remodelmate Terms of Service
Last updated: Wednesday, April 12, 2017
These Terms of Service constitute a legally binding agreement between you and remodelmate, Inc. (“Company” or “remodelmate”) governing your use of the remodelmate Platform (as defined below), Company’s website (https://home.remodelmate.com or the “Site”) and mobile applications (the “Apps”). The remodelmate Platform and related services provided by Company, the Site, and Apps, including without limitation communications and information (whether in writing, orally, or otherwise howsoever) provided by Company to potential and actual Installers and Owners (both as defined at Section 1) in relation to the services, together are hereinafter collectively referred to as the “remodelmate Platform.”
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND REMODELMATE CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 19, AS APPLICABLE). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 19, AS APPLICABLE) AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE REMODELMATE PLATFORM.
You must be 21 years old or at least the legally required age in the jurisdiction in which you reside, and otherwise capable of entering into binding contracts, in order to use or access the remodelmate Platform. If you are under 21 years old or the age of majority in your jurisdiction, then you may not use or access the remodelmate Platform. Children under 13 years old are prohibited from accessing the remodelmate Platform or otherwise providing any personal information to remodelmate.
A summary of our Terms of Service include:
- Your agreement that the remodelmate Platform is provided “as is” and without warranty (Section 17).
- Your agreement that Company has no liability regarding the remodelmate Platform or the performance of Projects (as defined below at Section 1) (Section 17).
- Your acknowledgment and agreement that Owners, and not remodelmate, scope, supervise, direct, control, and monitor an Installer’s work and the Projects (Section 1).
- Your acknowledgment and agreement that Owners are solely responsible for determining if the Installer booked is qualified to perform the project at hand.
- Your acknowledgment and agreement that Installers are independent contractors of Owners and not employees, independent contractors or service providers of remodelmate (Sections 1 and 12)
- Your consent to release Company from liability based on claims between Users (Section 2), in respect of Installer claims (Section 12) and generally (Section 17).
- Your agreement to indemnify Company from claims due to your use or inability to use the remodelmate Platform or content submitted from your account to the remodelmate Platform (Section 18).
- Your consent to submit any claims against Company to binding arbitration, and on an individual basis only, to the extent permissible by law (Section 19).
1. The remodelmate Platform Connects Installers and Owners
The remodelmate Platform is a web-based communications platform which enables connections between Owners and Installers. “Owners” are individuals and/or businesses seeking to obtain renovation project services (“Projects”) from Installers and are therefore clients of Installers, and “Installers” are individuals and/or businesses seeking to perform Projects for Owners. Owners and Installers together are hereinafter referred to 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 the two of you as set forth in more detail in Section 3 below.
INSTALLERS ARE INDEPENDENT CONTRACTORS OF OWNERS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF COMPANY. COMPANY DOES NOT PERFORM PROJECTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM PROJECTS. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR AN INSTALLER’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE PROJECTS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
The remodelmate Platform only enables connections between Users for the fulfillment of Projects. Company is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Projects, Installers, Owners, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings provided by Users with respect to each other. The Company makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Projects requested or services provided by, or the communications of or between, Users identified through the remodelmate Platform, whether in public, private, or offline interactions or otherwise howsoever.
2. User Vetting and User Representations and Warranties
In Company’s sole discretion, Users may be subject to an extensive vetting process before they can register for and during their use of the remodelmate Platform, including but not limited to a verification of identity, using third-party services as appropriate (“Identity Checks”). Although the Company may perform Identity Checks, Company is not required to do so and cannot confirm that each User is who they claim to be. The Company cannot and does not assume any responsibility for the accuracy or reliability of Identity Check information or any information provided through the remodelmate Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Remodelmate will not be liable for any false or misleading statements made by Users of the remodelmate Platform. NEITHER REMODELMATE NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “REMODELMATE AND AFFILIATES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE REMODELMATE PLATFORM AND YOU HEREBY RELEASE REMODELMATE AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE REMODELMATE PLATFORM.
User Representations and Warranties
You represent and warrant that: (1) you are 21 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (2) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You hereby warrant and represent that, other than as fully and promptly disclosed to Company as set forth below, you do not have any motivation, status, or interest which Company may reasonably wish to know about in connection with the remodelmate Platform, including without limitation, if you are using or will or intend to use the remodelmate Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Company in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the remodelmate Platform.
