims any liability that may arise between Users.
Promotional Activities, Vouchers, and Promotional Cards
Special Promotions. We may run special promotions or contests for Users (“Promotional Activities”) from time to time and at our sole discretion. We may activate, modify, terminate, or change these Promotional Activities at any time and without any prior written notice to you.
Requirements, Limitations, and Restrictions for Vouchers. From time to time, as part of our Promotional Activities, we may offer voucher numbers in connection with payment for Jobs (“Vouchers”). You understand and agree to the following requirements, limitations, and restrictions, which apply to Vouchers: (i) Vouchers will not compromise the amount of the Job Payment a Provider is entitled to receive; (ii) User agrees to only use one Voucher per person; (iii) User agrees to comply with terms on the Voucher; (iv) User may only apply a Voucher to the first Job; (v) User agrees not to attempt to apply a Voucher to a subsequent SendWork account or request; (vi) SendWork reserves the right to withhold any benefit, feature or credit of any Voucher when we reasonably believe such use or redemption is in any way related to or caused by any act of negligence, fault, error, and/or mistake of our employees; (vii) Vouchers may not be redeemed in violation of applicable law and or terms such Vouchers; and (viii) when the terms of this Agreement are in conflict with the terms and conditions of any Voucher, the terms of the Voucher shall prevail.
Restrictions and Limitations for Promotional Cards. SendWork reserves the right to limit the issuance, disbursement, amount, balance and any other use of Promotional Cards by any person. Each Promotional Card is subject to the following additional restrictions and limitations. A Promotional Card: (i) cannot be combined with any other Promotional Card, Voucher, coupon or gift offered by SendWork; (ii) cannot be utilized as a credit or debit card; (iii) can be cancelled if SendWork believes it was obtained through fraudulent practices; (iv) shall not be associated with any credit card, credit line, overdraft protection or deposit account; (v) cannot be used to add value or balance; (vi) cannot be reloaded with value; and (vii) cannot be transferred to any other individual or entity under any circumstances. If the purchase/payment of SendWork exceeds the Promotional Card balance, the User shall pay the difference in the amount owed to SendWork through the PSP or any other means specified by SendWork.
Redeeming Promotional Cards. To redeem your unused Promotional Card balance, send the Promotional Card along with a self-addressed stamped envelope to: SendWork Inc., 382 NE 191st #42012, Miami, Florida, 33179, Attn: Promotional Cards. We do not guarantee delivery and shall not be responsible for redemption in the event that (i) the Promotional Card balance is equal to or greater than the cap; or (ii) we are unable to verify your current address or residency. When reasonably possible, we will return the Promotional Card to User.
Links to Other Websites
The Site may contain links (such as hyperlinks) to third-party websites. Such websites are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any third-party websites accessed through our Site. The inclusion of any links to third-party websites on our Sited does not imply approval and does not constitute the endorsement by SendWork of those websites or their content. Such links are provided as an information service, for reference and convenience only. We do not control any such websites and we are not responsible for the content, advertising, products or services on those websites. If you decide to leave our Site and access a third-party website or use or install any content from such websites, you do so at your own risk and you should be aware that this Agreement and any of our other policies, including our privacy and data gathering practices, no longer govern. It is your responsibility to evaluate the content and credibility of the information obtained from third-party websites. The onus of risk regarding such third-party websites is on the User. You agree and acknowledge that we do not endorse the products or services offered via third-party websites and we shall not be liable for any situation arising in connection with any User’s use of third party websites or the material or information provided in such websites. You hereby agree to hold us harmless from any liability or other harm caused by or that may result from your use of links that may appear on our Site. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any contact with third-party websites.
You may link your Account with any of your online accounts created on third-party websites (each such account, a “Third-Party Account”) by either: providing your Third-Party Account login information through the Site; or allowing us to access your Third-Party Account, as may be permitted under the applicable terms and conditions that govern your individual Third-Party Account. You hereby acknowledge that you are entitled to disclose your Third-Party Account login information to SendWork and/or grant SendWork access to your Third-Party Account without obligating us to pay any fees or making us subject to any usage limitations imposed by such Third-Party providers. By granting SendWork access to your Third-Party Accounts, you acknowledge and agree that SendWork may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account.
