MENDER PLATFORM TERMS OF SERVICE
These Terms of Service constitute a legally binding agreement between you and Mender App L.L.C. (“Mender”) governing your use of the Mender Platform. Mender’s websites www.bemender.com (the “Sites”), mobile applications (the “Apps”), and related services, information and communications are collectively referred to as the “Mender Platform.”
BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR USING THE MENDER PLATFORM, 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 AGREEMENT) AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND ABIDE BY ITS TERMS, YOU MAY NOT USE OR ACCESS THE MENDER PLATFORM.
1. The Mender Platform Connects Providers and Clients
The Mender Platform is a web-based communications platform which enables connections between Clients and Providers. “Clients” are individuals and/or businesses seeking to obtain short-term services (“Services”) from Providers and are therefore clients of Providers, and “Providers” are individuals and/or businesses seeking to perform Services for Clients. Clients and Providers together are hereinafter referred to as “Users.” If you agree on the terms of a Service 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.
PROVIDERS ARE INDEPENDENT BUSINESS OWNERS. PROVIDERS ARE INDEPENDENT CONTRACTORS OF CLIENTS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF MENDER. MENDER DOES NOT PERFORM SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES. BY CONNECTING PEOPLE AND BUSINESSES SEEKING SERVICES WITH SERVICE PROVIDERS, MENDER OPERATES AS AN ONLINE REFERRAL SERVICE THAT CONNECTS CLIENTS WITH SERVICE PROVIDERS (PROVIDERS) WHO WISH TO PERFORM A VARIETY OF SERVICES.
USERS HEREBY ACKNOWLEDGE THAT MENDER DOES NOT SUPERVISE, SCOPE, DIRECT, CONTROL OR MONITOR A PROVIDER’S WORK AND EXPRESSLY DISCLAIMS, TO THE EXTENT PERMITTED BY LAW, ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE SERVICES 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, STATUTE, ORDINANCE, REGULATION, OR CODE.
Any reference on the Mender Platform to a Provider being licensed or credentialed in some manner, or "badged," “reliable,” “reliability rate,” “elite,” “great value,” "background checked," “vetted” (or similar language) designations indicates only that the Provider has completed a relevant account process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Mender of such Provider’s skills or qualifications or whether they are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for Clients to evaluate when they make their own decisions about the identity and suitability of Providers whom they contact or interact with via the Mender Platform.
The Mender Platform enables connections between Users for the fulfillment of Services. Mender 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 Services, Providers, or Clients, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings or reviews provided by Users with respect to each other. Mender makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Services requested or services provided by, or the communications of or between, Users identified through the Mender Platform, whether in public or private, via on- or off-line interactions, or otherwise howsoever.
2. COVID-19, and User Representations and Warranties
The novel coronavirus, COVID-19, has been declared a worldwide pandemic by the World Health Organization. COVID-19 is reported to be extremely contagious. The state of medical knowledge is evolving, but the virus is believed to spread from person-to-person contact and/or by contact with contaminated surfaces and objects, and even possibly in the air. People reportedly can be infected and show no symptoms and therefore spread the disease. The exact methods of spread and contraction are unknown, and there is no known treatment, cure, or vaccine for COVID-19. Evidence has shown that COVID-19 can cause serious and potentially life-threatening illnesses and even death. We cannot prevent you from becoming exposed to, contracting, or spreading COVID-19 while performing or receiving Services. It is not possible to prevent against the presence of the disease. Therefore, if you choose to contract for Services, you may be exposing yourself to and/or increasing your risk of contracting or spreading COVID-19.
Personal Health Certification
Prior to each instance of contracting for Services, every User will be required to self-certify that they and persons present for the Services will wear face masks throughout their presence at performance of Services, are symptom-free, and will follow CDC and local guidelines related to COVID-19.
Specifically, Users will confirm that:
Anyone who does not agree to the personal health certification will be unable to contract for Services on the Mender Platform.