Installers additionally represent and warrant that you will provide timely, high-quality services to your Owners, you will only offer and provide services for which you have the necessary skills and expertise, and you will provide the services safely and in accordance with all applicable laws, and that you have the legal right to work in the country in which you are performing Projects.
3. The Contract between Owners and Installers
You acknowledge and agree that a legally binding contract (the “Service Agreement”) is formed when you agree on the terms of a 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 remodelmate Platform, and any other contractual terms accepted by both the Installer and their Owner to the extent such terms do not conflict with the terms in this Agreement, including this Section 3, and do not expand the 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 circumstances, create an employment or other service relationship between Company and the Installer (or Assistants (as defined below)), nor will it create an employment relationship between the Owner and the Installer (or Assistants (as defined below)). Company’s role is restricted solely to acting as a limited payment collection agent for the Installer to facilitate payment on behalf of the Installer through the remodelmate Platform using the PSP in respect of Projects they perform. In acting as the limited payment collection agent for particular Projects on the remodelmate Platform, remodelmate disclaims any other agency or authority to act on behalf of the Installer and assumes no liability or responsibility for any acts or omissions of the Installer, either within or outside of the remodelmate Platform.
Where approved in advance by the Owner, the Installer is not obligated to personally perform the Project. Before any Project services are performed by any assistants, helpers, subcontractors or other personnel engaged by the Installer (collectively “Assistants”), the Installer shall require any such individuals to become fully registered, oriented and verified Installers on the remodelmate Platform. An Installer’s failure to comply with this provision by bringing an Assistant who is not a registered Installer could lead to removal from the remodelmate Platform. The Installer assumes full and sole responsibility for the acts and omissions of such Assistants, including without limitation the payment of all compensation, benefits, and expenses of Assistants, if any, and for all required and applicable income tax withholdings as to the Installer and all persons engaged by the Installer in the performance of the Project services.
While using the remodelmate Platform, Owners, in their sole discretion, determine whether they will be present or not when a Project is performed and/or completed. Owners who elect not to be present when a Project is performed and/or completed agree that if someone other than them (i.e. spouse, roommate, friend, etcetera) is present when the Project is performed, they are appointing that person as their agent (“Owner’s Agent”) and the Installer may take and follow direction from the Owner’s Agent as if such direction was given from the Owner him or herself.
The Owner shall pay their Installer directly for completed Project services through the PSP as indicated on the remodelmate Platform at the rates agreed to by the parties in the Service Agreement. Each User agrees to comply with the Service Agreement and this Agreement during the engagement, performance, and completion of a Project. Both Users 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. Remodelmate reserves the right to suspend or terminate any account or Project pending the resolution of any dispute.
4. Billing and Payment
Users of the remodelmate 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 remodelmate Platform is made directly from the Owner to the Installer via the PSP, and not by Company. Company is not obligated to pay Installer for Owner’s failure to pay for services.
Users of the remodelmate Platform will be required to provide their payment method details to Company and the PSP. Installers are responsible for invoicing their Owners within 24 hours of the work being performed, even if the Project is not completed in its entirety or is designated as “ongoing”. Owners 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 an Installer (“Project Payment”), (ii) any out of pocket expenses agreed with and submitted by an Installer in connection with the Project, (iii) any tip or gratuity, if applicable, (iv) the service charge Company assesses to the Installer as payable for the use of the remodelmate Platform, variable based on the Project Payment amount, and (v) the platform fee (sometimes referred to as Concierge Fee) Company assesses to the Owner, which is used to offset Company’s cost of providing Owners with customer support, providing the Project Satisfaction Pledge set forth in Section 13, and other various business objectives, and (vi) cancellation fees, if applicable. Installers will be responsible for paying (i) registration fees, if applicable and (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments. Owners may also be charged credit card processing fees equal to three percent (3%) of the aggregate expense amount if expenses related to a Project individually, or Projects in the aggregate over a 30-day period, exceed $30,000.00.
Installers may be required to register with the PSP, agree to the terms of service of the PSP, and go through a vetting process at the request of the PSP to set up their account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, each Installer agrees that they have downloaded or printed, and reviewed and agreed to, the PSP Services Agreement. Please note that remodelmate is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that remodelmate has no obligation, responsibility or liability to any Installer or other parties under the PSP Services Agreement.
