These Terms of Service constitute a legally binding agreement (the "Agreement") between you and ActivNow Corporation (ActivNow), its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "ActivNow," "we," "us" or "our") governing your use of the ActivNow application, website, and technology platform (collectively, the "ActivNow Platform").
By entering into this Agreement, and/or by using or accessing the ActivNow Platform you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE ACTIVNOW PLATFORM OR ANY OF THE SERVICES PROVIDED THROUGH THE ACTIVNOW PLATFORM. If you use the ActivNow Platform in another country, you agree to be subject to ActivNow's terms of service for that country.
The ActivNow Platform provides a marketplace for users who seek to participate in an athletic activity or sport, provide couching services, or compete in an activity or sport. It allows individuals to schedule or participant in an activity based on their interests and personal preferences. Users scheduling an activity can setup a casual and open activity where other users can freely request to join; or a coaching activity where other users have to pay for the coaching service; or a competitive activity where all players must pay to participate and the payments are distributed to the winning teams as a reward. The marketplace enables people in participate in the gig-economy or for free in interests of their choice. The ActivNow Platform facilitates the scheduling, tracking, and managing of such atheletic activities, and promotion of a healthy and safe community.
Participants are collectively referred to herein as "Users." Any decision by a User to offer or accept an activity or service is a decision made in such User's sole discretion. Each service provided by a user to another user shall constitute a separate agreement between such persons.ActivNow reserves the right to modify the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. ActivNow reserves the right to modify any information on pages referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the ActivNow Platform after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The ActivNow Platform may only be used by individuals who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein. The ActivNow Platform is not available to Users who have had their User account temporarily or permanently deactivated. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account. To use the ActivNow Platform, each User shall create a User account. Each person may only create one User account, and ActivNow reserves the right to deactivate any additional or duplicate accounts.
By becoming a User, you represent and warrant that you are at least 18 years old. Notwithstanding the foregoing, if you are the parent or legal guardian of a 13+ year old minor you may create a ActivNow account for such minor to use the ActivNow Platform subject to the following requirements and restrictions: (a) you ensure that the minor's use of the ActivNow Platform is under your supervision, guidance, and protection, (b) you ensure that the minor does not request or accept any services unless accompanied by you or an authorized guardian, and (c) you expressly guarantee the minor's acceptance of the terms of this Agreement. You will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor user.
By creating an ActivNow account for such minor, you hereby give permission and consent to the Agreement on the minor's behalf, and you shall assume any and all responsibility and liability for the minor's use of the ActivNow Platform as provided by the terms of this Agreement and any applicable Supplemental Agreements. You will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor.
As a user, you understand that request or use of coaching or competitive in the platform may result in charges to you ("Charges"). Charges for services include applicable fees, surcharges, and taxes, plus any tips to the service provider that you elect to pay. ActivNow has the authority and reserves the right to determine and modify fees. Pricing is set by the user hosting the activity, and the ActivNow platform service fee is deducted from the set price. You are responsible for reviewing the price quote within the ActivNow app and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
Costs. There are three types of costs: session, package, and free.
Session Cost. Each coaching or competitive activity has an individual session cost set by the owner or host of the activity. This cost applies to only one instance of the activity, in the case where an activity is recurring. In a coaching activity, each participant excluding the host pays the cost set, and the coach receives the payment minus ActivNow platform usage fees. In a competitive activity, each participant including the host pays the cost set, and payouts are distributed on the winner has been elected and approved by all team by setting the scores. The payout is rewarded to the winning team, minus ActivNow platform usage fees.
Package Cost. Each coaching activity has a package fee set by the owner or host of the activity. This cost applies to all instances of the activity for which an individual has been approved. In a coaching activity, each participant excluding the host can elect to pay the cost set, and the coach receives the payment minus ActivNow platform usage fees.
Free. An activity that has no payment requirement is free for participants. The host or owner of the activity that has set his/her activity as free must not request any payment for the activity, nor must any participant pay for participating.
