Effective Date: January 1, 2020
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND TAKL HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 30 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST TAKL TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A PROVIDER, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 31.
MATERIAL TERMS AND NOTICES
- The Takl Platform connects you to other Users. You are neither an employee nor subcontractor of Takl;
- The use of the Takl Platform may be subject to separate third-party terms of service and fees, including, without limitation, such terms of service and fees imposed by your mobile network operator (the “Carrier”), including fees charged for data usage and overage, which are your sole responsibility;
- The Takl Platform is provided “as is” without warranties of any kind, and Takl’s liability to you is limited regarding the performance of Services;
- Takl provides Users the Takl Guarantee (Section 6) to ensure your satisfaction with your Platform experience;
- Access to certain features of the Takl Platform may require access to information about the location of your device, such as GPS coordinates;
- We may, without further notice or warning and in our discretion, access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users (as defined in Section 2) that occur through the Takl Platform for our business purposes, including to provide and improve customer service and the Takl Platform, fraud prevention, and to identify violations of this Agreement;
- You agree not to circumvent the Takl Platform by soliciting, scheduling and/or paying for Services and/or Additional Services outside the Platform;
- You agree to and acknowledge the “Notice Regarding Apple” in Section 39 below.
2. Takl Platform Connects Users
For purposes of this Agreement, the services provided by Providers to their Customers that are scheduled through the Takl Platform shall be referred to as the "Services.” Services specifically do not comprise “Excluded Services” (particular jobs deemed ineligible for scheduling or performing through the Takl Platform due to applicable licensing/permitting regulations and other similar requirements). Takl reserves the right to alter, modify and remove Service requests.
Unless otherwise disclosed, Providers are deemed to be unlicensed. Please note that in certain markets Provider may be required to have a license to perform certain Services that will exceed a monetary threshold. For example, regulations applicable in certain markets require a license for work that will total more than $500.00. Accordingly, Customers must determine for themselves whether a Provider is qualified to perform the requested Service. Customers should consult their state or local requirements to determine whether certain Services are required to be performed by a licensed professional.
Services ordered through the Takl platform may include delivery, installation, and/or assembly of furniture or other items obtained from a third party (“Merchandise”). Takl does not provide and is not responsible for Merchandise, and does not itself provide the Services.
ANY DECISION BY USERS TO OFFER OR ACCEPT SERVICES THROUGH THE TAKL PLATFORM IS A DECISION MADE IN SUCH USER'S SOLE DISCRETION. IT IS ENTIRELY UP TO THE CUSTOMER TO EVALUATE THE PROVIDER AND THE PROVIDER’S QUALIFICATIONS, AND UP TO THE PROVIDER TO EVALUATE THE JOB ORDERED. EACH SERVICE PROVIDED BY A PROVIDER TO A CUSTOMER SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN THAT PROVIDER AND CUSTOMER. PROVIDERS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR SUBCONTRACTORS OF TAKL. TAKL MAKES NO REPRESENTATION AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OF USERS, NOR DOES IT HAVE CONTROL OVER OR MAKE REPRESENTATIONS REGARDING THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER RELATING TO ANY SERVICES. TAKL DOES NOT HAVE CONTROL OVER THE QUALITY, TIMING OR LEGALITY OF SERVICES DELIVERED BY PROVIDERS. TAKL HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICES PROVIDED TO CUSTOMERS BY PROVIDERS, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANT OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE. EXCEPT AS OTHERWISE SET FORTH HEREIN, TAKL IS NOT AFFILIATED WITH, ENDORSED OR SPONSORED BY ANY PROVIDER.
3. Provider Background and Identity Check Process
Unless otherwise disclosed, Takl checks the backgrounds of each Provider using third-party background check services that include, but are not limited to, a sex offenders registry check; county, state, federal and national criminal records check; and domestic and international terrorist watchlist check. Takl also requires each Provider to submit to Takl a government-issued photo ID and a profile picture. Providers hereby give consent to Takl to conduct background checks as often as required in compliance with applicable law, including without limitation the Fair Credit Reporting Act. Although Takl performs background and identity checks on each Provider, Takl cannot confirm that each Provider is who they claim to be, and therefore, Takl cannot and does not assume any responsibility for the accuracy or reliability of the identity or background check information or any information provided through the Service. Takl cannot and does not guarantee that a Provider’s profile and background check information are current and up to date.
YOU ACKNOWLEDGE AND AGREE THAT TAKL IS NOT LIABLE FOR DAMAGE THAT MIGHT ARISE OUT OF THE SERVICES. TAKL IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING PROVIDERS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY SERVICES. Each User should exercise caution and common sense to protect their personal safety and property, just as you would when interacting with any person with whom you do not know. Takl’s sole liability with respect to the Services performed by Providers is as set forth in the Takl Guarantee described in Section 6.
