1. Acceptance Of Terms
PLEASE REVIEW THE TOU CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THE TOU ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOU, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE TOU, YOU MAY NOT ACCESS OR USE THE SERVICE, AND YOU MUST UNINSTALL ANY COMPONENTS OF THE SERVICE FROM ANY DEVICE OWNED OR CONTROLLED BY YOU. THE TOU REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOU OR YOUR ACCESS TO OR USE OF THE SYSTEM, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOU (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 21 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you are: (i) over eighteen (18) years of age or the age of majority in your jurisdiction, whichever is greater; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Service under the laws of your country of residence or any other applicable jurisdiction.
2. Other Agreements
3. Grant of Rights
(a) Jolly grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and view pages within the Service. (b) To the extent that the Service provides access to any online software, applications or other similar components, Jolly grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only within the Service and only in the form found within the Service. (c) Jolly grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install, run and use the Mobile Apps on a mobile device that you own and control, in executable, machine-readable, object code form only. (d) All rights granted to you under this TOU are subject to your compliance with the TOU and all Additional Terms in all material respects and may only be exercised by you for your personal, non-commercial use or internal business purposes.
4. IOS Mobile Apps
(a) If any Mobile App is downloaded by you from the iTunes App Store (each, an “iOS Mobile App”), the license in Section 3(c) with respect to such iOS Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service. (b) With respect to any iOS Mobile App, you and Jolly acknowledge that the TOU is concluded between you and Jolly only, and not with Apple Inc. (“Apple”), and Apple is not responsible for iOS Mobile Apps and the contents thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to iOS Mobile Apps. Jolly, not Apple, is responsible for addressing any claims from you or any third party relating to iOS Mobile Apps or your possession and/or use of iOS Mobile Apps, including product liability claims, any claim that iOS Mobile Apps fail to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation. Apple and Apple’s subsidiaries are third-party beneficiaries of the TOU with respect to iOS Mobile Apps, and Apple shall have the right (and will be deemed to have accepted the right) to enforce the TOU against you as a third-party beneficiary hereof with respect to iOS Mobile Apps. Jolly, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to iOS Mobile Apps.
5. Third-Party Software
Some components of the Service may be provided with or have incorporated into them third-party software licensed under open source license agreements or other third-party license terms (“Third-Party Software”). You acknowledge and agree that: (a) Jolly has no proprietary interest in any Third-Party Software; (b) notwithstanding anything to the contrary, any Third-Party Software is provided “as is,” “as available,” with all faults, and neither the licensor of Third-Party Software nor Jolly shall be liable for any direct, indirect, incidental, special, punitive or consequential damages, or lost profits or cost of cover, relating to or arising from Third-Party Software, including any access to or use of Third-Party Software; and (c) Third-Party Software may be subject to separate terms and conditions set forth in the respective license agreements relating to such software.
Except as explicitly agreed by Jolly in any applicable Additional Terms, Jolly is not obligated to provide you any support for the Service, and the TOU does not entitle you to any support for the Service.
7. Personal Information; Registration; Account
(b) Jolly may enable you to access and browse the Service without registering, but some features may not be accessible unless you register. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Jolly reasonably suspects that you have done so, Jolly may suspend or terminate your account. (c) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use or user, and regardless of your knowledge of such use. You agree to notify Jolly immediately of any unauthorized use of your account or password or any other similar breach of security. (d) If your account remains inactive for six months or longer, Jolly reserves the right to suspend or terminate your account, with or without notice to you, and delete your Content (as defined in Section 8(a)), all without liability to you.
8. Responsibility For Content
(a) You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Jolly, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Jolly, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”). (b) You acknowledge and agree that Jolly has no obligation to pre-screen Content (including Your Content and User Content), although Jolly reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Jolly shall have the right to remove any Content that violates the TOU or that it deems objectionable. (c) To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the TOU with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party.
