The definitions for some of the defined terms used in this Agreement are set forth in Section 15. The definitions for other defined terms are set forth elsewhere in this Agreement.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN MEMBER AGREES TO THIS AGREEMENT MEMBER IS AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN MEMBER AND SWEETEN THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT AND MEMBER IS WAIVING MEMBER’S RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. PLEASE REVIEW CAREFULLY SECTION 13 (“DISPUTE RESOLUTION”) BELOW FOR DETAILS REGARDING ARBITRATION.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Member and Sweeten (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
1. License Grants By Sweeten; Restrictions of Use
1.1 License Grants by Sweeten. Subject to the terms and conditions of this Agreement, Sweeten hereby grants to Member during the Term:
(a) a limited, non-exclusive, non-transferable (except as permitted under Section 14 below) license, without the right to grant sublicenses, to authorize Administrators to access and use the Platform. Member shall be responsible to Sweeten for any and all acts or omissions of the Administrators. Sweeten reserves the right to change the availability of any feature, function, or content relating to the Platform, at any time, without notice or liability;
(b) the non-exclusive right to: (i) place a Sweeten graphic link and logo on Member’s website; and use Sweeten’s trademarks in accordance with any guidelines provided by Sweeten to promote the Platform and the Services. The Sweeten graphic link and logo referred to in the previous sentence must contain Sweeten trademarks exactly as provided to Member by Sweeten and directly link to the location specified by Sweeten. Any other use of Sweeten’s trademarks requires Sweeten’s prior, written consent, which may be granted via e-mail. All goodwill generated by Member’s use of Sweeten’s trademarks as set forth herein shall inure to the benefit of Sweeten.
1.2 Restrictions of Use. Member will not (and will not authorize any third party to) make any use or disclosure of the Platform or the Data that is not expressly permitted under this Agreement. Without limiting the foregoing, Member will not (and will not authorize any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (ii) modify, adapt, translate, or reproduce the Platform; (iii) resell, distribute, or sublicense the Platform or the Data; make the Platform available on a “service bureau” basis, or otherwise authorize any third party to use or access the Platform or the Data; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform or the Data; (v) use the Platform or the Data in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; (vi) introduce into the Platform any virus, worm, “back door,” Trojan Horse, or similar harmful code; (vii) upload any Member Content that violates any provision of this Agreement, is obscene or illegal, is knowingly false or misleading, or is or reasonably could be considered inappropriate, unsuitable, or offensive. If Member violates this Section 1.2, Sweeten reserves the right, in its sole, but reasonable, discretion to deny Member and its Administrators access to the Platform, Data, or any portion of the Services, without notice, and to remove any Member Content that does not adhere to these guidelines.
2. Rights and Terms for Apps
2.1 Rights in App Granted by Sweeten. Subject to Member’s compliance with this Agreement, Sweeten grants Member a limited, revocable, non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device, computer or other compatible hardware owned or controlled by Member and to run such copy of the App solely for Member’s use of the Services and internal business purposes, in accordance with this Agreement. Except as expressly permitted in this Agreement, Member may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third-party or otherwise use the App on a time sharing or service bureau basis; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Sweeten hereby reserves all rights in and to the App not expressly granted to Member under this Agreement.
2.2 Accessing App from App Store. The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). Member acknowledges and agrees that:
- This Agreement is concluded between Member and Sweeten, and not with the App Provider, and Sweeten (not the App Provider), is solely responsible for the App.
- The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, the App Provider will have no warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Sweeten.
- The App Provider is not responsible for addressing any claims Member has or any claims of any third-party relating to the App or Member’s possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third-party claim that the App or Member’s possession and use of that App infringes that third-party’s intellectual property rights, Sweeten will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
- The App Provider, and its subsidiaries, are third-party beneficiaries of this Agreement as related to Member’s license to the App, and that, upon Member’s acceptance of this Agreement, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to Member’s license of the App against Member as a third-party beneficiary thereof.
- Member represent and warrant that (i) Member (including all of Member’s personnel) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) Member (including all of Member’s personnel) is not listed on any U.S. Government list of prohibited or restricted parties.