4. Job Fees for Services and Additional Services; Excluded Services
a. Job Fee. Customers shall be charged pursuant to the rates quoted via the Takl Platform at the time the Service is scheduled (or prior to acceptance of a Counter-Bid or Additional Service), which shall be based on either: (i) the stated parameters of the Services and the location where such Services are to be performed; or (ii) a Counter-Bid price proposed directly from a Provider (the "Job Fee”). If applicable, the Job Fee shall include a variable fee for additional mileage traveled beyond a minimum set distance to complete delivery, courier, and moving-related Services. To determine such mileage fee, we use the Google Maps service to pre-calculate the distance between the Customer-provided addresses for pick-up and delivery, which may differ from the actual mileage driven by a Provider to complete a Service. Takl has the authority and reserves the right to determine and modify pricing by posting revised applicable Job Fees to your market though the App or by applying advertised sales or promotional discounts to the posted Job Fees, which will be disclosed to you prior to your submission as a Customer or acceptance as a Provider of a Service request. You are responsible for reviewing the applicable Job Fee prior to the submission or acceptance of a Service. As a Customer, you shall be responsible for all incurred Job Fees charged under your User account regardless of your awareness of such Job Fees or the amounts thereof. Similarly, as a Provider, you agree that the Job Fees for the Services that you perform shall be the amount disclosed to you prior to your acceptance of a Service regardless of your awareness of such Job Fees or the amount thereof.
c. Excluded Services. Users hereby agree not to schedule or perform any of the following as Services or Additional Services through the Takl Platform (collectively, the "Excluded Services"):
• Services that require a permit, including, but not limited to, remodeling, plumbing and electrical projects;
• Services that requires a license or certificate;
• Services that are professional services, including, but not limited to, services performed by lawyers, actuaries, accountants, architects, engineers, health professionals, medical professionals, financial advisers, management consultants, or investment advisors;
• Services related to childcare (e.g., babysitting), eldercare or lifeguarding services;
• Services that are performed more than 10 feet above the ground;
• Services that make the User unsafe or uncomfortable;
• Services that involve the handling of weapons, explosives or hazardous materials;
• Services that involve the transportation of and ridesharing among our Users in any type of motor vehicle, aircraft or water craft; or
• Any Service that is illegal or criminal in nature in the state or locality in which it is posted or takes place.
Users of the Takl Platform contract for the Services directly with other Users. Except as set forth in Section 33 below, Takl is not a party to any contracts for the Services. The Takl Platform facilitates these contracts by supplying a medium through which Customers can connect with Providers, schedule the Services, and make payments for the Services directly from the Customer to the Provider. Notwithstanding the foregoing, Customers may not circumvent the Takl Platform by using the Takl Platform to connect with Providers and then engage those Providers for Services outside of the Takl Platform.
a. Payment Processing Service. To facilitate payment for the Services, each User is required to register a credit, debit or prepaid card and each Provider is required to register using the Provider's bank account details or debit card information. You authorize Takl and the payment processing service retained by us (currently, Stripe) to facilitate the transaction of the Services and the payment remittance of all applicable charges and fees between you and other Users and between you and us. All payments transacted through Stripe shall be subject to the Stripe Connected Account Agreement, located at https://stripe.com/connect/account-terms, which includes the Stripe Terms of Service, located at https://stripe.com/us/terms (collectively, the "Stripe Services Agreement"). By agreeing to this Agreement, you agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time. As a condition of Takl facilitating payment processing services through Stripe, you agree to provide Takl accurate and complete information about you and, if applicable, your business, and you authorize Takl to share it and transaction information related to your use of the payment processing services provided by Stripe.
b. Customer Payments. As a Customer, we will charge your credit, debit or prepaid card according to the amount of all Services and Additional Services, if any, you scheduled through the Takl Platform, which amount will include: (i) the Job Fee applicable to the Services or Additional Services that were provided to you by your Provider; (ii) any out of pocket expenses that were published in connection with the Services (e.g. disposal fees); (iii) any out of pocket expenses for materials, if any, agreed to by and between you and your Provider through the Takl Platform; (iv) any tip or gratuity you elect to give to your Provider; and (v) a platform fee (a/k/a Service Fee) of up to nine percent (9%), which is used, in part, to offset the expense of providing you the Takl Guarantee set forth in Section 6. You hereby authorize us to charge the payment method on file in your account for such amounts upon the earlier of your verification of the completion of the scheduled Services or as soon as two (2) hours after a Service is completed, if there is no filed complaint with respect to such Service or if such complaint has been otherwise resolved as determined by Takl in its sole discretion. We retain the right, in our sole discretion, to seek authorization of your selected payment method to verify the payment method, ensure that all fees related to your order will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
Except for the Takl Guarantee, no refunds or credits will be provided once the Customer's selected payment method has been charged or Voucher has been used. While we will use commercially reasonable efforts to protect all payment method information and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. The Job Fee quoted is exclusive of taxes. Takl is not responsible or liable for any taxes incurred in connection with the Service excluding taxes on Takl's income. Customers will be liable for all transaction taxes on the Service(s) provided (other than taxes based on Takl's income).
c. Provider Payments. As a Provider, upon your satisfactory performance of a Service and any Additional Services for the Customers as an self-employed service provider through the Takl Platform, and upon the Customer’s payment for such Services, you will receive the following: (i) the applicable Job Fee for the Service and any Additional Services (net of the applicable Use Fee, as discussed below); (ii) any out-of-pocket expenses that were published in connection with a Service, including disposal fees that may be subject to modification by a Provider in his or her sole discretion; (iii) any out of pocket expenses for materials and related delivery fee, if any, as agreed to by you and the Customer through the Takl Platform; and (iv) any tip or gratuity provided to you by the Customer (collectively, the "Provider Payment"), which will be communicated to you through the Site. Takl will process all Provider Payments due to you through its third-party payments processor. You acknowledge and agree the Provider Payment shall not include any interest and will be net of any amounts that we are required to withhold by law. You expressly authorize Takl to pre-set the prices on your behalf for all Job Fees that apply to the provision of Services that you provide through the Takl Platform.
