These Terms of Service govern the use of the community platform offered by AlphaBrand, LLC (“Company” or “we” or “us”) at Company’s website (www.AlphaBrandcompany.com or wwww.alphaBrand.it the “Site”) or mobile applications, and constitutes a contract between you (the “User,” as more fully defined below) and us. The platform services provided by Company, the Site and mobile applications together are hereinafter collectively referred to as the “AlphaBrand Platform.”
- Your agreement that the AlphaBrand Platform is provided “as is” and without warranty (Section ____________).
- Your agreement that Company has no liability regarding the AlphaBrand Platform (Section _____________).
- Your acknowledgment and agreement that Company does not supervise, direct or control a master craftsman or the work in any manner (Section 1), and Company has no liability regarding the performance of Projects except as set forth in the AlphaBrand Guarantee (Section 13), which provides protection for Company’s Clients.
- Your consent to release Company from liability based on claims between Users (Section 2) and generally (_____________).
- Your agreement to indemnify Company from claims due to your use or inability to use the AlphaBrand Platform or content submitted from your account to the AlphaBrand Platform (Section 19).
- Your consent that you and Company have the right to compel arbitration (Section 20).
- Your consent that no claims can be adjudicated on a class basis (Section 20).
- AlphaBrand Platform Connects Master Craftsmen and Clients
The AlphaBrand Platform is a web-based communications platform which enables the connection between Clients and Master Craftsmen. “Clients” are individuals and/or businesses seeking to obtain services (“Services”) from Master Craftsmen and are therefore clients of Master Craftsmen. “Master Craftsmen” are individuals and/or businesses seeking to perform skilled Craftsmanship for Clients. Clients and Master Craftsmen together are hereinafter referred to, jointly and severally, as “Users.” If you agree on the terms of a Project with another User, you and such other User form a Service Agreement directly between all participating Users as set forth in more detail in Section 3 below. AlphaBrand, LLC is never a party to contract by and between or by and among Users.
COMPANY DOES NOT PERFORM TRADESWORK AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SKILLED TRADES WORK. COMPANY DOES NOT SUPERVISE, DIRECT OR CONTROL A MASTER CRAFTSMENS WORK OR THE TRADES IN ANY MANNER, WHICH MASTER CRAFTSMEN HEREBY ACKNOWLEDGES.
The AlphaBrand Platform only enables connections between Users for the fulfillment of Projects. Company is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Projects, or Master Craftsmen, Clients. Nor is the Company responsible for the integrity, responsibility, or qualifications, or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Projects requested and services provided by Users identified through the AlphaBrand Platform whether in public, private, or offline interactions.
- User Vetting
Users may be subject to an extensive vetting process before they can register for, and during their use of, the AlphaBrand Platform, including but not limited to a verification of identity and a comprehensive criminal background check at the Country, State and local level, using third party services as appropriate. Users hereby give consent to Company to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although Company may perform background checks of Users, as outlined above, Company does not represent or warrant that it can or will verify the identity of any User with any information other than that provided by the User. Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the AlphaBrand Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS OR LICENSEES, AS THE CASE MAY BE, IS OR ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE ALPHABRAND PLATFORM, AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS AND LICENSEES FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES, LICENSORS, AND LICENSEES WILL NOT, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE ALPHABRAND PLATFORM.
Company’s sole liability with respect to master Craftsmen and Users is as set forth in the AlphaBrand Guarantee described in Section 13.
- Contract Between Clients and Master Craftsmen
You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a project (“Project”) with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the AlphaBrand Platform, and any other contractual terms accepted by both the Client and the Master Craftsmen to the extent such terms do not conflict with the terms in this Section 3 and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Agreement, and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Master Craftsmen.
Where approved in advance by the Client, the Master craftsman is not obligated to personally perform the Services. Before any Services are performed by any assistants, helpers, subcontractors or other personnel engaged by the Master craftsman, the Master craftsman shall require any such individuals to become registered Master Craftsmen on the AlphaBrand Platform pursuant to Company policies as described on the AlphaBrand Platform. The Master Craftsman 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 Master craftsman, and all persons engaged by the Master craftsman in the performance of the Project services.