To help prevent fraud and safeguard User information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a temporary charge is placed on the account associated with the User and then refunded within 1-3 business days. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary between $0.01 to $5,000.00, depending on the estimated value of the Project and expenses.
When the Owner receives confirmation through the remodelmate Platform or via email that a Project has been completed, the Owner automatically authorizes the PSP to process the Invoice. Users may be charged a one-hour cancellation fee through the PSP if you book (or accept) a Project, but cancel it before the scheduled time for the performance.
Company reserves the right (but not the obligation), in its sole discretion, upon request from Owner or Installer, or upon notice of any potential fraud, unauthorized charges or other misuse of the remodelmate Platform, to (i) place on hold any Project Payment, out of pocket expenses, and/or tip or gratuity (if applicable) or (ii) refund or provide credits, or arrange for the PSP to do so.
Project Payment and fees must be paid through the PSP as indicated on the remodelmate Platform.
Users of the remodelmate Platform will be liable for any taxes required to be paid on the Projects provided under the Agreement.
5. Contests, Gift Cards, and Promotional Codes
Company may from time to time provide certain promotional opportunities 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. The liability of any of Company’s corporate partners pursuant to such promotional opportunities and contests shall be limited pursuant to Section 17 of these Terms of Service.
Company gift cards (“Gift Cards”) and promotional codes (“Promo Codes”) may be available and can be used to pay Project Payments and Company service charges and platform fees in part or in full, but may not be used to pay for reimbursement of out of pocket expenses or tips associated with a Project provided through the remodelmate Platform.
(a) Promo Codes
Promo Codes are an offer by Company to reduce the amount an Owner has to pay in relation to a Project Payment, service fee, and/or platform fee. Promo Codes will not affect the amount of the Project Payment an Installer ultimately receives. The use or application of any Promo Code is solely intended as a promotional initiative and does not in any way create a relationship or engagement between Company or the Installer or represent wages, fees or other amounts paid to the Installer by Company. You agree that you will use Promo Codes in accordance with the terms of the Promo Code. Company reserves the right to withhold or deduct credits or other features or benefits obtained through the use of a Promo Code by you or any other User in the event that Company determines or believes that the use or redemption of a Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or this Agreement.
(b) Gift Cards
You agree that you will comply with all Gift Card terms and conditions. Gift Cards are not replaceable if lost or stolen and have no expiration date, but in certain U.S. states, after a period of time, Company may remit the cash associated with unused Gift Card balances to the state pursuant to that state’s abandoned property laws. Once Company has remitted such cash to a state, the Gift Card may no longer be redeemed and the Company may direct the Gift Card holder to that state’s government instead. Gift Cards have no cash value and are not redeemable for cash except in the following thirteen U.S. states where it is required by law to the extent noted below: California, Colorado, Connecticut, Maine, Massachusetts, Montana, New Jersey, Oregon, Rhode Island, Texas, Vermont, Washington, and West Virginia. If you are a resident of one of these U.S. states, and the balance on your Gift Card is less than the respective dollar amount below, you may redeem it for cash:
- California < USD 10
- Colorado < USD 5
- Connecticut < USD 3
- Maine < USD 5
- Massachusetts < USD 5
- Montana < USD 5
- New Jersey < USD 5
- Oregon < USD 5
- Rhode Island < USD 1
- Texas < USD 2.50
- Vermont < USD 1
- Washington < USD 5
- West Virginia < USD 1
Simply send your Gift Card along with a self-addressed, stamped envelope to remodelmate, Inc., 2055 L Street NW, 4th Floor, Washington DC, 20036 Attention: Gift Cards.
Company will verify your address, confirm that your Gift Card balance qualifies you for redemption, and send you a check for the exact amount in the envelope provided. If your Gift Card balance is equal to or greater than the cap, or Company cannot verify your residency, Company will return your Gift Card in the envelope provided. Company will be unable to redeem or return your Gift Card without a self-addressed, stamped envelope and is not responsible for mail that does not arrive at the address provided and cannot guarantee delivery in any way after submittal to the US Postal Service.