Notwithstanding the above, Providers may request an adjustment of their applicable Job Fees upon written notice to the attention of Takl’s General Counsel. Nothing set forth herein shall prohibit or otherwise restrict Providers from negotiating Additional Services with a Customer. Takl reserves the right to withhold all or a portion of Job Fees if it believes that you have attempted to defraud or abuse Takl or Takl's payment systems.
i. Use Fee. As a Provider, in exchange for permitting you to offer your services through the Takl Platform and utilize the ancillary services and benefits thereof, you agree to pay Takl (and permit Takl to retain) a fee based on a percentage of the Job Fee on each transaction in which you provide Services and, if any, Additional Services (the "Use Fee"). The amount of the applicable Use Fee will be determined by the category and market location of the job and will be communicated to you via your Provider Dashboard. Takl reserves the right to change the Use Fee at any time in Takl's sole and absolute discretion. Continued use of the Takl Platform after any such change in the Use Fee calculation shall constitute your consent to such change.
d. Promotions. Takl, at its sole discretion, may make available promotions with different features to any of our Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Takl. You are not required to participate in promotions. BY PARTICIPATING IN ANY PROMOTIONAL ACTIVITY VIA THE TAKL PLATFORM, YOU ARE AGREEING TO ANY ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO THE PROMOTIONAL ACTIVITY, including the following:
iii. Takl Sharing Program - Royalties. For the Takl Sharing Program (akaRoyalties),Takl will assign a Promo Code (“Takl Sharing Promo Code”) to you via the App or email for distribution at your discretion to your friends, family and other third parties for use on their first Service (each a “Promo User”). Except as otherwise set forth in this subsection, all of the terms and conditions for Takl Promo Codes apply to the Takl Sharing Program. If a Promo User uses your assigned Takl Sharing Promo Code on a Service that is completed via the Takl Platform within the applicable time period (the “Promo Period”), then you will be eligible for a credit or payment as described in the App and Website at the time the Takl Sharing Promo Code is redeemed. A Takl Sharing Promo Code is validly redeemed when the Service it was applied to has been completed and paid for in full through the Takl Platform. The amount and conditions of the credit or payment shall be determined by Takl and communicated to you in writing through the App, the Website or via email and are subject to change, without notice, at Takl’s sole discretion. Unless otherwise communicated to you, all payments will be made via check mailed to the address associated with your User account within ninety (90) days from the earlier of : (i) the date your Royalties balance exceeds $50.00 or (ii) the cancellation of your User account or termination of this program. Your failure to cash a Royalties check within 180 days of issuance by Takl, or your failure to provide Takl with your taxpayer identification number (TIN) within thirty (30) days of Takl’s request thereof, will result in your Royalties payments being converted to Takl Rewards. We maintain sole discretion to prohibit your participation in the Takl Sharing Program in the future, for any or no reason. Further, by using the Takl Sharing Program, you agree to abide by all current material-connection disclosure laws issued by the Federal Trade Commission and/or other governing authority.
iv. Takl Rewards Program. Takl may allow registered Users to participate in the Takl Rewards program through the Website and App, which is designed to provide certain benefits to Users that schedule and successfully complete Services and/or share their Takl Sharing Promo Code. Please refer to the Takl Rewards Terms and Conditions for more information about the terms, conditions and policies that apply to your participation and use of the Takl Rewards program. Exercising opt-out rights will not prohibit Users from participating in the Takl Rewards Program.
e. Instant Payout. Takl, at its sole discretion, may present Providers with the opportunity to elect to receive their Provider Payments through Takl’s Instant Payout feature. If you enable the Instant Payout feature in your Provider Dashboard, you acknowledge that you will be charged a fee for this Instant Payout service as described by Takl prior to confirmation. You understand that (i) your financial institution may not support Instant Payout, (ii) Takl and Stripe make no guarantee concerning how quickly Instant Payout payments will settle with your account, and (iii) not all payments through the Takl Platform are eligible for Instant Payout.
THE RELEASED PARTIES ARE NOT RESPONSIBLE FOR: (a) ANY INCORRECT OR INACCURATE INFORMATION, WHETHER CAUSED BY ENTRANTS, PRINTING ERRORS OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR USED IN THE PROMOTION; (b) TECHNICAL FAILURES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO MALFUNCTIONS, INTERRUPTIONS, OR DISCONNECTIONS IN PHONE LINES OR NETWORK HARDWARE OR SOFTWARE; (c) UNAUTHORIZED HUMAN INTERVENTION IN ANY PART OF THE ENTRY PROCESS OR THE PROMOTIONAL ACTIVITY; (d) TECHNICAL OR HUMAN ERROR THAT MAY OCCUR IN THE ADMINISTRATION OF THE PROMOTIONAL ACTIVITY OR THE PROCESSING OF ENTRIES; OR (e) ANY INJURY OR DAMAGE TO PERSONS OR PROPERTY THAT MAY BE CAUSED, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, FROM YOUR (OR ANY OTHER ENTRANT'S) PARTICIPATION IN THE PROMOTIONAL ACTIVITY OR RECEIPT OR USE OR MISUSE OF ANY PRIZE.