General
No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the ActivNow Platform, any disruption to the ActivNow Platform, or any other reason whatsoever.
Sports competitions based on games of skill offer participants a chance to compete based on their abilities. ActivNow is a platform that enables players with the opportunity to connect for 1-on-1 or multi-player team games with the ability to compete for cash prizes. Sports games enabled by ActivNow make the distinction of being games of skill, not games of chance. Thus, ActivNow games and tournaments are legal in most areas of the United States. Any competition that is planned in an area that does not allow skill-based competitions for cash prizes would be considered void, as players must NOT select an award option when engaging in any sports competitions in those areas.
Cash-based tournaments in games of skill or ability are not considered gambling, as the outcome is NOT determined on the basis of chance. This distinguishes the generally accepted definition of gambling, which involves three things: (1) the award of a prize, (2) entrants paying to compete, and (3) an outcome determined on the basis of chance. With the absence of any of these three elements, a competition that rewards real prizes is not considered gambling. ActivNow tournaments are all based on skill and abilities, not chance, and are legal in most areas of the United States.
The Predominance Test - The predominance test is the indicator that is most commonly used to determine whether a game is skill or chance based. Under this test, one must envision a continuum with pure skill on one end and pure chance on the other. A game is classified as a game of skill if the game falls mostly closer to the skill end of the continuum.
The Material Element Test - The material element test is the second most commonly used indicator (relied upon by 8 states) to evaluate whether a game is skill or chance based. The test asks whether chance plays a material role in determining a game’s outcome. When playing a game, skill will predominate, but chance may play a material role in determining the game’s outcome.
In the United States, the legality of skill-based competitions is determined at a state level. ActivNow has taken measures to ensure that prize-based competitions are in full compliance with all the applicable laws. ActivNow prize competitions are currently valid and available in 41 U.S. states - the exceptions being: Arizona, Arkansas, Connecticut, Delaware, Louisiana, Montana, South Carolina, South Dakota, and Tennessee.
Following questions aid in evaluating whether a user is playing a game of skill or not:
ActivNow provides a platform for engaging in friendly and competitive sports, most with the option of having monetary stakes tied to the competition of players at all levels. ActivNow operates in full compliance with U.S. Federal and State laws.
All players must be at least 13 years of age to play in competitions for monetary awards on ActivNow. Anyone under the age of 18 that enters a competition on ActivNow must be doing so with the approval of a parent or legal guardian.
By entering into this Agreement or using the ActivNow Platform, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from ActivNow, and its affiliated companies, may include but are not limited to: operational communications concerning your User account or use of the ActivNow Platform, updates concerning new and existing features on the ActivNow Platform, communications concerning promotions run by us or our third-party partners, and news concerning ActivNow and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE ACTIVNOW PLATFORM OR RELATED SERVICES. YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE ACTIVNOW PLATFORM OR RELATED SERVICES.
Your Information is any information you provide, publish or post to or through the ActivNow Platform (including any profile information you provide) or send to other Users (including via in-application feedback, any email feature, or through any ActivNow-related Facebook, Twitter or other social media posting) (your "Information"). You consent to us using your Information to create a User account that will allow you to use the ActivNow Platform and participate in our Services. Our collection and use of personal information in connection with the ActivNow Platform is as provided in ActivNow's Privacy Policy. You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete information and that we and other members of the public may rely on your Information as accurate, current and complete. To enable ActivNow to use your Information for the purposes described in the Privacy Policy and this Agreement, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. ActivNow does not assert any ownership over your Information; rather, as between you and ActivNow, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information.
ActivNow, at its sole discretion, may make available promotions, referral programs and loyalty programs with different features to any Users or prospective Users. These promotions and programs, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with ActivNow. ActivNow reserves the right to withhold or deduct credits or benefits obtained through a promotion or program in the event that ActivNow determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion or program terms or this Agreement. ActivNow reserves the right to terminate, discontinue or cancel any promotions or programs at any time and in its sole discretion without notice to you.