A Gift Card cannot be combined with any other Gift Cards, gift certificates or other Promo Codes. A Gift Card cannot be used as a credit or debit card. Company reserves the right to limit quantities of Gift Cards purchased by any person or entity and to cancel a Gift Card if it believes that the Gift Card was obtained through fraudulent or unauthorized means. No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Card. You cannot “reload” a Gift Card (i.e., you cannot add value/balance to your Gift Card at this time). If a Gift Card holder’s purchase exceeds the amount of that Gift Card’s balance, the Gift Card holder must pay the difference by another means. Unused Gift Card balances are not transferable. Company reserves the right to correct the balance of a Gift Card if the Company believes that a billing error has occurred. Company disclaims all liability for any such billing errors. Gift Cards and their use are subject to this Agreement, and use of a Gift Card constitutes acceptance thereof.
6. Public Areas; Acceptable Use
The remodelmate Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, 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 only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the remodelmate Platform, you should not share your personal contact information with other Users.
Without limitation, while using the remodelmate Platform, you may not:
- Defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and remodelmate staff, or use information learned from the remodelmate Platform or during the performance of Projects to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other User or Company staff;
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the remodelmate Platform;
- Use the remodelmate Platform for any unauthorized purpose, including, but not limited to posting or completing a Project in violation of local, state, provincial, 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 User, third party, or Company;
- 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 remodelmate Platform which are not relevant to the Project services offered through the remodelmate 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 remodelmate 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 remodelmate, without the prior written consent of remodelmate;
- Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the remodelmate Platform, or the electronic addresses or personal information of others, in any manner;
- Frame or utilize framing techniques to enclose the remodelmate Platform or any portion thereof;
- Hack or interfere with the remodelmate Platform, its servers or any connected networks;
- Adapt, alter, license, sublicense or translate the remodelmate Platform for your own personal or commercial use;
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by remodelmate and Affiliates;
- Upload content to the remodelmate Platform 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 in an abusive, violent or sexual manner;
- Use the remodelmate 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 remodelmate Platform as set forth herein;
- Use the remodelmate Platform to collect usernames, email addresses, or other personal information of Users by electronic or other means;
- Use the remodelmate Platform or the Project services in violation of this Agreement;
- Use the remodelmate Platform in a manner that is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes;
- Attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the remodelmate Platform, providing 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 false identities, or register using a false or disposable email or phone number; or
- 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. Remodelmate will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
7. Mobile App Updates and Upgrades
8. Termination and Suspension
Company may terminate or limit your right to use the remodelmate Platform in the event that we are investigating or believe that you have breached any provision of this Agreement (a “User Breach”), by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice.
If Company terminates or limits your right to use the remodelmate Platform pursuant to this Section 8, 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. If Company terminates or limits your right to use the remodelmate Platform as an Owner due to a User Breach, you will not be entitled to any refund of unused balance in your account.
Even after your right to use the remodelmate Platform is terminated or limited, this Agreement will remain enforceable against you. Company reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 19 of these Terms of Service.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the remodelmate Platform at its sole discretion. Company is not liable to you for any modification or discontinuance of all or any portion of the remodelmate Platform. Company has the right to restrict anyone from completing registration as an Installer if Company believes such person may threaten the safety and integrity of the remodelmate 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 remodelmate Platform. All parts of this Agreement 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.
9. Account, Password, Security, and Mobile Phone Use
You must register with Company and create an account to use the remodelmate Platform (an “Account”). You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Company for accessing the remodelmate Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. If you are accessing and using the remodelmate Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms provided herein. 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 agree to contact Company immediately.
By providing your mobile phone number and using the remodelmate Platform, you hereby affirmatively consent to remodelmate’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (a) perform and improve upon the remodelmate Platform, (b) facilitate the carrying out of Projects through the remodelmate Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Projects, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming Projects and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but the standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Apps, texting “STOP” in response to any texts, or by emailing email@example.com and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing firstname.lastname@example.org and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
10. User Generated Content
“User Generated Content” is defined as any information and materials you provide to Company, its corporate partners, or other Users in connection with your registration for and use of the remodelmate Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that remodelmate is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that remodelmate has no obligation to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the remodelmate Platform at its sole discretion.
You hereby represent and warrant to Company that your User Generated Content (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 on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality 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, false advertising, anti-spam or privacy); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography (including but not limited to 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; (h) will not represent you being employed or directly engaged by or affiliated with remodelmate or purport you to act as a representative or agent of remodelmate; and (i) 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 remodelmate Platform hosts User Generated Content relating to reviews and ratings of specific Installers (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Owner should undertake their own research to be satisfied that a specific Installer is the right person for a Project. You agree that Company is not responsible or 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 is not obligated to investigate any remarks posted by Users for accuracy or reliability but may do so at its discretion.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights you have in your User Generated Content, in any media now known or not currently known in order to perform and improve upon the remodelmate Platform.