The Client shall pay for completed Project s and services through the PSP (as defined below) as indicated on the AlphaBrand Platform at the rates agreed to in the Service Agreement engagement terms. Each party agrees to comply with the AlphaBrand Best Practices Guide during the engagement, performance, and completion of a Project. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding between the parties.
- Billing and Payment
Users of the AlphaBrand Platform contract for Projects directly with other Users. Company will not be a party to any contracts for Projects or services. Payment for Project services through the AlphaBrand Platform is made directly from the Client to the Master craftsman, and is not paid by Company.
Although AlphaBrand is not a party to any contract between a User and a Master Craftsman, it will hold the funds to be applied in each Project and disburse them in accordance with the terms of the parties’ agreement. Users of the AlphaBrand Platform will be required to provide their credit card or bank account details to Company and the Payment Service Provider retained by Company (the “PSP”). Clients will be responsible for paying the invoice for each Project (the “Invoice”), which will include (i) the pricing terms of the Project agreed with and provided by a Master craftsman (“Project Payment”), (ii) any out of pocket expenses agreed with and submitted by a Master craftsman in connection with the Project, (iii) any tip or gratuity, if applicable, (iv) the service charge Company assesses for the AlphaBrand Platform (which shall be variable based on the Project Payment amount), and (v) the platform fee, which is used to offset Company’s cost of providing you the AlphaBrand Guarantee set forth in Section 13.
When Client receives confirmation through the AlphaBrand Platform or via email that a Project has been completed, Client automatically, by virtue of Client’s agreement to these Terms of Service, authorizes Company to provide Client’s payment details to the PSP for processing of Project Payment, out of pocket expenses owed to Master Craftsmen, and the service charge and platform fees owed to Company for the use of the AlphaBrand Platform. You may be charged a cancellation fee through the PSP if you book a Project, but cancel it before it is completed, as set forth in the Project pricing terms.
Company reserves the right, in its sole discretion (but shall not not have the obligation), upon request from Client or Master Craftsmen or upon notice of any potential fraud, unauthorized charges or other misuse of the AlphaBrand Platform, to (i) place on hold any Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
Project Payment and fees must be paid through the PSP as indicated on the AlphaBrand Platform. Clients may pay using a Gift Card (see Section 5).
Users of the AlphaBrand Platform will be liable for any taxes (including VAT, if applicable) required to be paid on the Project services provided under the Agreement (other than taxes on Company’s income),or as otherwise required by applicable law.
The AlphaBrand Platform is only a venue for connecting Users. Because Company is not involved in the actual contact between Users, or in the completion of any Project, in the event that you have a dispute with one or more Users, you release Company and its affiliates (and their respective officers, directors, agents, insurers, 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.
COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS ALPHABRAND PLATFORM. Company’s sole liability with respect to disputes between Users is as set forth in the AlphaBrand Guarantee described in Section 13
- Public Areas; Acceptable Use
The AlphaBrand Platform may contain profiles, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may use such community areas only to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the AlphaBrand Platform, you may not use the Platform to share your personal contact information with other Users.
Without limitation, while using the AlphaBrand Platform, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Company staff, or use information learned from the AlphaBrand Platform or during the performance of Projects to otherwise defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of any other User or Company staff outside of the AlphaBrand Platform.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
- Use the AlphaBrand Platform for any purpose, including, but not limited to posting or completing a Project, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose through the AlphaBrand Platform which are not relevant to the Project services offered through the AlphaBrand Platform.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
- Post the same Project repeatedly (“Spamming”). Spamming is strictly prohibited.
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the AlphaBrand Platform.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Company, without the prior written consent of Company.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the AlphaBrand Platform in any manner.
- Hack or interfere with the AlphaBrand Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the AlphaBrand Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Company.
- Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the AlphaBrand Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the AlphaBrand Platform as set forth herein.
- Use the AlphaBrand Platform to collect usernames and or/email addresses of Users by electronic or other means.
- Use the AlphaBrand Platform or the Project services in violation of the Best Practices Guide.
- Use the AlphaBrand Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
- Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the platform, including inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
- Register under different usernames or identities, after your account has been suspended or terminated or register under multiple usernames or identities.
- Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public, and that you will be publicly identified by your name or login identification when communicating in Public Areas. You also understand that Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
- Termination and Suspension
Company may terminate or suspend your right to use the AlphaBrand Platform in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.
If Company terminates or suspends your right to use the AlphaBrand Platform as a Client for a User Breach, you will not be entitled to a refund of any unused balance in your account, and you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to use the AlphaBrand Platform is terminated or suspended, this Agreement will remain enforceable against you.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the AlphaBrand Platform at its sole discretion. Except for refundable fees you have advanced to Company (if any), Company is not liable to you for any modification or discontinuance of all or any portion of the AlphaBrand Platform. Notwithstanding anything to contrary in this Section 8, Company has the right to restrict anyone from completing registration as a Master Craftsmen if Company believes such person may threaten the safety and integrity of the AlphaBrand Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the AlphaBrand Platform. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
- Account, Password, Security and Mobile Phone Use
You must register with Company and create an account to use the AlphaBrand Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Company for accessing the AlphaBrand Platform. You are solely and fully responsible for all activities that occur under or in connection with your password or account. Company has no control over the use of any User’s account, and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you are obligated to contact Company immediately.
By providing your mobile phone number and using the AlphaBrand Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts in order to perform and improve upon the AlphaBrand Platform. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving text messages from us by modifying your account settings on the Site or Company’s mobile application, or by emailing opt-out-texts@AlphaBrand.com. Under no circumstance shall Company have any liability to you under the Telephone Consumer Protection Act, 47 U.S.C., sec. 227 et seq., arising from Company’s use of your mobile telephone number as provided herein.
- Your Information and Likeness
“Your Information” is defined as any information and materials you provide to Company or other Users in connection with your registration for, and use of, the AlphaBrand Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to Company that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) 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); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The AlphaBrand Platform hosts User-Generated Content relating to reviews and ratings of specific Master Craftsmen (“Feedback”). Feedback is comprised of User opinions. In no circumstance does Feedback constitute the opinion of Company. The Company makes no representation or warranty that it has verified or approved Feedback. You agree that Company is not liable for any Feedback or other User-Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company does not investigate any remarks posted by Users for accuracy or reliability, but may do so if a User requests that Company do so. Each Client is solely responsible for conducting due diligence with respect to the qualifications of any specific Master craftsman.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the AlphaBrand Platform.
Each Master craftsman who provides to Company any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the AlphaBrand Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- Use any videotape, film, record or photograph that such Master Craftsmen provides to Company, and use, reproduce, modify, or creative derivatives of such Master Craftsmen picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”), in and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such Master Craftsmen in connection with the AlphaBrand Platform.
- Reproduce in all media any recordings of such Master Craftsmen’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the AlphaBrand Platform.
- Use, and permit to be used, such Master Craftsmen’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the AlphaBrand Platform in any media.
- Use, and permit to be used, such Master Craftsmen’s name and identity in connection with the AlphaBrand Platform.
Each Master craftsman hereby waives all rights and releases Company from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Master Craftsmen’s identity, likeness or voice in connection with the AlphaBrand Platform.
Each Master Craftsmen acknowledges that Company shall not owe any financial or other remuneration for using the recordings provided hereunder by such Master Craftsmen, either for initial or subsequent transmission or playback, and further acknowledges that Company is not responsible for any expense or liability incurred as a result of such Master Craftsmen’s recordings or participation in any recordings, including any loss of such recording data.