6. Takl Guarantee
Our Takl Guarantee is that the Service you order and pay for will be performed as described in the description of the Service when you ordered it. If you have ordered and paid for a Service but you believe the Service was not performed in accordance with the Takl Guarantee you must report the issue within twenty-four (24) hours of the Service appointment’s completion to our Support Center at email@example.com and respond to all follow up questions requested of you from the Support Center, at which point you may be eligible for the Takl Guarantee Remedies. The "Takl Guarantee Remedies" are as follows: if we determine that a Service does not meet the Takl Guarantee we will, in our sole discretion, either refund (in part or in full) the payment you actually made for such Service, or have the applicable Service re-performed. If the Service is re-performed but we determine the re-performance still does not meet the Takl Guarantee, we will refund the payment actually made by the Customer for such Service. The amount of the Takl Guarantee is limited to any payment you made for the Service. The Takl Guarantee does not apply to any other cost, liability, damage, injury, or claim arising from or in connection with the Services. To be clear, the Takl Guarantee does not apply to any payments made for Services not scheduled and paid for through the Takl Platform. THIS SECTION 6 STATES TAKL'S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES.
Takl reserves the right in its sole discretion to eliminate the Takl Guarantee altogether or to modify its terms at any time, effective with or without notice and without any liability to Takl, although Takl will endeavor to post notification of any material changes.
7. Service Cancellation
Takl's cancellation policy for specific Services is as follows:
a. Cancellation by Customer. As a Customer, you may cancel your scheduled Service appointments through the App at any time, subject to the following:
i. Services Booked 24 Hours in Advance
• If you cancel more than 24 hours before a scheduled Service appointment, there is no cancellation fee.
• If you cancel between 2-24 hours before a scheduled Service appointment, you may be charged a $10.00 cancellation fee.
• If you cancel less than 2 hours before a Service appointment, you may be charged a $50.00 cancelation fee.
ii. Services Booked Less 24 Hours in Advance
• For Services that were booked between two to twenty-four (2-24) hours before the scheduled Service appointment, you may be charged a $10 cancellation fee if you cancel less than two (2) hours before a Service appointment.
• For Services that were booked less than two (2) hours before the scheduled Service appointment, including Services scheduled as "Now" appointments, you may be subject to a $10 cancellation fee if you fail to cancel such appointment within five (5) minutes after if you booked your job.
b. Cancellation by Provider. As a Provider, although you may cancel your scheduled Service appointments through the App if necessary, please understand that your cancellations are serious matters and may result in the suspension or deactivation of your Provider Account. If you are more than fifteen (15) minutes late for a scheduled appointment (note: the scheduled time for a “Now” appointment is one (1) hour from the time you are selected by your Customer) or fail to complete a scheduled Service, you shall be deemed to have cancelled such appointment. When you cancel a scheduled Service appointment, the Takl Platform generally notifies your Customer to resubmit the request for Service. Takl cannot guarantee that a cancelled Service appointment will be selected by another Provider and rescheduled or that the Service request will be completed. Thus, your cancellation or failure to timely show up to perform a scheduled appointment could negatively impact your Customer and the Takl Platform. As a result, such conduct may adversely impact your Provider rating. PLEASE BE ADVISED THAT YOUR CANCELLATION OF (A) ANY “NOW” APPOINTMENTS, (B) ANY SCHEDULED APPOINTMENTS WITH LESS THAN TWENTY-FOUR (24) HOURS NOTICE, OR (C) TWO OR MORE SCHEDULED APPOINTMENTS WITHIN A THIRTY (30)-DAY PERIOD IS A VIOLATION OF THE TERMS OF THIS AGREEMENT, WHICH MAY RESULT IN THE SUSPENSION OR DEACTIVATION OF YOUR PROVIDER ACCOUNT.
8. Provider Access Fee
As a Provider, you are required to pay a monthly access fee during any calendar month in which you complete a Service. The access fee shall be $2.99 per month (the "Access Fee"). You instruct and authorize Takl to deduct the Access Fee from the Job Fee of the first job(s) you complete in a calendar month. You acknowledge that Takl reserves the right, at any time, to modify its Access Fees and billing methods.
To help maintain the quality of the Takl Platform, Users (both Providers and Customers) will have the opportunity to rate each other after the completion of Services. If you rate your Provider or Customer with less than 3 stars, such User will be excluded from your future Service requests. Customers will see Provider ratings before selecting a Provider for a job so each rating a Customer gives can have an impact on that Provider's future on the Takl Platform. In addition, Customers with a low star rating may not have their requests accepted.
We may, without further notice or warning and in our discretion, monitor or record telephone conversations that we have with you or anyone acting on your behalf for quality control and training purposes or to protect our rights. You agree to Takl’s use of a service provider to mask your telephone number with a number provided by Takl when you call or exchange text (SMS) messages with another User. Takl and its service provider reserve the right to access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users that occur through the Takl Platform for our business purposes, including to provide and improve customer service and the Takl Platform, fraud prevention, and to identify violations of this Agreement. You agree to the use of masked numbers described above as well as Takl’s use and disclosure of the related data for legitimate business purposes.