9. Rights To Content
(a) Jolly does not claim ownership of Your Content. However, you grant Jolly and its service providers a perpetual, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to (i) provide access to the Service to you and other users (including any maintenance and support); (ii) monitor and improve the Service; and (iii) syndicate aspects of the Service, including Your Content. Jolly has the right, without payment to you or others, to serve ads near Your Content, and your social actions may be visible and included with the ads. To the extent you have made Your Content accessible to others through the Service, you acknowledge and agree that Jolly may continue to make Your Content accessible to others through the Service even after you have deleted your user account or the applicable portion of Your Content from your user account. (b) You acknowledge and agree that Jolly may collect or generate Aggregate Data in connection with providing you with access to the Service, and you hereby grant Jolly and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose. “Aggregate Data” means Your Content that has been aggregated in a manner that does not reveal any personally information about you and cannot reasonably be used identify you as the source of such data. (c) You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices. (d) Except with respect to Your Content, you acknowledge and agree that, as between you and Jolly, Jolly owns all rights, title and interest (including all intellectual property rights) in the Service and all Content and other materials within the Service. The Service is protected by U.S. and international copyright, trademark, patent and other intellectual property laws and treaties. Jolly reserves all rights not expressly granted to you. (e) Except with respect to Your Content, you may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service, except as expressly permitted under the TOU; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service; (iii) frame or utilize any framing techniques to enclose any Content; (iv) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by Jolly; (v) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; (vi) remove or obscure any proprietary notice that appears within the Service; or (vii) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
10. User Conduct
In connection with your access to or use of the Service, you shall not: (a) upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate. (b) impersonate any person or entity, including Jolly personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity; (c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service; (d) act in a manner that negatively affects the ability of other users to access or use the Service; (e) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure; (f) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (g) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service, or substantially download, reproduce or archive any portion of the Service; (h) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including your user account and password; or (i) violate any applicable local, state, provincial, federal or international law or regulation.
11. Fees and Memberships
If you elect to provide or make available to Jolly any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), Jolly shall be free, and you hereby grant Jolly a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license, to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
13. Dealings With Advertisers And Other Third Parties
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Service, including payment for and delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third party. You agree that Jolly shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
14. Links And External Materials
15. Modifications To The Service
Subject to any Additional Terms, Jolly reserves the right to modify, suspend or discontinue the Service or any product or service to which it connects, with or without notice, and Jolly shall not be liable to you or to any third party for any such modification, suspension or discontinuance. Jolly may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service or related services (“Updates”). Jolly may develop Updates that require installation by you before you continue to access or use the Service or related services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.
You shall indemnify, defend and hold Jolly and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Jolly Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of: (a) Your Content; (b) your violation of the TOU, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Service.
17. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JOLLY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (b) JOLLY PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE. (c) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
18. LIMITATION OF LIABILITY
(a) THE JOLLY PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE JOLLY PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE JOLLY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO JOLLY FOR ACCESS TO THE SERVICE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE. (b) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) Subject to the Additional Terms, if you violate the TOU, all rights granted to you under the TOU shall terminate immediately, with or without notice to you. (b) If you are accessing the Service pursuant to an Enterprise Agreement, then any rights granted to you under this TOU terminate upon termination of the Enterprise Agreement for any reason. (c) Upon termination of the TOU for any reason: (i) you must immediately uninstall and cease using the Service; (ii) Jolly, in its sole discretion, may remove and discard Your Content and delete your user account; (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOU shall survive such expiration or termination; and (iv) all rights granted to you under the TOU shall immediately terminate, but all other provisions shall survive termination.
20. Governing Law
The TOU shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.
21. BINDING ARBITRATION AND CLASS ACTION WAIVER
ALL CLAIMS (AS DEFINED IN THE PREAMBLE) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THE TOU AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
WE EACH AGREE THAT ALL CLAIMS (AS DEFINED IN THE PREAMBLE) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS AND EXPRESSLY WAIVE ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 21 REQUIRING BINDING ARBITRATION SHALL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
Notwithstanding anything to the contrary, you and Jolly may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 21.
If Jolly implements any material change to this Section 21, such change shall not apply to any Claim for which you provided written notice to Jolly before the implementation of the change
22. Legal Compliance
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country; or (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
23. U.S. Government Entities
This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOU with respect to such items, and any access to or use of the Service by the United States Government constitutes: (a) agreement by the United States Government that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (b) acceptance of the rights and obligations herein.
24. No Third-party Beneficiaries
You agree that, except for Jolly Parties and as otherwise expressly provided in the TOU, there shall be no third-party beneficiaries to the TOU.
