Terms of Service
Effective date: June 24, 2019
Hello! Thanks for being a valuable member of Journify. Please make sure you read this document (“Terms of Service”) carefully as it contains important information regarding your legal rights, remedies, and obligations.
1. JOURNIFY ACCOUNTS
Section 1 discusses what you must agree to before using the Site or Site Services and the different types of accounts that can be created on the Site, as detailed below.
1.1 REGISTRATION AND ACCEPTANCE
1.2 ACCOUNT ELIGIBILITY
Journify offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you (a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site and Site Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of Freelance Services; and (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile and Listings (collectively, “Profile”), which you consent to be shown to other Users and the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, certifications, degrees, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT TYPES
As described in this Section, there are a number of different Account types. Once you register for one Account type, you can add the other Account types under the same username and password in the profile section of the Site. For example, if you already have an account and you selected you are a Coach, then you have a Coach Account (defined below). If you selected “Client” then you have a Client account. You can use the Site in the same manner with both types of accounts. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Agency Member, you represent and warrant that (a) the User is authorized to act on your behalf, (b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account, and (c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Service Contracts and the Terms of Service. If any such User violates the Terms of Service, it may affect your ability to use the Site. Upon closure of an Account, Journify may close any or all related Accounts.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Journify. You authorize Journify, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business.
1.7 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize Journify to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
2. PURPOSE OF JOURNIFY
Section 2 discusses what Journify does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a Coach or Client, as detailed below. The Site is a marketplace where Clients and Coaches can identify each other and advertise, buy, and sell Coach Services online. Subject to the Terms of Service, Journify provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User uses the Site to record and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH JOURNIFY
Journify merely makes the Site and Site Services available to enable Coaches and Clients to find and transact directly with each other. Journify does not introduce Coaches to Clients, find Services for Coaches, or find Coaches for Clients. Through the Site and Site Services, Coaches may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Coaches that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Service, Client or Coach on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Journify is not a party to that Service Contract. You acknowledge, agree, and understand that Journify is not a party to the relationship or any dealings between Client and Coach. Without limitation, Users are solely responsible for (a) ensuring the accuracy and legality of any User Content, (b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts, (d) performing Coach Services, or (e) paying for Service Contracts or Coach Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information (defined below). Journify does not make any representations about or guarantee the truth or accuracy of any Coach’s or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Coaches or Clients; and does not vet or otherwise perform background checks on Coaches or Clients. You acknowledge, agree, and understand that Journify does not, in any way, supervise, direct, control, or evaluate Coaches or their work and is not responsible for any Service, Service terms or Work Product. Journify makes no representations about and does not guarantee, and you agree not to hold Journify responsible for, the quality, safety, or legality of Coach Services; the qualifications, background, or identities of Users; the ability of Coaches to deliver Coach Services; the ability of Clients to pay for Coach Services; User Content, statements or posts made by Users; or the ability or willingness of a Client or Coach to actually complete a transaction. You also acknowledge, agree, and understand that Coaches are solely responsible for determining, and have the sole right to determine, which Services to accept; the time, place, manner, and means of providing any Coach Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Journify, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Journify will not have any liability or obligations under or related to Service Contracts and/or Coach Services for any acts or omissions by you or other Users; (iii) Journify does not, in any way, supervise, direct, or control any Coach or Coach Services; does not impose quality standards or a deadline for completion of any Coach Services; and does not dictate the performance, methods or process Coach uses to perform services; (iv) Coach is free to determine when and if to perform Coach Services, including the days worked and time periods of work, and Journify does not set or have any control over Coach’s pricing, work hours, work schedules, or work location, nor is Journify involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Coach for a Service; (v) Coach will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Journify does not, in any way, provide or guarantee Coach a regular salary or any minimum, regular payment; (vi) Journify does not provide Coaches with training or any equipment, labor, tools, or materials related to any Service Contract; and (vii) Journify does not provide the premises at which Coaches will perform the work. Coaches are free to use subcontractors or employees to perform Coach Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Coach’s