Unless otherwise specified in this Agreement, all content stored in your Third-Party Account shall be classified as User Generated Content for all purposes of this Agreement as well as your use of the SendWork Platform. Information posted to your linked Third-Party Accounts may be available on and through your Account with SendWork. If a Third-Party Account or associated service becomes unavailable or our access to such Third Party Account is terminated, then the User Generated Content stored in your Third-Party Account may no longer be accessible or otherwise available on and through the SendWork Platform. You may disable the connection between Account with SendWork and your Third-Party Accounts at any time. YOU UNDERSTAND AND AGREE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS ARE GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH-THIRD PARTIES. SendWork makes no effort to review any User Generated Content stored in your Third-Party Account for any purpose, including but not limited to, accuracy, legality or non-infringement. SendWork is not responsible for any User Generated Content stored in any of your Third-Party Accounts. You acknowledge and agree that we may access your email address book associated with your Third-Party Accounts and your contact lists, however, stored, solely for the purposes of identifying and informing you of those of your contacts who are also registered Users of our SendWork Platform. We will deactivate the connection between SendWork and User’s Third-Party Account and attempt to delete any information stored on SendWork servers that were obtained through such Third Party Account within a reasonable time from receipt of User’s written request made via email to email@example.com.
Provider Classification and Withholdings
Clients are solely responsible and assume all liability for determining whether Providers (including any Assistants) are independent contractors or employees of such Clients with respect to all Jobs and Clients are responsible for engaging Providers accordingly. SendWork disclaims all liability for such determinations and SendWork has no liability or control over the performance of Jobs and the Providers and their Assistants shall in no way, or under any circumstances, be considered employees of SendWork. Users assume any and all liability for their own local, state and federal tax classification and hereby acknowledge and agree to accept all consequences for any errors or omissions in any way related thereto.
As a User, you further acknowledge and warrant that:
SendWork does not allow any User to bind SendWork in any Job Contract.
Providers have no authority to enter into written or oral contracts on behalf of SendWork.
Providers are not scheduled, directed, supervised, controlled or instructed by SendWork in any way or respect.
SendWork has no control over and accepts no liability for the performance or non-performance of any Job by any Provider or Assistant.
SendWork does not control, evaluate, consult with, or decide upon the working place, environment or working hours of Providers or Assistants.
SendWork does not provide coveralls, helmets, gloves, safety goggles, safety shoes, other safety gear, equipment, or materials that may be needed or required to perform a Job.
SendWork does not provide supervisory services for any Provider or Assistant.
SendWork is not an employer of any User, whether Provider, Assistant, or Client.
SendWork is not an employment or placement service or agency.
SendWork is not liable to pay any taxes (either mentioned or unmentioned) in connection with the performance of any Job no matter how it may be classified by any local, state or federal taxing authority.
You agree to indemnify and defend SendWork against any and all claims that a Provider or Assistant was an independent contractor or employee of SendWork or that SendWork was an employer or joint employer of a Provider or any other claims made under any applicable employment-related laws (e.g. claims relating to employment termination, discrimination, harassment or retaliation), and any claims for unpaid wages, withholdings, overtime pay, failure to provide meal and rest breaks, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. This indemnification includes, but is not limited to, any and all judgments, settlements, fees, penalties, interest, finance charges, taxes, liabilities, attorney’s fees, and expenses of litigation, discovery, mediation, or settlement.
Intellectual Property Rights
The Site, its content (excluding User Generated Content), all text, graphics, data, formatting, graphs, designs, HTML, source code, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that is associated with the SendWork Platform is owned by us or our licensors. Proprietary Materials shall be protected in all forms, shapes, mediums, capacities whether or not specifically delineated herein. Ownership of Proprietary Materials includes coordination, selection, arrangement, and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended from time to time. Proprietary Materials are protected by the domestic and international laws of copyright, patents, infringement and/or any other proprietary rights and laws not specifically set forth herein. The Proprietary Material is provided on the Site “as is” for your information and personal use only. Without our prior, written consent, you are prohibited from and agree not to copy, download, use, redesign, reconfigure, transmit, or otherwise exploit for any commercial purpose whatsoever, Proprietary Material or User Generated Content from our Site. Provided you are eligible to use the Services, you are granted a limited license to download or print a copy of any portion of the Proprietary Material to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the SendWork Platform.