11. Location Coordinates
To schedule and accept Services, you must possess an iOS or Android smartphone capable of accessing the Takl Platform (the "Mobile Device"). As a Provider, you hereby acknowledge and consent to Takl's collection of the latitude and longitude location ("Location Coordinates") of your Mobile Device so that we can provide our services to you and the Customers. For example, we may collect Location Coordinates when you select "Start Navigation to Site" or equivalent on the App for the purpose of providing support in case you and the Customer cannot find each other and ending upon your notification to the Customer and Takl that you arrived at the Service location by selecting "I'm Here!" or the equivalent on the App (the "Tracking Period"). In addition, while in Provider mode, Takl collects the Location Coordinates of the Mobile Device on which the Takl Platform is installed for other purposes, including for the purpose of referring Services to you from potential Customers in your vicinity, protecting the safety of Customers and Providers, and for legal purposes (such as to enforce our agreements). Takl does not collect or use Location Coordinates data for the purpose of controlling or monitoring the manner and means by which you provide the Services contemplated by this Agreement, or the frequency with which you use the Takl Platform to book Services. By executing this Agreement, you agree to the use and disclosure of Location Coordinates information as described above.
12. Accessing the Takl Platform and Account Security
We reserve the right to withdraw or amend the Takl Platform, and any service we provide on the Takl Platform in our sole discretion without notice. We will not be liable if for any reason that all or any part of the Takl Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Takl Platform, or the entire Takl Platform, to Users for any reason or no reason.
You are responsible for:
• Making all arrangements necessary for you to have access to the Takl Platform.
• Ensuring that all persons who access the Takl Platform through your account are aware of this Agreement and comply with the terms set forth herein.
If you choose, or are provided with, a User name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Takl Platform or portions of it using your User name, password or other security information, including Third-Party Site Password(s). You agree to notify us immediately of any suspected unauthorized access to or use of your User name or password or any other breach of security. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any User name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement. Takl may, from time to time, access your account to make certain changes that you request or remove prohibited information from the Platform.
THE SERVICE IS ONLY A VENUE FOR CONNECTING USERS. EXCEPT AS OTHERWISE SET FORTH HEREIN, TAKL IS NOT AFFILIATED WITH ANY CARRIER, PROVIDER, OR THIRD-PARTY SERVICE. ANY DISPUTE YOU HAVE WITH ANY CARRIER, PROVIDER, OR THIRD-PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE TAKL (AND OUR OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
14. Limited License; Intellectual Property Rights
You may not modify, alter, reproduce, or distribute the Takl Platform in part or entirety. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Takl Platform. You must not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Takl Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third-Party Service), nor attempt to disable or circumvent any security or other technological measure designed to protect the Takl Platform or any content available through the Takl Platform.
The Takl Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Takl, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You must not:
• Modify copies of any materials from the Takl Platform.
• Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
• Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Takl Platform.
Except as permitted herein, you must not access or use for any commercial purposes any part of the Takl Platform or any services or materials available through the Takl Platform.
15. Prohibited Uses
You may use the Takl Platform only for lawful purposes and in accordance with this Agreement. You agree not to use the Takl Platform:
• In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
• To impersonate or attempt to impersonate Takl, a Takl employee, another User or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Takl Platform, or which, as determined by us, may harm Takl or Users of the Takl Platform or expose them to liability.
• To solicit, advertise for, or contact Users for employment, contracting, or other purposes unrelated to the Services facilitated through the Takl Platform without the express written consent of Takl.
Additionally, you agree not to:
• Use the Takl Platform in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Takl Platform, including their ability to engage in real-time activities through the Takl Platform.
• Use any robot, spider or other automatic device, process or means to access the Takl Platform for any purpose, including monitoring or copying any of the material on the Takl Platform.
• Use any manual process to monitor or copy any of the material on the Takl Platform or for any other unauthorized purpose without our prior written consent.
• Use any device, software or routine that interferes with the proper working of the Takl Platform.
• Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Takl Platform, the servers on which the Takl Platform is stored, or any server, computer or database connected to the Takl Platform.
• Attack the Takl Platform via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Takl Platform.
• Defame, harass, abuse, stalk, threaten, or otherwise violate the legal rights of others, including but not limited to Takl employees and Platform Users.
16. Digital Millennium Copyright Act
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Takl Platform, you may contact our Designated Agent at Takl, Inc., Attn: Copyright Compliance Team, 1005 Flagpole Court, Brentwood, TN 37027 or firstname.lastname@example.org.
Any notice alleging that materials hosted by or distributed through the Takl Platform infringe intellectual property rights must include the following information:
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
• A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
• A description of the material that you claim is infringing and where it is located on the Takl Platform;
• Your address, telephone number, and email address;
• A statement by you that you have a good faith belief that the use of those materials on the Takl Platform is not authorized by the copyright owner, its agent, or the law; and
• A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
17. User Contributions
The Takl Platform may contain profiles and other interactive features (collectively, "Interactive Services") that allow Users to post, submit, publish, display or transmit to other Users (hereinafter, "Post") content, photographs, images, or other related materials (collectively, "User Contributions") on or through the Takl Platform, including User-supplied profile pictures, bio lines, and job/service-related photos.