25. Procedure for Making Claims of Copyright Infringement
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Jolly’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Jolly’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims · Servable, Inc. d/b/a Jolly, Inc. · 111 Congress Ave., 4th Floor, Austin, TX 78701 · Phone: (512) 537-1810 · Email: email@example.com
26. California Users & Residents
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
27. General Provisions
The TOU (together with the Additional Terms) constitutes the entire agreement between you and Jolly concerning your access to and use of the Service. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Jolly with respect to such subject matter. In the event of any conflict between or among the TOU and any Additional Terms to which the TOU refers, the terms and conditions of the TOU shall take precedence and govern. The TOU may not be amended by you except in a writing executed by you and an authorized representative of Jolly. For the purposes of the TOU, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the TOU without the prior written consent of Jolly. The failure of Jolly to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of this TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU. Any prevention of or delay in performance by Jolly hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.
Servable, Inc., d/b/a Jolly (“Jolly”, “Jolly for Business,” “Jolly Pro”, “Jolly Freelancer Management System”, “Jolly FMS”, “Servable,” “our,” “us,” or “we”), a Delaware corporation, provides a proprietary platform (the “Platform”) designed to enable users to offer, sell, solicit, manage, procure, charge for, and pay for services.
These Terms of Service (this “Agreement”) shall create a legally binding agreement governing your use of the Platform.
By clicking the “I agree to Jolly’s Terms & Conditions” box upon creating an account, you agree on behalf of yourself and (if applicable) your organization (“you” or “User”), effective as of such date (the “Effective Date”), to be bound by this Agreement. You are only authorized to use the Platform if you agree to abide by all applicable laws and this Agreement. Please read this Agreement carefully and save it. If you do not agree with it, you should discontinue use of the Platform immediately.
1. Provision of the Platform
Subject to the terms and conditions of this Agreement, Jolly agrees to provide you with access to the Platform. You agree to cooperate with Jolly as may be reasonably required to enable the provision of the Platform hereunder.
2. User Roles
The Platform is designed to serve Users in various roles.
• “Service Providers” are users that promote, offer, provide and charge for services to other Users of the Platform. A Service Provider may use the Platform to advertise his or her services, and to offer and provide freelance or contract labor for other Users.
• “Consumers” are Users that solicit services for one or more projects from other Users. Consumers may post a service request to Service Providers on the Platform.
• In addition, Service Providers may offer and provide services and Consumers may solicit and procure services through one or more service marketplaces created and managed through the Platform. Each marketplace created on the Platform has an owner or account creator (“Owner”), and a moderator with certain administrative functions and responsibilities with respect to the marketplace (“Moderator”). The role of the Moderator may be fulfilled by the Owner, or it may be fulfilled by other Users approved and invited by the Owner. Service Providers, Consumers, Owners and Moderators are collectively referred to as “Users” in this document. Users may perform different roles in their use of the Platform. For example, a given User may be an Owner, Moderator, Consumer or Service Provider of the same service or different services in various contexts.
• Certain additional terms are applicable based on the role of the User. The “SERVICE PROVIDERS” section below applies to you only insofar as you use the Platform as a Service Provider; the “CONSUMERS” section applies only insofar as you use the Platform as a Consumer; the “OWNER” section applies only insofar as you use the Platform as an Owner; the “MODERATOR” section applies only insofar as you use the Platform as a Moderator; and the “ALL USERS” section applies to all Users.
3. Acknowledgements Regarding Jolly and the Platform
You acknowledge that Jolly is a technology provider, not a Consumer or Service Provider. Jolly is not directly involved in the transaction between Consumers and Service Providers, except to the extent that it provides the Platform as a technology that facilitate these interactions and retains a Processing Fee based on these transactions. Absent a separate written agreement for the provision of services, Jolly does not use the Platform to provide or acquire any services for itself or on behalf of others. User acknowledges that nothing in this Agreement, and no transaction conducted through the Platform, shall in any way be construed to establish any User as an agent, employee, independent contractor or representative of Jolly, unless otherwise indicated by Jolly in writing.
4. Independent Contractors and Employees
User acknowledges that the Platform is designed to be used by individual and organizational Consumers and Service Providers that are acting as independent contractors of such Consumers. The Platform is not designed to be used by employers to pay their employees. If an employer nonetheless uses the Platform to schedule and manage its employees, the employer User represents and warrants that it shall not use the Platform for payroll purposes. All Users are responsible for ensuring that they comply with all applicable employment laws in connection with their use of the Platform.