The trademarks, service marks, trade names, and logo designs contained in the Site (“Marks”) are owned by us or our licensors. You are not allowed to copy, edit, delete, change or use any Mark for any reason whatsoever. The Marks are the sole property of their respective owners and you are not allowed to copy or use those Marks for any purpose without the prior written consent of the original owner.
Copyright Complaints and Copyright Agent
Notifications. If you reasonably believe that any material, data, or other information available on or through the Site infringes upon any copyright you own or control, then you shall in good faith notify us by U.S. mail (“Notification”) to: SendWork Inc., 382 NE 191st #42012, Miami, Florida, 33179. Attention: Copyright Agent. You must provide the information described below, which Notification must meet the requirements of a proper takedown notice pursuant to the Digital Millennium Copyright Act (“DMCA”) at 17 U.S.C. 512(c)(3). A copy of your notification will be sent to the person who posted or stored the material addressed in the Notification. All Notifications should include the following information: (i) an explanation, in detail, that the alleged infringement, including the location on the Site and the URL where the infringed material is located and you shall provide adequate data and information in this regard to locate such material and shall explain why the infringement has occurred; (ii) a detailed explanation of the location where you claim the original copy of the copyrighted work is present, which can be in the form of URL, journal, book, patent, research paper or any other format; (iii) your address, telephone number, and e-mail address; (iv) a detailed statement acknowledging in good faith that the use of such copyrighted work is prohibited by the owner or agent of the copyrighted work; (v) a statement and warranty that the information provided in the Notification is true, accurate and complete and you are the rightful copyright owner or an agent acting on behalf of copyright owner of the material infringed or copyrighted; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
Counter Notification. We also hereby advise the alleged infringer of the DMCA statutory counter-notification procedure (described below) by which the alleged infringer may respond to your claim and request that we restore this material. If you believe your own copyrighted material has been removed from the Site as a result of mistake or misidentification, you may submit a written counter-notification to by U.S. mail (“Counter Notification”) to SendWork Inc., 382 NE 191st #42012, Miami, Florida, 33179, Attention: Copyright Agent. To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following: (i) identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled; (ii) a statement that you consent to the jurisdiction of the Federal District Court in which your address is located; (iii) a statement that you will accept service of process from the party that filed the Notification; (iv) your name, address, and telephone number; and (v) your physical or electronic signature. If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material after ten (10) business days but no later than fourteen (14) business days from the date we receive your Counter Notification, unless we first receive notice from the party filing the Notification informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question. If you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney’s fees. Filing a false Counter Notification constitutes perjury.
You acknowledge and agree that Confidential Information (as defined below) is a valuable and special asset of SendWork and you agree not to transfer, disclose, use, permit to use, destroy or damage any Confidential Information for any purpose other than as expressly permitted in this Agreement. Confidential Information shall only be disclosed to those authorized representatives of a User who is required to know the information for the performance of a Job and such representatives shall agree to maintain the confidentiality of such Confidential Information. User shall take all reasonable precautions to protect the Confidential Information from any unauthorized use or disclosure. User shall promptly notify SendWork in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. Upon request by SendWork, User shall return all Confidential Information to SendWork, including all duplications, stored or saved in any form. The term “Confidential Information” shall mean any and all trade secrets, confidential and proprietary information and all other information and data of SendWork that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information includes, but is not limited to, technical, financial, strategic, and other proprietary information relating to our business, operations, or other Users.
Disclaimer of Warranties
USE OF THE SENDWORK PLATFORM IS ENTIRELY AT USER’S OWN RISK.
THE SENDWORK PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SENDWORK MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT, MATERIALS, OR INFORMATION PROVIDED VIA THE SENDWORK PLATFORM OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE. SENDWORK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) ERRORS, MISTAKES, OR FAULTY, INACCURATE OR INCOMPLETE CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR USE OF THE SENDWORK PLATFORM; OR (III) ANY UNAUTHORIZED ACCESS TO OR USE OF SENDWORK’S SERVERS OR ANY AND ALL PERSONALLY IDENTIFIABLE INFORMATION OR FINANCIAL INFORMATION STORED THEREIN. SENDWORK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY JOB OFFERED BY A PROVIDER OR ANY OTHER SERVICE OFFERED OR ADVERTISED BY A THIRD PARTY THROUGH THE SENDWORK PLATFORM OR ANY HYPER-LINKED WEBSITE. SENDWORK WILL NOT BE A PARTY TO, OR IN ANY WAY BE RESPONSIBLE FOR MONITORING, ANY TRANSACTION BETWEEN YOU AND ANOTHER USER OR ANY THIRD PARTY (OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT). AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION.
EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE JOB AND SELECTING THE PROVIDER AND SENDWORK DOES NOT WARRANT ANY JOB OR OTHER SERVICES PURCHASED BY A CLIENT AND SENDWORK DOES NOT RECOMMEND ANY PARTICULAR PROVIDER. SENDWORK DOES NOT PROVIDE ANY WARRANTY OR GUARANTY WITH RESPECT TO ANY PROVIDER’S PROFESSIONAL ACCREDITATION, REGISTRATION, OR LICENSE. EACH PROVIDER IS RESPONSIBLE FOR AGREEING TO PERFORM A JOB FOR A CLIENT AND SENDWORK DOES NOT PROVIDE ANY WARRANTY OR GUARANTY WITH RESPECT TO ANY CLIENT’S APPROPRIATE BEHAVIOR OR PROPER INSURANCE COVERAGE.
YOU ACKNOWLEDGE AND AGREE THAT SENDWORK IS ONLY WILLING TO PROVIDE THE SENDWORK PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF SENDWORK’S LIABILITY. THEREFORE, YOU AGREE NOT TO HOLD SENDWORK, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOU OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SENDWORK PLATFORM, INCLUDING WITHOUT LIMITATION, ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND/OR DESTRUCTION OF PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY SENDWORK AND ANY IMPROPER DESTRUCTION OF USER INFORMATION. UNDER NO CIRCUMSTANCES WILL SENDWORK, ITS EMPLOYEES, OFFICERS, OR DIRECTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SENDWORK PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME.
SENDWORK DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY JOB PERFORMED VIA THE SENDWORK PLATFORM.
You hereby agree to indemnify, defend, and hold harmless SendWork, its directors, officers, employees, agents, licensors, and attorneys from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with your use or inability to use the SendWork Platform; your breach or violation of this Agreement; your violation of any law or the rights any other User or third party; and any User Generated Content or Feedback submitted by you or any other party using your Account. You shall not settle any claim in any matter concerning SendWork without our prior written consent. We reserve the right to defend and control any matter involving any issues that are subject to your indemnification, at our own expense.
Arbitration Agreement for Dispute Resolution
Informal Negotiations. In an effort to expedite resolution and control the cost of any dispute, difference, controversy, or claim arising out of or in any way relating to the SendWork Platform or this Agreement (“Dispute”) brought by you against us, you agree to first attempt to resolve the Dispute through negotiation and amicable settlement. You shall make good faith efforts to resolve the Dispute informally for a period of at least thirty (30) days before initiating any arbitration or other action. You shall begin informal negotiations for amicable settlement by sending written notice to: SendWork Inc., 382 NE 191st 42012, Miami, Florida, 33179 USA, Attention: Legal, and the thirty (30) day negotiation period shall begin on the date we receive your written notice.
Agreement to Binding Arbitration. If the Dispute is not satisfactorily resolved within thirty (30) days after an informal notice is received by us, then the parties agree that either party may submit the Dispute for a resolution to binding arbitration. Any election to arbitrate shall be final and binding on both parties. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration proceeding shall be commenced, conducted, and governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) available at the AAA website www.adr.org. The arbitrator shall be a practicing attorney or retired judge with at least fifteen years of total work experience as such and appointed by AAA.
Mode of Arbitration & Decision. The mode of arbitration shall be determined by the arbitrator. It can be in person, by phone or online. The arbitrator’s decision shall be binding on the parties. The arbitrator shall issue all decisions in writing and is not required to justify his decision (unless requested by a party). The arbitrator shall issue a reasoned award. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate, or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors, senior management, and to family members of a party who is an individual. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages.
Class Action and Jury Trial Waiver. This binding arbitration provision affects your ability to participate in class, collective, or representative actions. You agree to bring any dispute to arbitration on an individual basis only. To the full extent permitted by law, (i) no arbitration shall be joined with any other proceeding; (ii) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other parties.
Injunctive Relief and Out-of-Pocket Expenses. A party may apply to the arbitrator seeking injunctive relief until an arbitration award is rendered or the Dispute is otherwise resolved. A party also may, without waiving any other remedy, seek from a court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party pending the arbitrator’s appointment or decision on the merits of the Dispute. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees, and legal costs.