You represent and warrant that:
• You own or control all rights in and to the User Contributions and have the right to grant the licenses granted above to us and our licensees, successors and assigns and other Users.
• All of your User Contributions do and will comply with this Agreement.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Takl, are fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other User of the Takl Platform.
In exchange for the right to use the Takl Platform, Users who post their User Contributions hereby irrevocably grant to Takl the following rights in connection with the display, distribution, transmission, or broadcasting on any media, including the Internet, of their User Contributions in connection with the Takl Platform:
• The right to use User Contributions in the advertising, marketing, and/or publicizing of the Takl Platform to perform and improve upon the Takl Platform; or
• The right to exercise all copyright, publicity rights, and any other rights therein.
Such right applies in any media now known or not currently known, and such right is hereby deemed to be perpetual, non-exclusive, unrestricted, royalty-free, worldwide, irrevocable, transferable, and sub-licensable (through multiple tiers). User hereby releases Takl from (and shall not bring any) proceeding, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon the use of your User Contributions.
18. Monitoring and Enforcement
We have the right to:
• Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Takl Platform.
• Terminate or suspend your access to all or part of the Takl Platform for any or no reason, including without limitation, any violation of this Agreement.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Takl Platform. YOU WAIVE AND HOLD HARMLESS TAKL AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
19. User Disputes
We understand that occasionally disputes may arise between or among our Users. In the event a dispute initiated by either a Provider or a Customer cannot be resolved independently, you hereby agree, at Takl’s request, to participate with good faith, to the extent you are reasonably able to do so, in a neutral resolution, mediation, or arbitration process conducted by Takl or a neutral third-party mediator or arbitrator selected by Takl. Notwithstanding the foregoing, you acknowledge and agree that Takl is under no obligation to become involved in or impose resolution in any dispute between or among Users or any third party.
20. Provider Provisions
a. Insurance. As a Provider, you acknowledge and agree that it is your responsibility to maintain in full force and effect adequate workers' compensation (or, if permitted by law, occupational accident insurance), unemployment, liability, and other forms of insurance with policy limits sufficient to protect and indemnify Takl and its affiliates, and each of their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from the conduct, acts, or omissions of you or your assistants, agents, contractors, servants, or employees.
b. Provider Assistants. Before any Services are performed by any assistants, helpers, subcontractors or other personnel engaged by a Provider, the Provider shall require any such individuals to become a registered, approved Provider on the Takl Platform pursuant to Takl policies as described herein. Providers that utilize non-registered, non-approved personnel to assist with a Service could have their permission to access the Takl Platform revoked. Each Provider assumes full and sole responsibility for the payment of all compensation, benefits and expenses of helpers, assistants, subcontractors and/or other personnel, if any, and for all required and applicable state and federal income tax withholdings as to the Provider and all persons engaged by the Provider in the performance of the Services.
c. Equipment. As a Provider, you are solely responsible for any costs or expenses incurred by you in connection with the performance of the Services, and in no event shall Takl reimburse, or be required to reimburse, you for any tools, materials, costs or expenses used in connection with the Services. You shall furnish and maintain, at your own expense, the tools, equipment, supplies, and other materials used to perform the Services. You, at your sole discretion, shall determine what equipment, supplies, and materials are necessary to perform the Services, and where, when, and at what cost, to purchase or maintain any necessary equipment, supplies, tools, and materials. At your request, Takl may offer to you certain equipment, supplies, and materials for purchase. You are not required to purchase any equipment, tools, supplies, or materials from Takl at any time.
d. Representations. By providing Services as a Provider on the Takl Platform, you represent, warrant, and agree that: (i) you are solely responsible for obtaining the necessary licenses and/or certifications for performance of the Services or Additional Services; (ii) you will not transfer or sell your User account, password and/or identification to any other party; (iii) you will be solely responsible for any and all liability that results from or is alleged as a result of your provision of Services, including, but not limited to personal injuries, death and property damages; (iv) you will comply with all applicable laws, rules and regulations while providing Services, and you will be solely responsible for any violations of such provisions; (v) you will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you; (vi) you will not attempt to defraud Takl or a Customer in connection with your provision of Services or Additional Services; and (vii) you will not demand that a Customer pay in cash, or use a credit card reader or other off-platform payment service, to accept payment for Services or engage in any other activity in a manner that is inconsistent with your obligations under this Agreement.
e. Reimbursement of Resolution Costs. Notwithstanding anything set forth herein to the contrary, you further represent, warrant, and agree (i) to pay all reasonable out-of-pocket expenses incurred by Takl in connection with the resolution of any property damage or other claims resulting from a Service you performed for a Customer, and (ii) that Takl shall have the right to suspend your Provider account until it has received payment in full for all such reimbursable amounts.
f. Non-Circumvention. Within six (6) months after the last time Provider provides Services to a Customer as arranged though the Takl Platform, Provider agrees not to solicit or provide any Services to the same Customer other than as arranged through the Takl Platform. Provider shall be liable for the fees set forth in Section 4 for all services provided to Customers in breach of the previous sentence, in addition to all other remedies provided by this Agreement and applicable law, including injunctive relief. Provider agrees to indemnify Takl from any attorneys’ fees and costs it incurs in collecting its fees from a Provider that breaches this non-circumvention provision.