- Links to Other Websites
The AlphaBrand Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by Company of those sites or their content. They are provided as an information service, for reference and convenience, only. Company does not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the AlphaBrand Platform to such websites (including without limitation external websites that are framed by the AlphaBrand Platform as well as any advertisements displayed in connection therewith) does not mean that Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the AlphaBrand Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the AlphaBrand Platform; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the AlphaBrand Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the AlphaBrand Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the AlphaBrand Platform. You will have the ability to disable the connection between your account on the AlphaBrand Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the AlphaBrand Platform. At your request made via e-mail to privacy@AlphaBrand.com, Company will deactivate the connection between the AlphaBrand Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
- Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM PROJECTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM PROJECTS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, or control a Master craftsman’s work or Projects performed in any manner. Company does not set a Master craftsman’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a particular Project. Company does not provide any supervision to Users.
The AlphaBrand Platform is not an employment service, and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for, any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Project services.
You agree to indemnify, hold harmless and defend Company from any and all claims and liabilities that a Master craftsman was misclassified as an independent contractor or employee, including all liabilities arising from a judgment, finding, ruling, determination or other decision by a court, arbitrator, government agency or other adjudicatory body that the employment or contractor status of a Master craftsman was misclassified. Such indemnification shall extend to, but shall not be limited to, taxes, penalties, interest and attorney’s fees, as well as any claim that Company was an employer or joint employer of a Master Craftsmen, and/or any claims under any applicable employment-related laws, such as, without limitation, those relating to employment termination, employment discrimination, harassment or retaliation, as well as, without limitation, 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.
- Insurance Requirements
Master Craftsmen that are approved to use the platform agree to furnish to ALPHABRAND prior to being listed on the platform: (1) a Certificate of Insurance, naming ALPHABRAND LLC as an additional insured; (2) evidence of workmen’s compensation insurance as required by law, and (3) evidence of public liability and property damage coverage with limits of not less than $1,000,000.00 for each occurrence and $2,000,000,00 annual aggregate for Commercial General Liability, at least $1,000,000.00 for Automobile Liability, Commercial Umbrella of at Least $ 1,000,000.00 and Workers Compensation and Employers Liability of at least $500,000.00 for each accident for bodily injury by accident and $500,000.00 each employee for injury by disease.
- Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the AlphaBrand Platform is owned by Company, excluding User Generated Content that Company has the right to use, and excepting such material that has been identified as the property of third parties. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the AlphaBrand Platform without Company’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the AlphaBrand Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
- Copyright Complaints and Copyright Agent
Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the AlphaBrand Platform infringe upon your copyright or other intellectual property rights, please send the following information to Company’s Copyright Agent at:
Attorney Seth H. Salinger
53 Langley Road
Suite 270 Newton, Massachusetts 02459
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the AlphaBrand Platform where the material you claim is infringed is located. Include enough information to allow Company to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- 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.
- Confidential Information
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company 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 Company 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 Company upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company 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, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
- Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE ALPHABRAND 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. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE ALPHABRAND PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE ALPHABRAND PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE ALPHABRAND PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE ALPHABRAND PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. 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 WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE ALPHABRAND PLATFORM WILL BE UNINTERRUPTED OR THAT THE ALPHABRAND PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE ALPHABRAND PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY PROJECT OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE ALPHABRAND PLATFORM.
NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE ALPHABRAND PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE ALPHABRAND SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE PROJECT AND SELECTING THEIR MASTER CRAFTSMEN. COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND OR ENDORSE ANY PARTICULAR MASTER CRAFTSMAN. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY MASTER CRAFTSMEN’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
- No Liability
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS WILLING TO PROVIDE THE ALPHABRAND PLATFORM ONLY UPON YOUR EXPRESS AGREEMENT TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS LICENSEES, ITS INSURERS, 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 YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE ALPHABRAND 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 DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION, OTHER THAN PURSUANT TO THE ALPHABRAND GUARANTEE.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE ALPHABRAND PLATFORM OR THE PROJECT SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE ALPHABRAND PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, ITS LICENSEES, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES IN EXCESS OF THE ALPHABRAND GUARANTEE, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, agents, licensors, licensees, insurers, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with (i) your use or inability to use the AlphaBrand Platform, or (ii) any content submitted by you or using your account to the AlphaBrand Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
- Dispute Resolution
INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Company agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days prior to initiating any arbitration or court proceeding. You agree that the completion of such informal negotiations as provided herein is a condition precedent absolute to the commencement of any legal proceeding hereunder. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Company. Company’s attorney’s address for such notices is AlphaBrand, LLC., Pite Law Office LLC, 1948 Chapel Street, New Haven Connecticut 06515. Attention: Legal.