With respect to your use of the ActivNow Platform and your participation in the services provided, you agree that you will not:
By providing coaching or competitive services on the ActivNow Platform, you represent, warrant, and agree that:
All intellectual property rights in the ActivNow Platform shall be owned by ActivNow absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the ActivNow Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information ("Submissions") provided by you to us are non-confidential and shall become the sole property of ActivNow. ActivNow shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
ActivNow and other ActivNow logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of ActivNow in the United States and/or other countries (collectively, the "ActivNow Marks"). If you provide services on ActivNow Platform, ActivNow grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the ActivNow Marks solely on the ActivNow stickers/decals, and any other ActivNow-Branded items provided by ActivNow directly to you in connection with providing the ActivNow Services ("License"). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without ActivNow's prior written permission, which it may withhold in its sole discretion. The ActivNow logo (or any ActivNow Marks) may not be used in any manner that is likely to cause confusion, including but not limited to: use of a ActivNow Mark in a domain name or ActivNow referral code, or use of a ActivNow Mark as a social media handle or name, avatar, profile photo, icon, favicon, or banner. You may identify yourself as a user or coach on the ActivNow Platform, but may not misidentify yourself as ActivNow, an employee of ActivNow, or a representative of ActivNow.
You acknowledge that ActivNow is the owner and licensor of the ActivNow Marks, including all goodwill associated therewith, and that your use of the ActivNow logo (or any ActivNow Marks) will confer no interest in or ownership of the ActivNow Marks in you but rather inures to the benefit of ActivNow. You agree to use the ActivNow logo strictly in accordance with ActivNow's Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that ActivNow determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that use the ActivNow Marks or any derivatives of the ActivNow Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by ActivNow in writing; (2) use the ActivNow Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the ActivNow Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair ActivNow's rights as owner of the ActivNow Marks or the legality and/or enforceability of the ActivNow Marks, including, challenging or opposing ActivNow's ownership in the ActivNow Marks; (4) apply for trademark registration or renewal of trademark registration of any of the ActivNow Marks, any derivative of the ActivNow Marks, any combination of the ActivNow Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the ActivNow Marks; (5) use the ActivNow Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
You agree you will not rent, lease, lend, sell, or otherwise redistribute the ActivNow Marks, or manufacture, produce, print, sell, distribute, purchase, or display counterfeit/inauthentic ActivNow Marks or (including but not limited to signage, stickers, apparel, or decals) from any source other than directly from ActivNow.
Violation of any provision of this License may result in immediate termination of the License, in ActivNow's sole discretion, a takedown request sent to the appropriate ISP, or social media platform, and/or a Uniform Domain-Name Dispute-Resolution Policy Proceeding (or equivalent proceeding). If you create any materials (physical or digital) bearing the ActivNow Marks (in violation of this Agreement or otherwise), you agree that upon their creation ActivNow exclusively owns all right, title and interest in and to such materials, including any modifications to the ActivNow Marks or derivative works based on the ActivNow Marks or ActivNow copyrights. You further agree to assign any interest or right you may have in such materials to ActivNow, and to provide information and execute any documents as reasonably requested by ActivNow to enable ActivNow to formalize such assignment.
ActivNow respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the ActivNow Platform infringe upon your copyrights, please view our Copyright Policy for information on how to make a copyright complaint.
The following disclaimers are made on behalf of ActivNow, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
The ActivNow Platform is provided on an "as is" basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the ActivNow Platform and/or our services, including the ability to provide or receive coaching or competitive services at any given location or time. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the ActivNow Platform or our services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the ActivNow Platform will be corrected, or that the ActivNow Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the ActivNow Platform or our services.
We cannot guarantee that each user is who he or she claims to be. Please use common sense when using the ActivNow Platform and Services, including looking at the photos of the users, you have scheduled activities with, matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the ActivNow Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential user or participant prior to engaging in an arranged activity.