TERMS APPLICABLE ONLY TO SERVICE PROVIDERS
5. Service Provider Eligibility
In order to qualify as a Service Provider, you must: (i) maintain current licensing, certification or other requirements and qualifications in your jurisdiction that are applicable to the type of services you offer, or that are otherwise required or imposed by any industry standards organization or any applicable federal, state or local government, (ii) not make any false statements or misrepresentations with respect to your services, and (iii) comply with any requirements imposed by any Owner or Moderator of a marketplace where your services are listed and any requirements imposed by any Consumer with which you communicate, or from whom you request or receive services, buy or sell services, or otherwise transact business via the Platform.
6. Service Provider Promises
As a Service Provider, you agree to comply with all applicable law at all times and to perform you services in a professional and workmanlike manner in accordance with our Code of Conduct and prevailing industry standards.
7. Service Provider Acknowledgements
You agree to furnish all materials necessary to undertake your obligations and responsibilities, and shall incur all expenses associated with your provision of services. It is your sole responsibility to ascertain and maintain an appropriate and desired level of insurance. You acknowledge that Jolly is not responsible for and shall not be liable for actions taken or promises made by Consumers, Owners or Moderators. In addition, you accept all risks related to interacting with and transacting with Consumers, Owners or Moderators.
You acknowledge and agree that you are obligated to report as income any compensation received by you pursuant to transactions conducted through the Platform, and you are solely responsible for paying all self-employment and other Taxes (defined below) thereon. You are solely responsible for determining whether any such Tax is applicable, calculating the same and remitting it to the applicable authority, and for including any applicable taxes that you determine are necessary to remit/report in any fees that you charge to Consumers (to the extent you want the Consumers to bear or share the burden of any such amount).
9. Payments; Processing Fees
In order to become a Service Provider for paid services, you must provide a valid payout account (either a debit card or bank account) in order to receive the funds when a Consumer makes a payment in connection with the Platform. Jolly is not responsible for ensuring that Services Providers are paid by the applicable Consumers and Jolly does not guarantee any Service Provider will be paid for any services provided, regardless of Consumer satisfaction with said services; however, Jolly does guarantee payments to Service Providers for such amounts that have been successfully received by Jolly or its agent from the Consumer in accordance with the rates and fee settings configured by the Service Owner. Subject to the foregoing, Service Providers solely accept all risks related to interacting with and transacting with Consumers. If a Consumer fails to pay Service Provider for services received in connection with Platform, Jolly may, in its sole discretion pay Service Provider for such services but is not obligated to do so. You expressly authorize Jolly's service providers, which, depending on your account type may include Stripe, Inc. and/or Dwolla, Inc., to originate credit transfers to your financial institution account.
TERMS APPLICABLE ONLY TO CONSUMERS
10. Consumer Promises
As a Consumer, you agree that you will: (i) as a condition to requesting paid services from Service Providers, connect your Jolly account with a valid, unexpired credit card, bank account or other authorized payment method (“Payment Method”) and ensure that such Payment Method remains updated, valid and authorized at all times during the term of this Agreement, (ii) pay for any Service Provider services that you request via the Platform, and (iii) comply with all applicable law at all times. You are responsible for ensuring that you meet the requirements imposed by any Owner or Moderator of a marketplace or by any Service Provider with which you transacts business via the Platform.
11. Consumer Acknowledgements
You acknowledge that Jolly has no responsibility and makes no guarantees regarding Service Providers or their service offerings. As between Jolly and Service Providers, Service Providers are solely responsible for all aspects of any services provided. Consumer further acknowledges that Jolly retains a portion of the payments made for paid services, but solely as a Processing Fee for facilitating the transactions and payments envisioned hereby, and not as payment for the services. Jolly does not endorse any Service Providers listed on the Platform, nor does it validate or investigate the licensing, certification or other requirements and qualifications of Service Providers. It is your responsibility to investigate Service Providers from whom you request and receive services. You acknowledge and agree that Jolly shall not be liable for any losses, costs, damages or claims in connection with, arising from or related to your use of a Service Provider's services. Jolly does not guarantee that any Service Provider will fulfill any contract for any transaction enabled via the Platform. Consumer solely accepts all risks related to interacting with and transacting with Service Providers.