(c) User Representations and Warranties
All Users represent and warrant that:
Providers additionally represent and warrant that:
3. Contract between Clients and Providers
You acknowledge and agree that a legally binding contract with another User (the “Service Agreement”) is formed when you and that User agrees on the terms of a Service. The terms of the Service Agreement include the terms set forth in this Section, the engagement terms proposed and accepted on the Mender Platform, and any other contractual terms accepted by both the Provider and their Client to the extent such terms do not conflict with the terms in this Agreement, including this Section, and do not expand Mender’s obligations or restrict Mender’s rights under this Agreement. Mender 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 Mender and the Provider, nor will it create an employment relationship between the Client and the Provider. Users do not have the authority to enter into written or oral — whether implied or express — contracts on behalf of Mender. Mender’s role, beyond enabling connections between Clients and Providers via its web-based communications platform, is to act as a limited payment collection agent for the Provider to facilitate payment for Services on behalf of the Provider through the Mender Platform using the PSP. In acting as the limited payment collection agent for Services on the Mender Platform, Mender disclaims any other agency or authority to act on behalf of the Provider, and assumes no liability or responsibility for any acts or omissions of the Provider, either within or outside of the Mender Platform.
Where approved in advance by the Client, the Provider is not obligated to personally perform the Service. Providers may engage assistants, helpers, subcontractors or other personnel (collectively “Provider Assistants”). For safety reasons, such Provider Assistants shall have been background checked through the Mender Platform. A Provider’s failure to comply with this provision shall be a violation of these Terms of Service and could lead to removal from the Mender Platform. The Provider assumes full and sole responsibility for the acts and omissions of such Provider Assistants and is fully responsible for the lawful payment of all compensation, benefits and expenses of Provider Assistants, if any, and for all required and applicable tax withholdings as to such Provider Assistants. Clients are responsible for confirming with their Provider that any Provider Assistants are registered Providers on the Mender Platform and Clients understand that they are entering into separate Service Agreements with the Provider and each Provider Assistant.
While using the Mender Platform, Clients, in their sole and absolute discretion, determine whether they will be present or not when a Service is performed. Clients who elect not to be present when a Service is performed agree that if someone other than them books the Service on their behalf or is present when the Service is performed, they are appointing that person as their agent (“Client’s Agent”) and the Provider may take and follow direction from the Client’s Agent as if such direction was given from the Client him or herself. If you are a Client’s Agent and accessing and using the Mender Platform on behalf of a Client, you represent that you have the authority to act as their agent and to bind that person as the principal to all provisions of the Terms of Service. Client assumes full and sole responsibility for the acts and omissions of Client’s Agents.
The Client shall pay their Provider(s) in full for all Service services via the PSP as indicated on the Mender 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 Service.
4. Public Areas; Acceptable Use
The Mender Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, service postings, messaging (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 Mender Platform, you should not share your personal contact information in Public Areas with other Users.
Without limitation, the Mender Platform may not be used for any of the following purposes:
While using the Mender Platform, you may not:
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. Mender will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
5. Mobile App Updates and Upgrades
7. Deactivation and Suspension
Mender may suspend your right to use the Mender Platform pending its investigation of a potential breach by you of this Agreement. Mender may deactivate your account or limit your use of the Mender Platform upon its determination that you breached a provision of this Agreement (a “User Breach”). Mender will provide you with written notice of its determination. If you wish to appeal this determination, please contact Account Maintenance at firstname.lastname@example.org within 14 days of receipt of such notice with the grounds for your appeal.
If Mender suspends or deactivates your account or limits your use of the Mender Platform pursuant to this Section, you are thereafter prohibited from registering and creating a new account under your name or business 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.
Even after your right to use the Mender Platform is suspended, terminated or limited, this Agreement will remain enforceable against you. Mender reserves the right to take appropriate legal action pursuant to the Agreement.
Mender reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Mender Platform at its sole and absolute discretion. Mender will provide you with notice of any such modification or discontinuation as required by law. To the extent permitted by law, Mender shall not be liable to you for any modification or discontinuance of all or any portion of the Mender Platform. Mender has the right to restrict anyone from completing registration as a Provider if such person may threaten the safety and integrity of the Mender Platform, or if 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 Mender Platform and deactivating your account. 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 or your use of the Mender Platform.