Each Installer who provides to Company any videotape, film, recording, photograph, voice, or all related instrumental, musical, or other sound effects (collectively, “Media”), in exchange for the right to use the remodelmate Platform, hereby waives any and all moral rights in connection with such Media and irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- Exhibit, distribute, display, transmit, and broadcast on any and all media, including, without limitation, the internet, any videotape, film, recording or photograph that such User provides to Company or that Company takes of Installer, and use, reproduce, modify, or creative derivatives of such Installer 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”);
- Reproduce in all media any recordings of such Installer’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the remodelmate Platform;
- Use, and permit to be used, such Installer’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the remodelmate Platform in any media; and
- Use, and permit to be used, such Installer’s name and identity in connection with the remodelmate Platform.
Each Installer warrants and represents that they have the lawful authority to grant the rights set out above.
Each Installer hereby waives all rights and releases remodelmate and Affiliates 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 Installer’s identity, likeness or voice in connection with the remodelmate Platform.
Each Installer acknowledges that remodelmate shall not owe any financial or other remuneration for using the recordings provided hereunder by such Installer, either for initial or subsequent transmission or playback, and further acknowledges that remodelmate is not responsible for any expense or liability incurred as a result of such Installer’s recordings or participation in any recordings, including any loss of such recording data.
11. Links to Third-Party Websites
The remodelmate Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute an endorsement by Company or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the remodelmate Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Company does not control any such websites and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that remodelmate is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that remodelmate has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the remodelmate Platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Remodelmate expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the remodelmate Platform. You hereby agree to hold remodelmate harmless from any liability that may result from the use of links that may appear on the remodelmate Platform.
As part of the functionality of the remodelmate 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 remodelmate Platform; or (ii) allowing remodelmate 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 remodelmate and/or grant remodelmate 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 remodelmate to pay any fees or making remodelmate subject to any usage limitations imposed by such third-party service providers. By granting remodelmate access to any Third-Party Accounts, you understand that (i) remodelmate 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 remodelmate Platform via your account, including without limitation any friend lists, and (ii) remodelmate may submit and receive additional information to your Third-Party Account to the extent you are notified of this 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. 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 remodelmate Platform. Please note that if a Third-Party Account or associated service becomes unavailable or remodelmate’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 remodelmate Platform. You will have the ability to disable the connection between your account on the remodelmate Platform and your Third-Party Accounts at any time, as set forth below. 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. The 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.
12. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, REMODELMATE 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. AS AN OWNER, YOU INDEMNIFY AND HOLD REMODELMATE AND AFFILIATES HARMLESS, AND AS AN INSTALLER, YOU FULLY AND FINALLY RELEASE REMODELMATE AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, LOSSES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES THAT INSTALLERS OR ASSISTANTS MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, COMMON LAW, CIVIL LAW, STATUTE OR OTHERWISE, IN RESPECT OF PROJECTS OR SERVICE AGREEMENTS OR THE USE OF THE REMODELMATE PLATFORM, INCLUDING WITH RESPECT TO MISCLASSIFICATION OF INSTALLERS AND ASSISTANTS AND THE TERMINATION OR CESSATION OF ANY PROJECTS, SERVICE AGREEMENTS, THIS AGREEMENT OR THE USE OF THE REMODELMATE PLATFORM.
Users do not have the authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges and agrees that remodelmate does not, in any way, supervise, scope, direct, control or monitor an Installer’s work or Projects performed in any manner. Company does not set an Installer’s work hours or location of work. Remodelmate will not provide any equipment, tools, labor or materials needed for a particular Project. Remodelmate does not provide any supervision to Users.
The remodelmate Platform is not an employment agency service or business and remodelmate is not an employer of any User. As such, remodelmate is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal, provincial or state withholdings in connection with a User’s use of the remodelmate Platform. Installers acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Agreements and performing Projects and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
This Section 12 in no way limits the generality of Section 17.