- Member must also comply with all applicable third-party terms of service when using the App.
3. Member Content Submissions; License Grants by Member
3.1 Submission of Member Content. During the Term, Member may periodically upload Member Content to the Platform, which Sweeten shall make available to Users.
3.2 License Grants. Subject to the terms of this Agreement, Member hereby grants to Sweeten:
(a) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publicly-display, and publicly-perform the Member Content, in whole or in part, through the Services on the Platform. Sweeten’s license to modify the Member Content is limited to modifying the Member Content to fit the format of the Platform;
(b) a non-exclusive, worldwide, fully paid-up, royalty-free right and license during the Term to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publicly-perform the Member Marks in any and all media now known or hereafter devised: (1) in connection with the presentation of the Member to Users; and (2) with the prior consent of Member, in connection with the marketing, advertising, and promotion of Sweeten, the Platform, and/or the Services; provided, however, Sweeten may list Member as a member of Sweeten without having to obtain Member’s consent; and
(c) the right to sublicense the rights and licenses set forth in Section 3.2(a) and Section 3.2(b) in connection with any derivative site or distribution arrangement concerning the Platform, including, without limitation, co-branded versions of the Platform. All sublicenses granted pursuant to this Section 3.2(c) will be subject to the same restrictions that apply to Sweeten with respect to the use of the Member Content and the Member Marks. All goodwill generated by Sweeten’s use of the Member Marks as set forth herein shall inure to the benefit of Member.
4. Transactions; Release
4.1 Transactions. Transactions. Member acknowledges and agree that: (i) Sweeten makes no attempt to confirm, and does not confirm, any User’s purported identity or the scope of any Project; (ii) Member is solely responsible for determining the identity and suitability of Users with whom Member may contract; (iii) Sweeten does not endorse any User; and (iv) although Member is able to find information about Projects and be connected to Users through the Platform, Sweeten is not a party to any Transaction and shall have no liability to any party in connection with such Transactions. Any User and Member entering into a Transaction must reduce the terms and conditions regarding such Transaction to a signed and dated written contract (each such contract, a “Transaction Contract”). Sweeten offers certain form agreements as a part of the Services to help facilitate any such Transactions, provided that such form agreements are provided for the convenience of Members and Users, and these form agreements are provided without any warranty of any kind. Member assumes any and all liability in connection with choosing to use and/or using these form agreements. Sweeten does not offer legal representation, nor any legal advice, opinions, recommendations, or counseling.
4.2 Release. MEMBER, ON BEHALF OF ITSELF AND ITS REPEESENTATIVES, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASING PARTIES”), AGREE THAT SUCH RELEASING PARTIES SHALL NOT HAVE ANY RIGHT OR CAUSE OF ACTION, AND HEREBY FULLY, FINALLY, AND FOREVER RELEASE, DISCHARGE, AND ACQUIT SWEETEN AND ITS PAST, CURRENT, AND FUTURE MEMBERS, SHAREHOLDERS, EMPLOYEES, OFFICERS, DIRECTORS, SUBSIDIARIES, PARENT ENTITIES, ATTORNEYS, PRINCIPALS, TRUSTEES, REPRESENTATIVES, AGENTS, PARTNERS, AFFILIATES, PREDECESSORS, SUCCESSORS, OPERATING PARTNERSHIPS, GENERAL PARTNERS, INSURERS, REINSURERS, AND ASSIGNS FROM ANY AND ALL CLAIMS, SUITS, OBLIGATIONS, COSTS, DAMAGES, LOSSES, CLAIMS FOR SUMS OF MONEY, CONTRACTS, CONTROVERSIES, AGREEMENTS, JUDGMENTS, AND DEMANDS WHATSOEVER, RIGHTS, LIABILITIES, ACTIONS, AND CAUSES OF ACTION OF ANY NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, AT LAW OR IN EQUITY, FIXED OR CONTINGENT, WHICH SUCH RELEASING PARTIES NOW HAVE OR MAY CLAIM TO HAVE IN THE FUTURE (COLLECTIVELY, “CLAIMS”) ARISING OUT OF, BASED UPON, ATTRIBUTABLE TO, OR IN CONNECTION WITH MEMBER’S INTERACTION WITH OTHER MEMBERS AND ANY USERS AND ANY TRANSACTIONS MEMBER MAY ENTER WITH USERS. MEMBER HEREBY ACKNOWLEDGES AND AGREES THAT IT IS THE INTENTION OF THE PARTIES THAT THE FOREGOING RELEASE AND DISCHARGE SHALL BE EFFECTIVE AS A BAR TO ALL CLAIMS OF WHATEVER CHARACTER, NATURE, AND KIND, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, HEREINABOVE SPECIFIED TO BE SO BARRED. IN FURTHERANCE OF THIS INTENTION, THE RELEASING PARTIES EXPRESSLY WAIVE ANY AND ALL RIGHTS AND BENEFITS CONFERRED UPON THEM BY THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH STATES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