21. Third-Party Services, Third-Party Fees, and Linked Websites
a. Access to Third-Party Services. The Takl Platform may provide you with access to third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services, or charitable donation programs (collectively, "Third-Party Services"), and may enable you to export information or content, including your or other Users’ User Contributions, to Third-Party Services such as Twitter or Facebook, through a feature of the Takl Platform. By using one of these features, you agree that Takl may transfer that information or User Contribution to the applicable Third-Party Service. Takl does not have or maintain any control over Third-Party Services and is not and cannot be responsible for their content, operation or use. By linking or otherwise displaying information from or providing access to any Third-Party Services, Takl does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by those Third-Party Services.
b. Charitable Donation Programs. From time to time, Takl may authorize one or more charitable organizations (each a “Charity”) to post a fundraising campaign ("Campaign") to the Takl Platform to accept monetary donations ("Donations") from Users wishing to contribute funds to the Campaign ("Donors"). For purposes hereof, the term "Charity" shall also be deemed to include any individual(s) designated as a beneficiary of a Campaign. You understand and acknowledge, however, that Takl is not a charity or a party to any agreement between a Charity and a Donor, or between any User and a Charity. We are not a broker, agent, financial institution, creditor or insurer for any User or Charity. Furthermore, we do not personally endorse any Campaign or Charity.
You agree that a certain minimum Donation amount may apply, and that all Donation payments are final and will not be refunded unless the Charity, in its sole discretion, agrees to issue a refund. You acknowledge that contributions to Campaigns may not be deductible under your jurisdiction’s applicable tax laws and regulations.
22. Third-Party Software
23. Terms and Termination
This Agreement is effective upon your creation of a User account, as amended by any modifications made pursuant to Section 1. You may discontinue your use of the Takl Platform or participation in the Services at any time, for any reason. We may suspend or deactivate your User account (either as a Provider and/or Customer), or revoke your permission to access the Takl Platform, at any time, for any reason, upon notice to you. We reserve the right to refuse access to the Takl Platform to any User for any reason not prohibited by law. Either party may terminate the Agreement for any reason upon written notice to the other party. The terms of this Agreement, and any subsequent modifications of this Agreement, shall remain in effect at all times after you or Takl terminate your participation or access to the Takl Platform or Services.
If Takl terminates or suspends a User account for any reason, the User is prohibited from registering a new account under their name or an alias.
24. Repeat Infringers
Takl will promptly terminate without notice the accounts of Users that are determined by Takl to be "Repeat Infringers" to the fullest extent permitted under applicable law. A Repeat Infringer is a User who has been notified of infringing activity or has had User Contributions (as defined in Section 17 above) removed from the Takl Platform at least twice.
25. Changes to the Takl Platform
We may update the content on this Takl Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Takl Platform may be out of date at any given time, and we are under no obligation to update such material.
26. Information About You and Your Visits to the Takl Platform
27. Confidential Information
a. Takl's Confidential Information. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Takl and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Takl in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Takl upon termination of this Agreement for any reason whatsoever. The term "Confidential Information" shall mean any and all of Takl's trade secrets, confidential and proprietary information and all other information and data of Takl 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 shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
b. Customer's Confidential Information. As a Provider, you understand that in performing the Services, you will receive certain private and/or confidential information regarding the Customer and will have access to their homes and personal belongings. Except upon order of government authority (e.g., court, administrative agency) having jurisdiction, or upon express written consent by the Customer, you agree that you shall not publish, disseminate or disclose, for your own benefit or the benefit of any third party, any confidential information regarding the Customer, including addresses, telephone numbers and/or financial information. You further agree not to engage in any activity which violates the privacy of any Customers, including, but not limited to, taking unauthorized photographs or making unauthorized audio or video recordings of Customers or their homes or their personal belongings; or publishing, disseminating or disclosing any such photographs or recordings. You acknowledge that your failure to comply with the foregoing shall constitute a material breach of this Agreement.
28. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Takl Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT (INCLUDING MOBILE DEVICES), COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE TAKL PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE TAKL PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY TAKL PLATFORM LINKED TO IT.
YOUR USE OF THE TAKL PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE TAKL PLATFORM IS AT YOUR OWN RISK. THE TAKL PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE TAKL PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER TAKL NOR ANY PERSON ASSOCIATED WITH TAKL MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE TAKL PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER TAKL NOR ANYONE ASSOCIATED WITH TAKL REPRESENTS OR WARRANTS THAT THE TAKL PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE TAKL PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE TAKL PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE TAKL PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TAKL HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
29. No Liability
IN NO EVENT WILL TAKL, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, OR CORPORATE PARTNERS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE TAKL PLATFORM, ANY TAKL PLATFORMS LINKED TO IT, ANY CONTENT ON THE TAKL PLATFORM OR SUCH OTHER TAKL PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE TAKL PLATFORM OR SUCH OTHER TAKL PLATFORMS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
You agree to defend, indemnify and hold harmless Takl, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of this Agreement or your use of the Takl Platform, including, but not limited to, any use of the Takl Platform's content, Services and products other than as expressly authorized in this Agreement or your use of any information obtained from the Takl Platform.