8. Account, Password, Security, and Telephone Communications
You must register with Mender and create an account to use the Mender Platform. 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 Mender for accessing the Mender Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. Mender 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 notify Mender immediately.
You acknowledge that telephone calls to or from Mender, together with its agents and Affiliates, may be monitored and recorded for the purposes of quality control and training.
You verify that any contact information provided to Mender, our agents and affiliates, and Users, including, but not limited to, your name, business name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or deactivate your account. Should any of your contact information change, you agree to immediately notify Mender before the change goes into effect by login in to the account, profile, and use the “Deactivate Account” button, or contact Mender support at email@example.com. If the change regards ownership of your telephone numbers, you may notify Mender by texting STOP to any text message sent to the retiring phone number.
9. User Generated Content
“User Generated Content” is defined as any information and materials you provide to Mender, its corporate partners, or other Users in connection with your registration for and use of the Mender Platform and participation in Mender promotional campaigns, including without limitation the information and materials 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 Mender 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 Mender has no obligation to monitor or review User Generated Content but reserves the right to limit or remove User Generated Content if it is not compliant with the terms of this Agreement.
You hereby represent and warrant to Mender that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the transfer or sale of illegal, counterfeit or stolen items; (c) will not infringe on any third party’s privacy, or copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or personality (to the extent recognized by law in the country where the Service is performed); (d) will not violate any law, statute, ordinance, code, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, incitement of hatred or false or misleading advertising, anti-spam or privacy); (e) will not be defamatory, libelous, malicious, threatening, or 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, scripts such as Trojan Horses, SQL injections, worms, time bombs, corrupt files, 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 claim or suggest in any way that you are employed or directly engaged by or affiliated with Mender or otherwise purport to act as a representative or agent of Mender; and (i) will not create liability for Mender or cause Mender to lose (in whole or in part) the services of its Internet Service Providers (ISPs) or other partners or suppliers.
The Mender Platform hosts User Generated Content relating to reviews and ratings of specific Providers (“Feedback”). Feedback is such User’s opinion and not the opinion of Mender, and has not been verified or approved by Mender. You agree that Mender is not responsible or liable for any Feedback or other User Generated Content. Mender encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Mender is not obligated to investigate any remarks posted by Users for accuracy or reliability or to consider any statements or materials posted or submitted by Users about any Feedback but may do so at its discretion. You agree that Feedback enables Users to post and other Users to read about Users’ expression of their experiences and that you will not complain or take any action merely because you happen to disagree with such feedback. You may request removal of a review that violates this Agreement or [MENDER’S RATINGS AND REVIEWS POLICY] by contacting the Support team at firstname.lastname@example.org. Each Client should undertake their own research to be satisfied that a specific Provider has the right qualifications for a Service.
Mender respects the personal and other rights of others, and expects Users to do the same. Mender is entitled to identify a User to third parties who claim that their rights have been infringed by User Generated Content submitted by that User, so that they may attempt to resolve the claim directly.
If a User believes, in good faith, that any User Generated Content provided on or in connection with the Mender Platform is objectionable or infringes any of its rights or the rights of others (e.g. counterfeiting, insult, invasion of privacy), the User is encouraged to notify Mender. If a User discovers that User Generated Content promotes crimes against humanity, incites hatred and/or violence, or concerns child pornography, the User must notify Mender. Such notification can be made at email@example.com or P.O. Box 371284 San Diego CA 92137.
10. Mender Operates as an Online Marketplace
Mender operates as an online marketplace that connects Clients with service providers (Providers) who wish to perform a variety of Services. Mender does not perform Services and does not employ people to perform Services. Providers operate as independent business owners and are customarily engaged in an independently established business of the same nature as that involved in the services performed for Clients through the Mender Platform. Mender does not control or direct the Providers’ performance of their services or set their work locations or work hours. Providers provide services under their own name or business name, and not under Mender’s name. Providers provide their own tools and supplies to perform their services; Mender does not provide the tools or supplies. Providers are free to maintain a clientele without any restrictions from Mender and are free to offer and provide their services elsewhere, including through competing platforms. Mender does not set Providers’ hours or terms of work. Providers are free to accept or reject Clients and contracts. Providers are not penalized for rejecting Clients or contracts, though if Providers accept a Client or contract through the Mender Platform, they are expected to fulfill their contractual obligations. Providers set their own rates for services performed in the Mender general marketplace, without deduction by Mender.