ActivNow is not responsible for the conduct, whether online or offline, of any User of the ActivNow Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings. By using the ActivNow Platform and participating in activities hosted on the platform, you agree to accept such risks and agree that ActivNow is not responsible for the acts or omissions of Users on the ActivNow Platform or participating in its Services.
You are responsible for the use of your User account and ActivNow expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the ActivNow Platform (including any profile information you provide), send to other Users, or share during the activities or services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the ActivNow Platform or through our services. Please carefully select the type of information that you post on the ActivNow Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or "hackers").
Opinions, advice, statements, offers, or other information or content concerning ActivNow or made available through the ActivNow Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the ActivNow Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the ActivNow Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the ActivNow Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither ActivNow, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the ActivNow Platform. Any of your Information, including geolocational data, you upload, provide, or post on the ActivNow Platform may be accessible to ActivNow and certain Users of the ActivNow Platform.
ActivNow advises you to use the ActivNow Platform with a data plan with unlimited or very high data usage limits, and ActivNow shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the ActivNow Platform.
This paragraph applies to any version of the ActivNow Platform that you acquire from the Apple App Store. This Agreement is entered into between you and ActivNow. Apple, Inc. ("Apple") is not a party to this Agreement and shall have no obligations with respect to the ActivNow Platform. ActivNow, not Apple, is solely responsible for the ActivNow Platform and the content thereof as set forth hereunder. However, Apple and Apple's subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple's Licensed Application End User License Agreement, for purposes of which, you are "the end-user." In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
As a user, you may be able to use "Nav built by Google" while providing services on the Platform. Users may also use Google Maps while using the App. In either case, you agree that Google may collect your location data when the ActivNow App is running in order to provide and improve Google's services, that such data may also be shared with ActivNow in order to improve its operations, and that Google's terms and privacy policy will apply to this usage.
You will defend, indemnify, and hold ActivNow including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of your use of the ActivNow Platform and participation in its Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, other users, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the ActivNow Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of any equipment related to your activities you engage in as a user; and/or (5) any other activities in connection with the services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
IN NO EVENT WILL ACTIVNOW, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY "ACTIVNOW" FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE ACTIVNOW PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE ACTIVNOW PLATFORM, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ACTIVNOW PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE ACTIVITIES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT ACTIVNOW HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY ACTIVITIES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. CERTAIN JURISDICTIONS MAY NOT ALLOW 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.
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days' prior written notice to ActivNow; or b) by either Party immediately, without notice, upon the other Party's material breach of this Agreement, including but not limited to any breach of Section 'Restricted Activities' or breach of Section 'Representations, Warranties and Agreements' of this Agreement. In addition, ActivNow may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide services; (2) you fall below ActivNow's star rating or cancellation threshold; (3) ActivNow has the good faith belief that such action is necessary to protect the safety of the ActivNow community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to ActivNow's reasonable satisfaction prior to ActivNow permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to ActivNow's satisfaction, this Agreement will not be permanently terminated. Sections on 'Modification to the Agreement', 'ActivNow Communications', 'Your Information', (with respect to the license), 'Intellectual Property', 'Disclaimers', 'Indemnity', 'Limitation of Liability', 'Term and Termination, 'Dispute Resolution and Arbitration Agreement', 'Confidentiality', 'Relationship with ActivNow', and General' shall survive any termination or expiration of this Agreement.