13. remodelmate Project Satisfaction Pledge
The remodelmate Project Satisfaction Pledge is part of this Agreement and incorporated by reference. Installers determine what categories they are qualified to work in and scope the Project directly with their Owner. Remodelmate does not oversee, monitor or direct how an Installer performs a Project, does not monitor Projects or chat threads between Users, and does not otherwise oversee or assume responsibility for the actions of Users. Owners are advised to confirm with their Installer that their Installer is qualified to perform the Project prior to the Project taking place. Remodelmate is not liable for the acts or omissions of Users, nor does Remodelmate provide insurance against any losses sustained by Users. That said, remodelmate wants Users to be happy about their experience using the remodelmate Platform and the Project Satisfaction Pledge is in place to encourage continued use of the remodelmate Platform.
14. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the remodelmate Platform is owned by remodelmate, excluding User Generated Content, which Users hereby grant remodelmate a license to use. Proprietary Material is protected in all forms, media, and technologies now known or hereinafter developed. Remodelmate 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 governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the remodelmate Platform without remodelmate’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 herein, is expressly prohibited without the prior permission of remodelmate and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of remodelmate, including without limitation remodelmate and remodelmate logos, are service marks owned by remodelmate. Any other trademarks, service marks, logos and/or trade names appearing via the remodelmate 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.
15. Copyright Complaints and Copyright Agent
Remodelmate 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 remodelmate Platform infringe upon your copyright or other intellectual property rights, please send the following information to remodelmate’s Copyright Agent at: remodelmate, Inc., 2055 L Street NW, 4th Floor, Washington, District of Columbia 20036, USA or email@example.com:
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the remodelmate Platform where the material you claim is infringed is located. Include enough information to allow remodelmate 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.
16. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of remodelmate 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 using the remodelmate Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify remodelmate in writing of any circumstances that 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 remodelmate upon the termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of remodelmate’s trade secrets, confidential and proprietary information, and all other information and data of remodelmate 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, strategic and other proprietary and confidential information relating to remodelmate or remodelmate’s business, operations or properties, including information about remodelmate’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
17. Disclaimer of Warranties
(a) Use Of The remodelmate Platform Is Entirely At Your Own Risk
THE REMODELMATE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. REMODELMATE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE REMODELMATE PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE REMODELMATE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT 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 REMODELMATE PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
Remodelmate does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the remodelmate Platform or any hyperlinked website or featured in any banner or other advertising, and remodelmate 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. 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, remodelmate and Affiliates do not warrant that access to the remodelmate Platform will be uninterrupted or that the remodelmate Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the remodelmate Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Project, service, information or materials provided through or in connection with the use of the remodelmate Platform. Remodelmate and Affiliates are not responsible for the conduct, whether online or offline, of any User. Remodelmate and Affiliates do not warrant that the remodelmate Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Remodelmate and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
Notwithstanding any feature an Owner may use to expedite Installer selection, each Owner is responsible for determining the Project and selecting their Installer and remodelmate does not warrant any goods or services purchased by an Owner and does not recommend any particular Installer. Remodelmate does not provide any warranties or guarantees regarding any Installer’s professional accreditation, registration or license.
In addition, no individual or entity shall be a third party beneficiary of these terms. These terms are solely for the benefit of the parties to this Agreement and are not intended to and shall not be construed to give any person or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other rights (including, without limitation, any third party beneficiary rights), with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
(b) No Liability
You acknowledge and agree that remodelmate is only willing to provide the remodelmate Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold remodelmate and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the remodelmate 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 remodelmate and Affiliates and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL REMODELMATE AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY REMODELMATE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE REMODELMATE PLATFORM OR THE PROJECT SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
REMODELMATE AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS REMODELMATE PLATFORM. REMODELMATE AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE REMODELMATE PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT REMODELMATE AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, 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, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Some jurisdictions do not allow the exclusion of certain warranties or limitation of liability for consequential or incidental damages, so certain aspects of the limitations above may not apply to you.
THE REMODELMATE PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. BECAUSE REMODELMATE IS NOT A PARTY TO OR OTHERWISE INVOLVED IN THE ACTUAL CONTRACT BETWEEN USERS OR IN THE COMPLETION OF THE PROJECT, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU HEREBY RELEASE REMODELMATE AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL, OR EXEMPLARY), EXPENSES, LOSSES, GOVERNMENTAL OBLIGATIONS, SUITS AND/OR CONTROVERSIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You hereby agree to indemnify, defend, and hold harmless remodelmate and Affiliates, and their attorneys, insurers, independent contractors, providers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the remodelmate Platform or perform Projects, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your account to the remodelmate 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. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Remodelmate reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of remodelmate.