5. Fees; Payment; Taxes
5.1 Consideration. As consideration for the licenses granted in Section 1 and Member’s access to and usage of the Platform, in connection with: (i) any Transaction entered during the Term; and (ii) any transaction within twelve (12) months after the Term between Member and a counterparty who was a User during the Term, Member shall pay Sweeten the fees set forth in the account section of the Member’s profile page (the “License Fees”). Sweeten may modify the Licensee Fees at any time by posting such modification in such account section, and any such modification shall go into effect thirty (30) days after it is so posted. It is Member’s responsibility to check for such modifications.
5.2 Payments. Member must submit a complete copy of each Transaction Contract (including, without limitation, the full terms of the Transaction Contract, the signatures of both Member and User, and the dates of each party’s signature) through the Platform within seven (7) days of entering into such Transaction. Upon Sweeten’s receipt of such copy, Sweeten shall: (i) invoice Member for the License Fees, which Member shall pay in full and without any setoffs within thirty (30) days of its receipt of same; or (ii) if Member has opted for electronic payment, Sweeten (or its approved third-party vendor) may immediately authorize Member’s approved payment facility for the full payment of the License Fees. Unless otherwise stated on the invoice or at the time of payment, all payments will be charged and made in U.S. dollars.
5.3 Existing Relationships. If Member has a prior existing relationship with any User prior to any introductions made between Member and such User through the Services, Member must send written notice to Sweeten (including by email to GCteam@sweeten.com) within three (3) business days days of first interacting with such User through the Services or bidding on any Project posted by such User through the Services.
5.4 Late Fees. All payments under this Agreement will earn interest from the date due until paid at a monthly rate equal to the lesser of (a) the maximum rate permissible under applicable law and (b) one percent (1%), calculated on the number of days such payment is delinquent.
5.5 Taxes. Member shall pay all applicable sales, use, and other such taxes related to any Transactions.
5.6 Refunds. Any and all refunds issued to Member by Sweeten, which shall be issued in Sweeten’s sole discretion, shall be in the form of credits. No cash refunds shall be issued.
5.7 License Fees. For purposes of calculating the License Fee, the “Total Project Fee” means the total compensation paid to Member for any Project (including any modifications, additions, and changes to the Project), including, without limitation, all sums for work, labor, services, materials, insurance, and profit, excluding only out-of-pocket fees actually paid by Member to third-party professional consultants, such as consultants in areas of civil engineering, structural design, ecological design, interior design, and similar consultants.
|Total Project Fee||Licensee Fee|
|Up to and including $100,000||6.00% of Total Project Fee|
|Greater than $100,000||6.00% of Total Project Fee up to $100,000, plus 2.5% of the Total Project Fee in excess of $100,000|
|Total Project Fee||Licensee Fee|
6. Term and Termination
6.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with Section 6.2 below (the “Term”).
6.2 Termination. Either Party may immediately terminate this Agreement, without penalty or liability, at any time, for any or no reason, upon written notice to the other Party.