The Mender Platform is not an employment agency service or business and Mender is not an employer of any User. Providers acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Agreements and performing Services and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
11. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, typefaces and other content, including Mender designs, trademarks, and logos (collectively “Proprietary Material”) that Users see or read through the Mender Platform is owned by Mender, excluding User Generated Content, which Users hereby grant Mender a license to use as set forth below in Section 27. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Mender owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials. The Proprietary Material is protected by domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Mender Platform without Mender’s express prior written consent and, if applicable, the consent of the holder of the rights to the User Generated Content. Any use of such Proprietary Material other than as permitted herein is expressly prohibited.
The service marks and trademarks of Mender, including without limitation Mender, Mender for Good, and associated logos, are service marks owned by Mender. Any other trademarks, service marks, logos and/or trade names appearing via the Mender 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.
12. Copyright Complaints and Copyright Agent
Mender 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 Mender Platform infringe upon your copyright or other intellectual property right, please send the following information to Mender’s Copyright Agent at: firstname.lastname@example.org):
13. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Mender and agree that you will not, for the lifetime of your account on Mender plus 10 years thereafter, disclose, transfer, or use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than use of the Mender 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 use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall promptly notify Mender in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall return all originals and any copies of any and all materials containing Confidential Information to Mender promptly upon deactivation of your User account or termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Mender’s trade secrets, confidential and proprietary information, and all other information and data of Mender 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 Materials and confidential information relating to Mender or Mender’s business, operations or properties, including information about Mender’s staff, Users or partners, or other business information disclosed or obtained directly or indirectly in writing, orally or by drawings or observation.
14. Disclaimer of Warranties
(a) Use Of The Mender Platform Is Entirely At Your Own Risk
THE TECHNOLOGY OF THE MENDER 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, GOOD AND WORKMANLIKE SERVICES, AND NON-INFRINGEMENT. MENDER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE MENDER PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE MENDER 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 MENDER 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.
Mender does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third-party through the Mender Platform or any hyperlinked website or featured in any banner or other advertising, and Mender will not be a party to or in any way be responsible for monitoring any transaction between you and other Users, or 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, Mender and Affiliates do not warrant that access to the Mender Platform will be uninterrupted or that the Mender Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Mender Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Service, service, information or materials provided through or in connection with the use of the Mender Platform. Mender and Affiliates are not responsible for the conduct, whether online or offline, of any User. Mender and Affiliates do not warrant that the Mender 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. Mender and Affiliates will implement appropriate technical and organizational measures to ensure a level of security adapted to the risk for any personal information supplied by you.
Notwithstanding any feature a Client may use to expedite Mender selection, each Client is responsible for determining the Service and selecting their Provider and Mender does not warrant any goods or services purchased by a Client and does not recommend any particular Provider. Mender does not provide any warranties or guarantees regarding any Provider’s ability, professional accreditation, registration or license.
(b) No Liability
You acknowledge and agree that Mender is only willing to provide the Mender Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Mender 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 Mender 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 Mender and Affiliates, and any destruction of your User Generated Content. YOU AGREE TO WAIVE THE BENEFITS OF CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
UNDER NO CIRCUMSTANCES WILL MENDER AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR, AND YOU HEREBY RELEASE MENDER AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM 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 MENDER, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR ATTORNEYS FEES AND COSTS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE MENDER PLATFORM OR THE PROVIDER SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN SUCH CASES THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY BUT SHALL APPLY TO THE EXTENT ALLOWED BY APPLICABLE LAW.