YOU AND ACTIVNOW MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate ("Arbitration Agreement") is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with ActivNow ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and ActivNow, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and ActivNow's service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A "CLAIM" AND COLLECTIVELY, "CLAIMS") SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND ACTIVNOW. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the ActivNow Platform, ActivNow promotions, gift card, referrals or loyalty programs, any other goods or services made available through the ActivNow Platform, your relationship with ActivNow, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on ActivNow's behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by ActivNow, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by ActivNow and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND ACTIVNOW ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
YOU UNDERSTAND AND AGREE THAT YOU AND ACTIVNOW MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS ("CLASS ACTION WAIVER"). YOU UNDERSTAND AND AGREE THAT YOU AND ACTIVNOW BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST ACTIVNOW, WHICH ARE ADDRESSED SEPARATELY IN SECTION (C) below.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and ActivNow agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and ActivNow agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, "representative PAGA Waiver"). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association ("AAA") pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA's website (www.adr.org) (the "AAA Rules") or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person's Claims, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator upon mutual written agreement.
As part of the arbitration, both you and ActivNow will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator's decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If ActivNow initiates arbitration under this Arbitration Agreement, ActivNow will pay all AAA filing and arbitration fees.
With respect to any Claims brought by ActivNow against a User, or for Claims brought by a User against ActivNow that: (A) are based on an alleged employment relationship between ActivNow and a User; (B) arise out of, or relate to, ActivNow's actual deactivation of a User's account or a threat by ActivNow to deactivate a User's account; (C) arise out of, or relate to, ActivNow's actual termination of a User's Agreement with ActivNow under the termination provisions of this Agreement, or a threat by ActivNow to terminate a User's Agreement; (D) arise out of, or relate to, Costs (as defined in this Agreement, including ActivNow's commission or fees on the Costs), tips, or average hourly guarantees owed by ActivNow to Coaching Users, other than disputes relating to referral bonuses, other ActivNow promotions, or consumer-type disputes, or (E) arise out of or relate to background checks performed in connection with a user (the subset of Claims in subsections (A)-(E) shall be collectively referred to as "User Claims"), ActivNow shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by ActivNow pursuant to the fee provisions above). However, if you are the party initiating the User Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide services to Users, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys' fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws ActivNow may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, ActivNow agrees that it will not seek such an award unless you are represented by an attorney or the arbitrator has determined that the claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)).
If the arbitrator issues you an award that is greater than the value of ActivNow's last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (k) below, then ActivNow will pay you the amount of the award or U.S. $1,000, whichever is greater.
Unless you and ActivNow agree otherwise, any arbitration hearings between ActivNow and a User will take place in the county of your billing address, and any arbitration hearings between ActivNow and a User will take place in the county in which the User provides services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. Your right to a hearing will be determined by the AAA Rules.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court's jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section (c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers' compensation, state disability insurance and unemployment insurance benefits; (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA; and (5) individual claims of sexual assault or sexual harassment in connection with the use of the ActivNow Platform. Where these claims are brought in a court of competent jurisdiction, ActivNow will not require arbitration of those claims. ActivNow's agreement not to require arbitration of these claims does not waive the enforceability of any other provision of this Arbitration Agreement (including without limitation the waivers provided in Section (b)), or of the enforceability of this Arbitration Agreement as to any other dispute, claim, or controversy.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board ("NLRB"), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (b) and (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
If you are a member of a putative class in a lawsuit against ActivNow involving User Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement's effective date (a "Pending Settlement Action"), then this Arbitration Agreement shall not apply to your User Claims in that particular class action. Instead, your User Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement's effective date.
As a User, you may opt out of the requirement to arbitrate User Claims defined in Section (e)(3) (except as limited by Section (i) above) pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in ActivNow's Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with ActivNow. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Agreement with respect to User Claims, you may opt out of arbitration with respect to such User Claims, other than those in a Pending Settlement Action, by notifying ActivNow in writing of your desire to opt out of arbitration for such User Claims, which writing must be dated, signed and delivered by electronic mail to arbitrationoptout@ActiveNow.net.