subcontractor(s) or employee(s). If a Coach uses subcontractors or employees, Coach further agrees and acknowledges that this paragraph applies to Journify’s relationship, if any, with Coach’s subcontractors and employees as well and Coach is solely responsible for Coach’s subcontractors and employees. Without limiting the foregoing paragraph, if you are an Agency or Agency Member, you expressly acknowledge, agree, and understand that: (s) the Agency is solely responsible for paying its Agency Members for work performed on behalf of the Agency and that such payments will not be made through the Site; (t) Journify is not a party to any agreement between the Agency and its Agency Members and does not have any liability or obligations under or related to any such agreement, even if the Agency or Agency Member defaults; (u) neither Agencies nor Agency Members are employees or agents of Journify, and Journify does not, in any way, supervise, direct, or control the Agency or Agency Member or services performed by the Agency or Agency Member; (v) Journify does not, in any way, supervise, direct, or control the Agency or Agency Members; (w) Journify does not set Agencies’ or Agency Members’ contract terms amongst themselves or with Clients (including determining whether the contract will be hourly or fixed price), fees, pricing, work hours, work schedules, or location of work; (x) Journify does not provide Agencies or Agency Members with training or any equipment, labor, tools, or materials needed for any Service Contract; (y) Journify does not provide the premises at which the Agency or Agency Members will perform the work; and (z) Journify makes no representations as to the reliability, capability, or qualifications of any Agency or Agency Member or the ability or willingness of any Agency to make payments to or fulfill any other obligations to Agency Members, and Journify disclaims any and all liability relating thereto. Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
2.2 TAXES AND BENEFITS
Coach acknowledges and agrees that Coach is solely responsible (a) for all tax liability associated with payments received from Coach’s Clients and through Journify, and that Journify will not withhold any taxes from payments to Coach; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Coach is not covered by or eligible for any insurance from Journify; (c) for determining whether Coach is required by applicable law to issue any particular invoices for the Coach Fees and for issuing any invoices so required; (d) for determining whether Coach is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Coach Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if Journify is required by applicable law to withhold any amount of the Coach Fees and for notifying Journify of any such requirement and indemnifying Journify for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Journify, Coach agrees to promptly cooperate with Journify and provide copies of Coach’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Coach is engaging in an independent business as represented to Journify.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request Journify to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Coaches or Clients voluntarily submit to Journify and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Journify; Journify provides such information solely for the convenience of Users. You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Journify post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Reviews, wherever referenced, and other User Content highlighted by Journify on the Site or otherwise (“Composite Information”), if any, will include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Journify will make Composite Information available to other Users, including composite or compiled feedback. Journify provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Journify does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User. Journify does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable or defamatory. Journify is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Journify reserves the right (but is under no obligation) to remove posted feedback or information that, in Journify’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Journify. You acknowledge and agree that you will notify Journify of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Journify may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND COACH
Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
3.1 SERVICE CONTRACTS
If a Client and Coach decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Coach. Client and Coach have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that Journify is not a party to any Service Contracts, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Journify and any Coach or a partnership or joint venture between Journify and any User. With respect to any Service Contract, Clients and Coaches may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand Journify’s rights and obligations under the Terms of Service, including this Agreement and the applicable Escrow Instructions. The parties to a Service Contract can, if the parties prefer, agree to the Optional Service Contract Terms in whole or in part, in addition to or instead of other such agreements. The Optional Service Contract Terms are provided as a sample only and may not be appropriate for all jurisdictions or all contracts. Users are responsible for complying with any local requirements. Journify does not assume any responsibility for any consequence of using the Optional Service Contract Terms. The Optional Service Contract Terms are not intended to and do not (a) constitute legal advice, (b) create an attorney-client relationship, (c) or constitute advertising or a solicitation of any type. Each situation is highly fact specific and requirements vary by situation and jurisdiction and therefore any party should seek legal advice from a licensed attorney in the relevant jurisdictions. Journify expressly disclaims any and all liability with respect to actions or omissions based on the Optional Service Contract Terms.