Place of Arbitration and Time Limit. Except where otherwise required by applicable AAA rules or applicable law, the arbitration will take place in Miami, Florida. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such dispute would be barred by the applicable statute of limitations.
Right to Opt Out of Arbitration and Trial Waiver. You may opt out of the Arbitration Agreement for Dispute Resolution by notifying us in writing within thirty (30) days from your registration for the Services, You shall send the written notice to SendWork Inc., 382 NE 191st 42012, Miami, Florida, 33179 USA. Attn: Legal. The notification must: (i) include your account name, mailing address, telephone number, email, address, and a clear statement that you do not wish to resolve Disputes through binding arbitration: and (ii) demonstrate compliance with the thirty (30) day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
Governing Law and Jurisdiction. This Agreement will be construed and interpreted in accordance with the laws of the State of Florida applicable to agreements made and to be entirely performed within the State of Florida, without regard to conflict-of-law principles. A user who properly opts out of the Arbitration Agreement for Dispute Resolution and commences judicial proceedings that are excluded from the Arbitration Agreement for Dispute Resolution must be commenced or prosecuted in the state or federal courts located in Miami, Florida. User and SendWork both consent to venue and personal jurisdiction in Miami, Florida and waive all defenses of lack of personal jurisdiction and forum nonconveniens with respect to venue and jurisdiction in such state and federal courts.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. Nothing in this Agreement shall be deemed to constitute, create, give effect to, or otherwise recognize a partnership, joint venture or formal business entity of any kind or create a fiduciary or similar relationship between you and us. The rights and obligations of SendWork and Users shall be limited to those expressly set forth in this Agreement and neither you nor us will have any right, power, or authority to incur any liability or obligation on behalf of or to otherwise bind the other party.
Electronic Communications, Transactions, and Signatures
Visiting the Site, sending us emails, text messages, completing online forms and other communications made in connection with the SendWork Platform from your mobile device or computer to us may be considered electronic communications (“Electronic Communications”). In addition, agreements, notices, disclosures, and other communications we send to you electronically may constitute Electronic Communications, which are legally required to be made in writing. Electronic Communications are not guaranteed to be secure or confidential methods of communication. While we will take reasonable steps to make Electronic Communications as secure as possible against unauthorized access, you understand and agree that no security measures are perfect or impenetrable and no method of data transmission can be guaranteed against any interception or other types of misuse. You consent to receive Electronic Communications and you further agree that all Electronic Communications we provide to you via email, text, and on the Site, satisfy any legal requirement that such communication is in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SENDWORK PLATFORM. Your Account registration constitutes an acknowledgment that you are able to electronically receive, download, and print this Agreement. You hereby waive any rights or requirements under any statute, regulation, rule, ordinance, or other law in any jurisdiction that requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
Entire Agreement. This Agreement and any policies or statements posted or linked to the Site, or with respect to the Services constitute the entire agreement and understanding between you and us. Notwithstanding the foregoing, Providers and Clients may enter into any supplemental or other agreements that they deem appropriate. The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a supplemental or other agreement that purports to expand our obligations or restrict our rights herein.
No Waiver. Our failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
Severability. If any provision of this Agreement is found to be invalid, prohibited, unenforceable, or void, we will negotiate with you in good faith to agree upon a substitute provision that is valid, binding, and enforceable and is as nearly as possible consistent with the intentions underlying the original provision. If an agreement upon such substitute provision cannot be reached, the original provision will be stricken. If the remainder of this Agreement is not materially affected by such declaration or finding and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by law.
Assignment. Assignment of this Agreement to another without our written consent is prohibited; except that we may assign, delegate, or transfer all or any part of its rights or obligations pursuant to this Agreement without your consent or approval. Any assignment in violation of this section shall be null and void.
Successors and Assigns. This Agreement will inure to our benefit and the benefit of our successors and assigns.
No Strict Construction. You agree this Agreement will not be construed against us by virtue of having drafted it. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against either you or us.
If you have any questions, comments, or want to report a violation regarding this Agreement, please contact us by U.S. mail at SendWork Inc., 382 NE 191st 42012, Miami, Florida, 33179.
Copyright © 2019 SendWork Inc. All Rights Reserved