31. Dispute Resolution; Arbitration of Claims
Generally, in the interest of resolving disputes between you and Takl in the most expedient and cost-effective manner, YOU AND TAKL MUTUALLY AGREE THAT EVERY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND TAKL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
a. Exceptions. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
b. Arbitrator. Any arbitration between you and Takl will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting email@example.com.
c. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice"). Takl's address for Notice is: Takl, Inc., 1005 Flagpole Court, Brentwood, TN 37027, Attn: Legal Department. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice is received, you or Takl may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Takl must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Takl will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Takl in settlement of the dispute prior to the arbitrator's award; or (iii) one thousand US dollars ($1,000).
d. Fees. If you commence arbitration in accordance with this Agreement, Takl will reimburse you for your payment of the filing fee, unless your claim is for more than ten thousand US dollars ($10,000), in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Williamson County Tennessee, but if the claim is for ten thousand US dollars ($10,000) or less, you may choose whether the arbitration will be conducted: (i) solely based on documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Takl for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.
e. No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND TAKL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Takl agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permitted under applicable law.
f. Modifications to this Arbitration Provision. If Takl makes any future change to this arbitration provision, other than a change to Takl's address for Notice, you may reject the change by sending us written notice within thirty (30) days of the change to Takl's address for Notice, in which case your account with Takl will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
g. Enforceability. If any part of this section is found to be unenforceable, then the entirety of this section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in this Agreement will govern any action arising out of or related to this Agreement. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
h. Provider Opt-Out of Arbitration. For Providers, arbitration is not a mandatory condition of this Agreement with respect to any dispute or claims brought by Takl against a Provider, or for disputes or claims brought by a Provider against Takl that: (i) are based on an alleged employment relationship between Takl and a Provider; (ii) arise out of, or relate to, Takl’s actual deactivation or suspension of a Provider account or a threat by Takl to deactivate or suspend a Provider account; (iii) arise out of, or relate to, Takl’s actual termination of a Provider’s Agreement with Takl, or a threat by Takl to terminate a Provider’s Agreement; or (iv) arise out of, or relate to, Job Fees (as defined in this Agreement, including Takl’s Use Fee or tips, other than disputes relating to referral bonuses, other Takl promotions, or consumer-type disputes (the subset of Claims in subsections (i)-(iv) shall be collectively referred to as “Provider Claims”).
If you do not want to be subject to this Dispute Resolution provision with respect to Provider Claims, you may opt out by notifying the Company in writing of your decision, either by sending, within thirty (30) days of the date you receive this Agreement, (i) an electronic mail to firstname.lastname@example.org, stating clearly your name and intent to opt out of this Dispute Resolution provision or (ii) by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.), or by hand delivery to: Legal Department, Takl, Inc., 1005 Flagpole Court, Brentwood, TN 37027. To be effective, the letter under option (ii) must clearly indicate your intent to opt out of this Dispute Resolution Provision, and must be dated and signed. If hand-delivered, the signed letter must be received within thirty (30) days of your receipt of this Agreement. If sent by mail, the letter must be post-marked with a date less than thirty (30) days from the date you receive this Agreement. Should you choose not to opt out of this Dispute Resolution Provision within the thirty (30)-day period, you and Takl will be bound by the terms of this Dispute Resolution Provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution Provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution Provision.
32. Governing Law; Jurisdiction
Except as set forth in Section 31 entitled "Dispute Resolution; Arbitration of Claims,” this Agreement is governed and interpreted pursuant to the laws of the State of Tennessee, United States of America, notwithstanding any principles of conflict of law. For all disputes, not subject to arbitration under Section 31 hereof, you agree to submit to the personal jurisdiction and venue of the courts located within Williamson County, Tennessee, and waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
33. Waiver and Severability
No waiver by Takl of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Takl to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
34. Development and Testing
For purposes of developing and testing the Takl Platform, on occasion a Takl representative may schedule or perform Services on the Takl Platform within the Nashville market. On such occasions, the contract for such Service shall between Takl and such User and shall be governed by the applicable terms of this Agreement, including, but not limited to Section 31 above.
35. Entire Agreement
This Agreement may not be assigned or transferred by you without Takl's prior written consent. You agree that this Agreement and all incorporated agreements may be automatically assigned by Takl, in our sole discretion, in accordance with the "Notice" section of this Agreement.
37. No Agency
You and Takl are independent contractors, and no agency, partnership, joint venture, employer-employee, contractor-subcontractor, or franchisor-franchisee relationship is intended or created by this Agreement.
38. Comments and Concerns
All other feedback, comments, requests for technical support and other communications relating to the Takl Platform should be directed to: email@example.com.
39. Notice Regarding Apple
Except as explicitly stated otherwise, any notice to Takl shall be given by certified mail, postage prepaid and return receipt requested to:
1005 Flagpole Court
Brentwood, TN 37027
Such notices shall be deemed given three (3) business days after the date of mailing. Any notices to you shall be provided to you through the Takl Platform or given to you via the email address you provided to Takl during the registration process or as otherwise listed in your User or Provider account, and such notice shall be deemed given immediately upon sending. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Takl during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
Updated: January 10, 2020