19. Dispute Resolution – Arbitration & Class Action Waiver
USERS RESIDING IN THE UNITED STATES: PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND REMODELMATE CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND REMODELMATE TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Informal Negotiations
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and remodelmate (each a “Claim” and collectively “Claims”), you and remodelmate agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration. This pre-arbitration negotiation shall be initiated by providing written notice to the other party—including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to remodelmate, Inc., 2055 L Street NW, 4th Floor, Washington District of Columbia, 20036 Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or remodelmate may initiate arbitration while engaging in the informal negotiations.
During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
After a good faith effort to negotiate, if you or remodelmate believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”).
(b) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND REMODELMATE MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate contained in Section 19 (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of this Agreement and your relationship with Company.
Claims covered by this Arbitration Agreement including, but not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof); the remodelmate Platform, services, or Projects; your relationship with remodelmate; the threatened or actual suspension, deactivation or termination of your Account or this Agreement; payments made by you or any payments made or allegedly owed to you; any city, county, state or federal wage-hour law; compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress; any promotions or offers made by Company; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters; and all other federal and state statutory and common law claims.
If there is a dispute about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of this arbitration agreement), you and remodelmate agree that this threshold dispute shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disputes, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND REMODELMATE ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY THE TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and remodelmate agree that any arbitration will be limited to the Claim between remodelmate and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND REMODELMATE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and remodelmate 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. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Company, which are addressed separately in Section 19(d) below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, to the fullest extent allowed by law: (1) you and remodelmate agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Company agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, 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 or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. You and remodelmate agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Company initiates arbitration under this Arbitration Agreement, the Company will pay all AAA filing and arbitration fees.
(ii) If an Owner or Installer files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD $10,000, Company will pay all AAA filing and arbitration fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(iii) If an Owner or Installer files a Claim in accordance with this Arbitration Agreement and the associated claim for damages exceeds USD $10,000, Company shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses, and the Owner or Installer shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which they perform Projects, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose, however, then the allocation of fees will be governed by the applicable AAA Rules.
(iv) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(v) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Company agree otherwise, any arbitration hearings between Company and an Installer will take place in the county of your billing address, and any arbitration hearings between Company and an Owner will take place in the county in which you received Project services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims may be, but are not required to be, arbitrated under the Arbitration Agreement:
- Claims for workers’ compensation, disability insurance, and unemployment insurance benefits;
- Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
- Applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
- A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 19(d) is deemed unenforceable by a court of competent jurisdiction; and
- Claims that may not be subject to arbitration as a matter of general law not preempted by the Federal Arbitration Act.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However, you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
Except as otherwise provided in the severability provisions in Sections 19(c) and 19(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
If you are an Installer, you may opt out of the Arbitration Agreement by notifying Company in writing within thirty (30) days of your agreement to these Terms of Service. To opt out, you must send a written notification to Company at remodelmate, Inc., 2055 L Street NW, 4th Floor, Washington District of Columbia, 20036 Attention: Legal, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
20. Governing Law
USERS RESIDING IN THE UNITED STATES: Except as provided in Section 19 or expressly provided otherwise, this Agreement and your use of the remodelmate Platform will be governed by and will be construed under, the laws of the State of California, without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create any substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise.
21. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
22. 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 complete and exclusive agreement between you and Company with respect to its subject matter and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” in Section 19, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. 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 22 shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
Installers alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Projects. Indeed, certain types of Projects and services may be prohibited altogether, and it is the responsibility of Installers to avoid such prohibited Projects and services. Penalties may include fines or other enforcement. If you have questions about how local laws apply to your Projects and services on the platform, you can and should first seek separate legal guidance.
Because remodelmate does not oversee, monitor or supervise the posting, scoping or performance of Projects, Owners must determine for themselves whether an Installer is qualified to perform the specific Project at hand. Owners may wish to consult their state/provincial/territorial or local requirements to determine whether certain Projects are required to be performed by a licensed professional.
24. Changes to this Agreement and the remodelmate Platform
25. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
26. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the remodelmate Platform, please contact us by email at firstname.lastname@example.org or by mail to 2055 L Street NW, 4th Floor, Washington District of Columbia 20036, USA.