MENDER AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS MENDER PLATFORM. MENDER AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE MENDER PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT MENDER 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 MENDER (IF YOU ARE A CLIENT) OR TOTAL SERVICE PAYMENTS PAID TO YOU BY CLIENTS (IF YOU ARE A PROVIDER), DURING THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless Mender and Affiliates from and against any and all Liabilities arising from or in connection with (i) your use or inability to use, or your participation on, the Mender Platform; (ii) your participation in Services, or your ability or inability to perform or obtain the performance of Services or to receive payment therefore; (iii) your breach or violation of this Agreement; (iv) your violation of any law, or the rights of any User or third party; (v) your failure to abide by your representations and warranties in Section 2; (vi) any content submitted by you or using your account to the Mender Platform, including but not limited to the extent such content may infringe on the intellectual property rights of a third party or otherwise be illegal or unlawful; (vii) if you are a Provider, the acts or omissions of any Provider Assistants; and (viii) if you are a Client, the acts or omissions of any Client’s Agents. Mender reserves the right, in its own sole and absolute 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 Mender.
16. Informal Dispute Resolution
To expedite resolution and reduce the cost of any dispute, controversy or claim related to, arising from or regarding your use of the Mender Platform, your relationship with Mender, Services, or this Agreement (including previous versions), (“Dispute”), you and Mender agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least 30 days before initiating any out of court settlement, arbitration, or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is the one associated with your account, with an email copy to the email address you have provided to Mender. Mender’s address for such notice is email@example.com Attention: Legal.
PLEASE NOTE: FOR MORE INFORMATION ABOUT DISPUTE RESOLUTION TERMS, PLEASE REVIEW SECTION 30 BELOW).
17. App Store Sourced Apps
The following applies to any App accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"):
You acknowledge and agree that (i) the Agreement is entered into between you and Mender only, and Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) Mender, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Mender and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Mender, subject at all times to warranty limitations and exclusions set forth in this Agreement.
You and Mender acknowledge that, as between Mender and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Mender acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Mender and Apple, Mender (and not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, though only to the extent required by this Agreement.
You and Mender acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
18. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
19. General Provisions
Failure by Mender 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 Mender with respect to its subject matter, and supersedes and governs any and all prior agreements or communications except as otherwise specified in the Arbitration Agreement in Section 30. 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” provision in Section 30 below, 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. You hereby acknowledge and agree that 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. Upon the effective date of the assignment of the Agreement (a) Mender shall be relieved of all rights, obligations and/or liabilities to you arising in respect of events postdating the effective date of the assignment and, (b) the assignee entity shall replace Mender for the performance of this Agreement. This Agreement may not be assigned or transferred by you without our prior written approval. Any assignment in violation of this Section shall be null and void. This Agreement will inure to the benefit of Mender, its successors and assigns.
Providers alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Services. Indeed, certain types of Services and services may be prohibited altogether, and it is the responsibility of Providers to avoid such prohibited Services and services. Penalties may include fines or other law enforcement. If you have questions about how national/ state/ provincial/ territorial and local laws apply to your Services and services on the Mender Platform, you should first seek appropriate legal guidance.
Because Mender does not supervise, scope, direct, control, or monitor a Provider’s work or performance of Services, Clients must determine for themselves whether a Provider is qualified to perform the specific Service at hand. Clients may wish to consult their national/state/provincial/territorial or local requirements to determine whether certain Services are required to be performed by a licensed or otherwise registered professional. Clients may also wish to discuss with their Provider any specific hazards, obstacles, or impediments in the Service location (both visible and concealed) that may impact the performance of the Service.
21. Changes to this Agreement and the Mender Platform
22. No Rights of Third Parties
The provisions of this Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and they will not be construed as conferring any rights to any third party (including any third party beneficiary rights except as set forth in Section 17) or to give any person or entity other than the User any interest, remedy, claim, liability, reimbursement, claim of action or any other claim of action with respect to or in connection with any agreement or provision contained herein or contemplated hereby. None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement, provided, however, that a Client’s Agent may act in the name of and on behalf of his/her Client.
23. 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 email or by posting Notices on the Sites. You agree that all Notices that we provide to you electronically satisfy