Consumer hereby authorizes Jolly to charge its Payment Method on file with the fees associated with paid services it receives via the Platform. Consumer acknowledges that, should it dispute any charge that appears on a credit or debit card statement related to the use of the Platform to pay for services, any chargeback for such charge shall apply to the applicable Service Provider or Owner and Jolly shall not be liable to you for such chargeback.
Any refunds or adjustments in fees in connection with services provided by a Service Provider will be made to the applicable Payment Method. In the case of service marketplaces, the Moderator will be responsible for providing refunds to the Consumer. If Jolly, in its sole discretion, provides a refund to a Consumer, we may seek reimbursement from the applicable Service Provider, Owner or Moderator.
Consumer acknowledges and agrees that as between Jolly and Consumer, Consumer shall be solely responsible for bearing the cost of any sales or comparable taxes associated with purchases it makes from a Service Provider via the Platform, which Jolly requires the Service Provider to include in the fees for its services. Jolly anticipates that the payment settlement entity or the electronic payment facilitator will file any required Forms 1099-K in respect of payments made to Service Providers, however we encourage each Consumer to consult with his or her personal financial and/or tax advisor to determine whether Consumer needs to file any forms with the Internal Revenue Service with respect to the services performed by Services Providers to whom Consumer pays via the Platform.
TERMS APPLICABLE ONLY TO OWNERS
15. Owner Promises
As an Owner, you agree that you will: (i) maintain current licensing, certification or other requirements and qualifications that are applicable in your jurisdiction in order to operate the services marketplace, (ii) not make any false statements or misrepresentations with respect to the marketplace or the services offered in connection therewith, (iii) ascertain and maintain an appropriate and desired level of insurance, (iv) ensure and verify that Service Providers are maintaining appropriate levels of insurance, and possess the appropriate skills levels, capabilities, and appropriate licensing, certification, continuing education, and other requirements, (v) maintain a high level of quality with respect to your marketplace and proactively moderate and resolve any disputes among Users of your marketplace.
In order to receive payments as a marketplace Owner, you must provide a valid payout account (either a debit card, bank account or PayPal account) in order to receive any applicable fees (such as a service fee or booking fee) when a Consumer makes a payment in connection with the Platform.
17. No Exclusivity
As a marketplace Owner, you agree not to require Service Providers to provide their services exclusively on your marketplace or include any requirement that Users not circumvent your marketplace in their interactions and transactions with other Users.
TERMS APPLICABLE ONLY TO MODERATORS
18. Moderator Eligibility
In order to fulfill a Moderator role, you must (i) maintain any applicable licensing, certification or other requirements and qualifications in your jurisdiction in connection with your role as a Moderator, or that are otherwise required imposed by any industry standards organization or any applicable federal, state or local government or agency thereof, (ii) not make any false statements or misrepresentations with respect to the marketplace or the services offered in connection therewith, (iii) ascertain and maintain an appropriate and desired level of insurance, and (iv) comply with any requirements imposed by any Owner of the applicable marketplace.
19. Moderator Promises
As a Moderator, you agree to comply with all applicable laws at all times and to perform your Moderator role in a professional and workmanlike manner in accordance with our Code of Conduct and prevailing industry standards.
TERMS APPLICABLE TO ALL USERS
20. Conditions of Eligibility
In order to be a User of the Platform, you must be at least 18 years of age. If Jolly has previously removed you as a User or terminated your account, you are not eligible to become a User under this Agreement.
21. Age Restrictions
We do not intentionally collect personal information from children through our Service. Thus, as a condition to becoming a User, you represent and warrant to us that you are at least 18 years of age or older.
22. Code of Conduct
You agree to conduct yourself at all times in accordance with our Code of Conduct, which restricts certain types of activities in connection with the Platform.
23. Payment Providers
We use two third party payment providers, Stripe and Dwolla, to charge Consumer Payment Methods and otherwise collect and transmit fees and payments in connection with the Platform. All payments transmitted in connection with the Platform are subject to the conditions of the third party payment service provider's terms of service and privacy policies, the current versions of which are available at these links:
If you are a Service Provider in a service marketplace that uses our payment functionality, you expressly authorize Servable's service provider, Dwolla, Inc. to originate credit transfers to your financial institution account.
Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service, here:
You authorize Jolly to share your identity and account data with Dwolla for the purposes of opening and supporting your Dwolla account, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla account through Jolly's application, and Dwolla account notifications will be sent by Jolly, not Dwolla. Jolly will provide customer support for your Dwolla account activity, and can be reached at www.jollyhq.com, firstname.lastname@example.org or (512) 537-1810.
24. Restrictions on Use of the Platform
The Platform may only be used in connection with the provision of services by Service Providers and not for transferring money or providing tangible goods or other products, whether physical or digital. Except as expressly permitted herein, you may not: (i) rent, lease, lend, sell, redistribute, or sublicense the Platform; (ii) modify, disassemble, de-compile, reverse engineer, or otherwise attempt to derive the source code of the Platform or knowingly permit or encourage any third party to do so (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Platform), (iii) use the Platform in any manner to provide service bureau, time-sharing or other computer services to third parties, (iv) use the Platform, or allow the transfer, transmission, export, or re-export of the Platform or portion thereof in violation of any export control laws or regulations administered by any government agency, or (v) resell, distribute or otherwise transfer the Platform, and code comprising the same, or any Jolly trademark, logo or likeness. Any attempt to do so is a violation of the rights of Jolly and its licensors. You may not use the Platform for any use other than its intended use.
25. Service- or Marketplace-Specific Terms
The Platform may allow Owners, Moderators or Service Providers to establish certain terms and conditions with respect to specific services or service marketplaces. Such terms and conditions, as supplemented by applicable law, shall comprise the terms applicable to any given service, or any given marketplace. Users agree to abide by such terms and conditions, as applicable.
26. Third-Party Services and Materials
Aside from connecting you with other Users, the Platform may enable access to third-party products and services (collectively and individually, “Third-Party Services”). Use of Third-Party Services may require your acceptance of additional terms of service. You agree to comply with any such terms. Further, information you make available to Third Party Services is subject to the privacy policies of such third parties. You agree that you will use the Third Party Services at your sole risk. The Platform and/or Third-Party Services may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Materials”), or provide links to third-party websites. You acknowledge and agree that Jolly is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. Jolly does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Services, Third-Party Materials or websites.
We reserve the right to charge a subscription fee to any User based on their usage of the Platform, which fee may be imposed once certain thresholds are met in accordance with our then current fee schedule, the latest of which may provided by Jolly, at our sole discretion, after you have completed a Demo. In addition, in connection with paid services provided via the Platform, you agree that we may retain (and hereby authorize us to deduct) a processing fee (“Processing Fee”). The Processing Fee may be paid by the Service Provider or the Consumer, depending on the terms agreed to among the Service Provider, Consumer and, if applicable, marketplace Owner or Moderator.
28. Payment Terms
User hereby authorizes Jolly to charge the Payment Method on file with its account for all applicable fees, which may include without limitation (depending on the service) Processing Fees, booking fees, subscription fees, gratuities, chargebacks or refunds, and any other applicable fees. All fees are due and payable in U.S. dollars. Each User is solely responsible for determining what, if any, taxes or fees apply in connection with such User’s use of the Platform, including with respect to any services provided or received in connection therewith (“Taxes”). Further, each User is responsible for assessing, collecting, reporting, and remitting Taxes to the appropriate tax and revenue authorities. User agrees to indemnify Jolly and hold Jolly harmless from any claim relating to any such Taxes. Jolly does not offer Tax-related advice; for questions about your Tax liability, you must contact your own attorney, accountant or tax advisor. Unless otherwise indicated, all fees are non-refundable. If payment is not made on the respective due date, Jolly may, at its discretion and in addition to other remedies it may have, (i) charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly, and (ii) suspend your access to the Platform.
29. IP Ownership
• Reservation of Rights. Jolly shall own and retain ownership of all right, title, and interest in and to: (i) the Platform, (ii) any ideas, suggestions, or feedback relating to the Platform (“Feedback”); (iii) all modifications or derivative works to any of the foregoing; and (iv) all intellectual property rights embodied within any of the foregoing. User hereby irrevocably assigns all of User’s right, title, and interest in and to any of the foregoing to Jolly.