6.3 Effect of Termination. Upon termination of this Agreement: (i) all rights and licenses granted under Section 1.1 will immediately cease; (ii) Member will immediately cease all use and access of the Platform; (iii) Member shall promptly pay any monies due and owing pursuant to Section 5; and (iv) Sweeten shall promptly deactivate the Member profile from being publicly available, provided, however, that: (a) Sweeten may, at its election, continue to store the Member profile in the event Member desires to reactivate its account at a later date; and (b) Sweeten may, at its election, continue to use the Member Content as set forth in Section 3.2.
6.4 Survival. The following provisions will survive termination of this Agreement: Section 4 (“Transactions; Release”), Section 5 (“Fees; Payment; Taxes”) (until all payments have been made), Section 6.3 (“Effect of Termination”), Section 7 (“Ownership”), Section 8 (“Representations and Warranties; Disclaimer”), Section 9 (“Limitation of Liability”), Section 10 (“Indemnification”), Section 11 (“Confidentiality; Usage of Data”), Section 12 (“Personal Information”) Section 13 (“Dispute Resolution”), Section 14 (“General Provisions”), Section 15 (“Definitions”), and this Section 6.4 (“Survival”).
The Platform contains material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Sweeten (collectively referred to as the “Content”). The Content may be owned by Sweeten or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. Member has no rights in or to the Content, and Member will not use the Content except as permitted under this Agreement. No other use is permitted without the prior written consent of Sweeten. Member must retain all copyright and other proprietary notices contained in the original Content on any copy Member makes of the Content. Member may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
As between the Parties, Sweeten owns and shall own all right, title, and interest in and to the Platform, the Services, the Data, Content, and Sweeten trademarks, including all source code, object code, operating instructions, and interfaces developed for or relating to the same, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “Sweeten Intellectual Property”). Member will have no rights with respect to the Sweeten Intellectual Property other than those expressly granted hereunder. Member owns and shall own all right, title, and interest in and to the Member Content and the Member Marks, and Sweeten will have no rights with respect to the same other than those expressly granted hereunder.
8. Representations and Warranties; Disclaimer
8.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; and (ii) it shall comply with all applicable laws, rules, and regulations in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, the Internet, privacy, and unfair business practices.
8.2 Representations and Warranties of Member. In addition to the representations and warranties set forth in Section 8.1, Member represents and warrants that the Member Content and the Member Marks and Sweeten’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including without limitation any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement.
8.3 Disclaimer. SWEETEN CANNOT GUARANTEE THAT THE PLATFORM OR THE SERVICES WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR OR PROBLEM RAISED BY MEMBER OR ANY USER WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, THE PLATFORM, THE SERVICES, THE DATA, THE SWEETEN TRADEMARKS, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY SWEETEN HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND SWEETEN MAKES NO WARRANTY WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT SWEETEN MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
9. Limitation of Liability
EXCEPT FOR (I) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (II) A PARTY’S INDEMNIFICATION OBLIGATIONS, (III) MEMBER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; OR (IV) MEMBER’S BREACH OF SECTION 1: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR ANY OTHER PARTY CLAIMING RIGHTS THROUGH SUCH PARTY) FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (B) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE LICENSE FEES PAID TO SWEETEN HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding (collectively, “Losses”) to the extent arising from, relating to, or alleging that the Party has breached any of its representations, warranties, covenants, or obligations hereunder. In addition, Member shall indemnify, defend, and hold harmless Sweeten and its officers, directors, employees, attorneys, and agents from and against any and all Losses arising from or relating to any Transaction.
11. Confidentiality; Usage of Data
Member shall not, directly or indirectly, use for its own benefit (other than to fulfill its obligations or exercise its rights hereunder) or disclose to any third party any trade secret, Data, confidential information, passwords or other access credentials to the Platform, the financial information of Sweeten, or the terms of this Agreement without the prior, written permission of Sweeten.
12. Personal Information
12.1 Use of Personal Information. In providing the Services, Sweeten may transfer Personal Information to Member as a separate “business” or other similar term under applicable data protection laws, subject to the terms of the Agreement.Member will be solely responsible for its compliance with applicable data protection laws.
12.2 Security and Security Incidents. Member agrees to implement and maintain appropriate technical, administrative and physical security measures to protect Personal Information. Member shall immediately notify Sweeten at privacy @sweeten.com if Member knows or suspects that there has been any unauthorized access, use or disclosure of Personal Information (“Security Incident”). Member shall be solely responsible for providing any notice to individuals of such Security Incident and otherwise appropriately remediating the Security Incident.