Any dispute, controversy or claim arising out of or relating in any way to the AlphaBrand Platform, including without limitation any dispute concerning the construction, validity, interpretation, enforceability or breach of the AlphaBrand Platform, shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) upon a Party’s submission of the dispute to arbitration. The complaining Party shall notify the other Party in writing thereof. Any election to arbitrate by one party will be binding on the other, UNLESS Company elects to waive binding arbitration in favor of litigation in court. You understand that an election to waive arbitration by Company can be done without your consent and will be final and binding on you. The arbitration shall be conducted by one arbitrator. If the Parties are not able to agree upon the selection of an arbitrator, within 20 days of commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the AAA. The arbitrator shall have at least five years of experience in the construction law field and also shall have served as an arbitrator at least three times prior to their service as an arbitrator in this arbitration. The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the AAA and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The arbitration proceedings shall be conducted in New Haven County, Connecticut or as otherwise agreed to by the Parties. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section by bringing suit in any court of competent jurisdiction. The parties agree that the arbitrator shall have authority to grant injunctive or other forms of equitable relief to any party. Except as otherwise provided in this Agreement, you and Company may litigate in court to compel arbitration or stay proceeding pending arbitration. This shall survive the termination or cancellation of this Agreement.
EXCEPTIONS TO ALTERNATIVE DISPUTE RESOLUTION. Claims where mandatory arbitration is prohibited by a valid, non-preempted law are not covered by this arbitration provision. Each party retains the right to bring an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or state court in New Haven County, Connecticut with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property or proprietary rights.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. You and Company agree that any arbitration will be limited to the Dispute between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
WAIVING BINDING ARBITRATION. Company reserves the sole and exclusive right to waive binding arbitration. In the event arbitration proceedings are initiated by you and Company wishes to waive such arbitration, Company shall provide you with written notice thereof within 14 calendar days upon receipt of the binding arbitration proceedings notice.
WAIVER OF RIGHT TO JURY TRIAL. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to the AlphaBrand Platform or any performance or failure to perform any obligation hereunder or any other agreement between the parties.
PREVAILING PARTY. The prevailing party shall have the right to collect from the other party its reasonable attorney’s fees and costs, including costs for mechanic’s liens, incurred in the enforcement of this AlphaBrand Platform or any other agreement between the Parties in court.
- Governing Law
You and Company agree that, other than as set forth under the subsection entitled “Waiver Of Right To Be A Plaintiff Or Class Member In A Purported Class Action Or Representative Proceeding” in Section 20 above, if any portion of Section 20 entitled “Dispute Resolution” is found illegal or unenforceable, that portion will be severed and the remainder of the Agreement will be given full force and effect. Notwithstanding the foregoing, if the subsection entitled “Exceptions to Alternative Dispute Resolution” in Section 20 is found to be illegal or unenforceable, neither you nor Company will elect to arbitrate any Dispute falling within that portion of that subsection that is found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within New Haven, Connecticut, and you and Company agree to submit to the personal jurisdiction of that court.
Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of Connecticut, without regard to choice of law principles.
Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, the enforceability of Section 20 entitled “Dispute Resolution” shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
- Special Promotions
Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified or removed at any time by Company without advance notification and the liability of any of Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to Section 18 of these Terms of Service, including but not limited to Section 18 of these Terms of Service.
- No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
- General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
- Changes to this Agreement and the AlphaBrand Platform