• Content. User may input or upload text, images, photos, videos, sounds, links, works of authorship, or other materials to the Platform (collectively, “Content”). Jolly does not claim ownership of User’s Content. By posting or sharing the Content, User grants to Jolly only the limited rights that are reasonably necessary for Jolly to provide the Platform to User. User represents and warrants that: (i) User owns User’s Content or otherwise have the right to grant the license set forth in this section, and (ii) transmitting User’s Content on or through the Platform does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity. User shall only collect, process, use, store, disclose and transfer Content in compliance with any applicable law, applicable third-party terms, privacy policies or other contractual obligations. It is User’s sole responsibility to back-up its Content. User acknowledges and agrees that after termination of this Agreement, User may not have access to the Content via the Platform.
• Data Ownership. User shall own all right, title, and interest in and to any data that is collected by Jolly from User in connection with its use of the Platform (“Data”). User grants to Jolly a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use such Data in order to provide the Platform to User and as necessary to monitor and improve the Platform. Additionally, you agree that Jolly may use the Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such Data (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that Jolly collects or generates Blind Data, such Blind Data will be owned solely by Jolly and may be used for any lawful business purpose without a duty of accounting to User, provided that such data is not personally identifiable and does not identify the source of such data. It is your sole responsibility to back-up your Data and you agree and acknowledge that post termination or expiration of this Agreement, you may not have access to the Data via the Platform.
• Data Privacy Laws. User acknowledges and agrees that the Platform stores data on servers in the U.S. or any other country in which Jolly or its affiliates, subsidiaries, agents, vendors or contractors maintain facilities. User agrees, not to provide Jolly with any data that: (i) could be deemed “sensitive personal data” under the EU Data Protection Directive 95/46/EC, (ii) is subject to the laws of any jurisdiction, or (iii) subject to the requirements of any industry or standards setting organization, in each case that would subject such data to heightened restrictions related to the storage, security, transmission and processing of such data (including without limitation data subject to the requirements of the Health Insurance Portability and Accountability Act (HIPAA), the PCI Security Standards Council (PCI-DSS) or the Children’s Online Privacy and Protection Act (COPPA)). User shall comply with all laws, rules, regulations, requirements and standards applicable to it as a provider of information technology services, including without limitation all obligation imposed upon User or its customers under any applicable data privacy laws, rules, regulations, requirements or standards.
31. Term and Termination
Unless earlier terminated, this Agreement will commence on the Effective Date and will continue until either party terminates this Agreement as set forth herein. Either party may terminate this Agreement if the other party is in material breach of any term of this Agreement, and the breach is not cured in the 30-day period following notice of the breach. User may cancel its account and terminate this Agreement at any time by contacting Jolly. Such cancellation will be effective, and this Agreement will terminate, 30 days after Jolly receives notice of such cancellation. In addition, Jolly may reject, suspend or cancel any account at any time (with or without notice) and for any reason. Upon termination of this Agreement, User shall immediately cease all use of and all access to the Platform. Sections 23-24, 27-28 (as to amounts owed as of termination) and 29-40 shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect.
32. Warranty Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT WARRANT AGAINST LOSS OF DATA OR CONTENT, INTERFERENCE WITH USER’S ENJOYMENT OF THE PLATFORM, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED OR PROVIDED BY THE PLATFORM WILL MEET USER’S REQUIREMENTS, THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
33. Assumption of Risk; Disputes Among Users
EACH USER ACCEPTS ALL RISK ASSOCIATED WITH ITS INTERACTIONS AND TRANSACTIONS WITH OTHER USERS OF THE PLATFORM, AGREES TO LOOK SOLELY TO SUCH OTHER USERS FOR ANY CLAIM, DAMAGE OR LIABILITY ASSOCIATED WITH ANY TRANSACTION COMMISSIONED VIA THE PLATFORM, AND EXPRESSLY WAIVES AND RELEASES JOLLY FROM ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF ANY ACT OR OMISSION OF ANY SUCH USER, INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO PERSONAL INJURY OR DESTRUCTION OF PROPERTY. In the case of any service marketplace, the applicable Moderator will be responsible for monitoring disputes among Users and Users will look solely to such Moderators in connection with any such dispute. Jolly reserves the right, but has no obligation, to monitor disputes between Users.