In order to be effective, (A) the writing must clearly indicate your intent to opt out of this Arbitration Agreement with respect to User Claims that are not part of a Pending Settlement Action, (B) the writing must include the name, phone number, and email address associated with your User Account, and (C) the email containing the signed writing must be sent within 30 days of the date this Agreement is executed by you. Should you not opt out within the 30-day period, you and ActivNow shall be bound by the terms of this Arbitration Agreement in full (including with respect to User Claims that are not part of a Pending Settlement Action). As provided in paragraph (i) above, any opt out that you submit shall not apply to any User Claims that are part of a Pending Settlement Action and your User Claims in any such Pending Settlement Action shall continue to be governed by the arbitration provisions that are contained in the applicable ActivNow Terms of Use that you agreed to prior to the effective date of this Agreement.
Cases have been filed against ActivNow and may be filed in the future involving User Claims. You should assume that there are now, and may be in the future, lawsuits against ActivNow alleging class, collective, and/or representative User Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of User Claims with ActivNow under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against ActivNow in an individual arbitration, except for the User Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any User Claims under this Arbitration Agreement.
Before initiating any arbitration or proceeding, you and ActivNow may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and ActivNow. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute ("Notice"). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to ActivNow's business, operations and properties, information about a User made available to you in connection with such User's use of the Platform, which may include the User's name, pick-up location, contact information and photo ("Confidential Information") disclosed to you by ActivNow for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties, and you agree not to store separate and outside of the ActivNow Platform any User Information obtained from the ActivNow Platform. As a User, you understand that some of User Information you receive may be protected by federal and/or state confidentiality laws, such as the Health Information Portability and Accountability Act of 1996 ("HIPAA"), governing the privacy and security of protected (patient) health information. In the event that you know a User, you should not disclose to anyone the identity of the User as this could violate HIPAA. You understand that any violation of the Agreement's confidentiality provisions may violate HIPAA or state confidentiality laws and could result in civil or criminal penalties against you. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of ActivNow in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to ActivNow with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by ActivNow or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of ActivNow; becomes known to you, without restriction, from a source other than ActivNow without breach of this Agreement by you and otherwise not in violation of ActivNow's rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to ActivNow to enable ActivNow to seek a protective order or otherwise prevent or restrict such disclosure.
As a User on the ActivNow Platform, you acknowledge and agree that you and ActivNow are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and ActivNow expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and ActivNow; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind ActivNow, and you undertake not to hold yourself out as an employee, agent or authorized representative of ActivNow.
ActivNow does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of services, your acts or omissions. You retain the sole right to determine when, where, and for how long you will utilize the ActivNow Platform. You retain the option to accept or to decline or ignore a User's request for services via the ActivNow Platform, or to cancel an accepted request for services via the ActivNow Platform, subject to ActivNow's then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, ActivNow shall have no right to require you to: (a) display ActivNow's names, logos or colors; or (b) wear a uniform or any other clothing displaying ActivNow's names, logos or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities.
In addition to connecting Users, the ActivNow Platform may enable Users to provide or receive services from other third parties. You understand and that the Other Services are subject to the terms and pricing of the third-party provider. If you choose to purchase Other Services through the ActivNow Platform, you authorize ActivNow to charge your payment method on file according to the pricing terms set by the third-party provider. You agree that ActivNow is not responsible and may not be held liable for the Other Services or the actions or omissions of the third-party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the ActivNow Platform.
Except as provided in Section 'DISPUTE RESOLUTION AND ARBITRATION AGREEMENT', this Agreement shall be governed by the laws of the State of Texas without regard to choice of law principles. This choice of law provision is only intended to specify the use of Texas law to interpret this Agreement and is not intended to create any other substantive right to non- Texans to assert claims under Texas law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by ActivNow, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to ActivNow shall be given by certified mail, postage prepaid and return receipt requested to ActivNow. Any notices to you shall be provided to you through the ActivNow Platform or given to you via the email address or physical you provide to ActivNow during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words "include", "includes" and "including" are deemed to be followed by the words "without limitation". A party's failure to act with respect to a breach by the other party does not constitute a waiver of the party's right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and ActivNow with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the ActivNow Platform, please contact us through our Help Center or send an email to our support team directly.