12.3 Disputes and Claims. In the event of a dispute or claim brought by an individual or any regulatory authority concerning the processing of Personal Information against either or both Parties, the Parties will inform each other about any such disputes or claims, and will cooperate with a view to resolving them within a reasonable time.
12.4 Liability. To the fullest extent permitted under applicable laws, Sweeten shall not be liable (whether jointly or severally) for any compensation, damages, losses, fees, or costs resulting from Member’s processing of Personal Information.
13. Dispute Resolution
13.1 Mandatory Arbitration of Disputes. The Parties hereby agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Platform or the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. The Parties hereby agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that each Party hereby waives the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
13.2 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A Party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If Member’s claim is for U.S. $10,000 or less, Member may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If Member’s claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in New York, New York, unless the Parties mutually agree upon a different location. The Parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
13.3 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Sweeten will pay for all filing, administration and arbitrator fees and expenses if a Dispute is for less than $10,000, unless the arbitrator finds the Dispute frivolous. If Sweeten prevails in arbitration Sweeten will pay all of its attorneys’ fees and costs and won’t seek to recover them from Member. If Member prevail in arbitration Member will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
13.4 Class Action Waiver. EACH PARTY HEREBY AGREES THAT IT MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the Parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 13 (“Dispute Resolution”) section shall be null and void.
13.5 Effect of Changes on Arbitration. Notwithstanding the provisions of Section 14.1 regarding Sweeten’s right to modify this Agreement at any time by posting such modification on the Website, if Sweeten changes any of the terms of this Section 13 (“Dispute Resolution”) after the date Member first accepted this Agreement (or accepted any subsequent changes to this Agreement), Member may reject any such change by sending written notice to Sweeten (including by email to firstname.lastname@example.org) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Sweeten’s email to Member notifying Member of such change. By rejecting any change, Member is agreeing that Member will arbitrate any Dispute between Member and Sweeten in accordance with the terms of this Section 13 (“Dispute Resolution”) as of the date Member first accepted this Agreement (or accepted any subsequent changes to this Agreement).
13.6 Severability. With the exception of any of the provisions in Section 13.4 (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
14. General Provisions
14.1 Member acknowledges and agrees that the Platform is based in the United States. Sweeten makes no claims concerning whether the Platform may be accessed or used or are appropriate outside of the United States. If Member accesses the Platform from outside of the United States, it does so at its own risk. Whether inside or outside of the United States, Member is solely responsible for ensuring compliance with the laws of its specific jurisdiction. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to: (i) and Affiliate, or (ii) a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required). This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of New York, and each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such courts, and waives any, (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such Party. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Sweeten may modify this Agreement at any time by posting such modification on the Website, and any such modification shall go into effect sixty (60) days after it is so posted. It is Member’s responsibility to check for such modifications. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
“Administrator” means an employee or agent of Member who registers to use the Platform and who accesses and uses the Platform on the terms and conditions of this Agreement.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Data” means all data collected by Sweeten through the Platform.
“Effective Date” means the date Member accepted this Agreement.
“Member Content” means any content, audio and audiovisual materials, data, images, files, hypertext links, and other materials provided or made available to Sweeten by Member pursuant to the Agreement.
“Member Marks” means all trademarks, service marks, logos, and other distinctive brand features of Member that are used in or relate to the Member Content.
“Personal Information” means any Data that relates to an identified or identifiable natural person, including a User, that is shared with Member by Sweeten via the Services.
“Platform” means collectively, the website located at https://app.sweeten.com and Sweeten’s mobile app, which is accessible through tablets, cell phones, personal digital assistants, connected televisions, and other devices.
“Project” means a renovation project posted to the Platform by a User.
“Services” means the online services provided by Sweeten via the Platform.
“Transaction” means an agreement between Member and a User regarding a Project.
“User” means any end user of the Platform who posts a Project.
“Website” means Sweeten’s website located at https://app.sweeten.com.