• Jolly Indemnity. Jolly shall defend User from and against all claims, demands, suits or proceedings made or brought by a third party (“Claims”) to the extent alleging that the Platform (excluding third-party software) infringes or misappropriates such third party’s intellectual property rights, and shall indemnify and hold User harmless from any damages, attorney fees and costs finally awarded against User or agreed upon in settlement of such Claims (“Losses”); provided that User: (i) promptly provides Jolly with written notice of the Claim, (b) gives Jolly sole control of the defense and settlement of the Claim (provided that Jolly will not settle any Claim unless it unconditionally releases User of all liability), and (iii) gives Jolly all reasonable assistance, at Jolly’s expense. If Jolly receives information about an infringement or misappropriation Claim related to the Platform, Jolly may in its discretion and at no cost to User: (a) modify the Platform so that it is no longer infringing or misappropriating, (b) obtain a license for the continued use of the Platform, or (c) terminate User’s account and access to the Platform upon 30 days written notice. The forgoing indemnification obligations do not apply to the extent a Claim arises from User’s Content, software or services provided by third parties (including other Users) or the use of the Platform in violation of this Agreement.
• User Indemnity. User shall defend Jolly and its subsidiaries, affiliates, Users, officers, directors, agents and employees from and against all Claims arising out of or in connection with User’s use of the Platform (including, but not limited to, violation of this Agreement and/or our Code of Conduct), and shall indemnify Jolly from all Losses; provided that Jolly: (a) gives User sole control of the defense and settlement of the Claim (except that User may not settle any Claim unless it unconditionally releases Jolly of all liability), and (b) gives User all reasonable assistance, at User’s expense.
35. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL JOLLY BE LIABLE FOR (a) PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PLATFORM, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF JOLLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (b) ANY DAMAGES WHATSOEVER ARISING OUT OF TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES THROUGH THE PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL JOLLY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY JOLLY) EXCEED THE GREATER OF (I) THE TOTAL PROCESSING FEES RETAINED BY JOLLY IN CONNECTION WITH THE APPLICABLE SERVICES THAT ARE THE SUBJECT OF THE CLAIM, IF ANY, IN THE MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (II) $100.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
36. Dispute Resolution
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, USA, without regard to any principles of conflict of laws. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) the arbitration will be conducted by a single arbitrator, (b) the fees of the arbitrator shall be equally borne (50/50) by the parties, and (c) the proceedings shall be in the English language and shall take place in Austin, Texas or another location reasonably convenient to both parties. The arbitrator shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Each party may seek injunctive relief in any court of competent jurisdiction. You and Jolly agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis.
37. Copyright Policy
If you believe that your work has been copied and posted on the Platform in a way that constitutes copyright infringement, please send our copyright agent a notice of infringement with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where the material that you claim is infringing is located on the Platform; (d) your address, telephone number, and primary email address; (e) a written 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; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. You may file a notice of infringement with our designated Copyright Agent.
It is our policy to respond to notices of alleged copyright infringement that comply with the requirements of the Digital Millennium Copyright Act (“DMCA”). Our designated Copyright Agent to receive DMCA communications (including notices and counter-notices of alleged infringement) is: Attn: Copyright Agent, James Stephens, Servable, Inc., 603 Deep Eddy Ave, Austin, TX 78703, Email: email@example.com, Phone: 512-537-1810
Upon receipt of a proper DMCA notice of infringement, we will promptly remove or disable access to the content that is the subject of the notice. It is our policy in appropriate circumstances to suspend, disable or terminate, without notice and in our sole discretion, the accounts of those users that we determine to be “repeat infringers.”
Jolly may freely transfer or assign this Agreement and any of its rights or obligations hereunder. User shall not assign this Agreement, directly or indirectly without the prior written consent of Jolly. Any such attempted assignment shall be void.
39. Modifications to the Terms of Service
We may modify the terms of this Agreement from time to time. Any modification shall be effective when we notify you of the modification (via an update delivered through the Platform or via email or other notification) and you signify your acceptance (via an electronic click-to- accept method or if you continue to use the Platform after such notification).
40. Miscellaneous Terms
Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, illegal acts of third parties, failure of the public Internet or changes in the accessibility of third party websites, power outages, collisions of celestial bodies (natural or artificial), labor disputes or governmental demands or restrictions (“Force Majeure Event”). If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, whether in writing or oral, with respect to the subject matter of this Agreement.