3.2 DISPUTES AMONG USERS
For disputes arising between Clients and Coaches, you agree to abide by the dispute process that is explained in the Escrow Instructions that apply to your particular Service Contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that Journify will not and is not obligated to provide any dispute assistance beyond what is provided in the Escrow Instructions. If Coach or Client intends to obtain an order from any arbitrator or any court that might direct Journify, Journify Escrow, or our Affiliates to take or refrain from taking any action with respect to an Escrow Account, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Journify, we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
3.3 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Optional Service Contract Terms. If and to the extent that the Users do not articulate any different agreement, then they agree that this Section 3.3 (Confidentiality) applies. To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
3.4 THIRD-PARTY BENEFICIARIES
It is the intent of the Parties to this Agreement that Users who have entered into Service Contracts or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this Section 3 only.
4. WORKER CLASSIFICATION
Section 4 discusses what you agree to concerning whether a Coach is an employee or independent contractor, as detailed below.
4.1 WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Journify and a User. Client is solely responsible for and has complete discretion with regard to selection of any Coach for any Service. Client is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining whether Coaches should be engaged as independent contractors or employees of Client and engaging them accordingly; Journify will have no input into, or involvement in, worker classification as between Client and Coach and Users agree that Journify has no involvement in and will have no liability arising from or relating to the classification of a Coach generally or with regard to a particular Service.
5.2 MEMBERSHIP FEES
Coaches pay Journify a membership fee if they subscribe for a paid membership. Coaches may subscribe to different levels of participation and privileges on the Site, by payment of subscription fees as described in and subject to the terms of the Coach Membership Agreement.
5.3 DISBURSEMENT FEES
Coaches may pay Journify a disbursement fee for remitting payments to their payment method (“Disbursement Fee”). The Disbursement Fee is paid to Journify in consideration of costs incurred and administration of disbursements via the disbursement method requested by Coach and varies by disbursement method. The Disbursement Fee for each disbursement method is listed at under Fees and Schedules on the Site as revised from time to time. Additional activation, maintenance, and account fees may be charged by the disbursement method requested by Coach.
5.4 PAYMENT PROCESSING AND ADMINISTRATION FEES
Clients pay Journify a fee for payment processing and administration related to the Coach Fees they pay to Coaches they engage through the Site, as described in the Fee and ACH Authorization Agreement.
5.5 VAT AND OTHER TAXES
Journify may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (while some countries may refer to VAT using other terms, e.g. GST, we’ll just refer to VAT, GST and any local sales taxes collectively as “VAT”) in the jurisdiction of the Coach (the "Taxes"). In such instances, any amounts Journify is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Journify under the Terms of Service.
6. PAYMENT TERMS AND ESCROW SERVICES
Section 6 discusses your agreement to pay Coach Service Fees on Service Contracts, and describes what happens if a Client doesn’t pay, and related topics, as detailed below.
6.1 CLIENT PAYMENTS ON SERVICE CONTRACTS
All of Journify’s listings require Fixed-Price Contracts. Client becomes obligated to fund the Fixed-Price Contract immediately upon sending a Fixed-Price Contract offer. Client acknowledges and agrees that for Fixed-Price Contracts failure to decline or dispute an Hourly Invoice or request for payment is an authorization and instruction to release payment.. When Client authorizes the payment of the Coach Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Journify to charge Client’s Payment Method for the Coach Fees.
6.3 DISBURSEMENTS TO COACHES
Journify will automatically disburse available funds to the Coach after the security period. The security period begins after Client books and pays for the Coach through the Site, and ends when (a) Journify has received the funds from such transaction into the designated bank account, or (b) ten calendar days after the booking or contract is paid by the client. In the event that the Client initiates a dispute of the transaction within the security period, Journify will investigate whether to approve the refund or not (at its sole discretion).
6.5 NO RETURN OF FUNDS
Client acknowledges and agrees that Journify will charge Client’s designated Payment Method for the Coach Fees and that once Journify charges or debits the Client’s designated Payment Method for the Coach Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Coach Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Journify may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.
6.6 PAYMENT METHODS
6.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION
The Site and the Site Services operate in U.S. Dollars. If Client’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the Site may display foreign currency conversion rates that Journify or our Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Client, at its sole discretion and risk, may authorize the charge or debit of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. A list of supported foreign currencies is available on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and either Journify or our Affiliates does not support the foreign currency or Client does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, Journify Escrow or one of our Affiliate will charge or debit Client’s Payment Method in U.S. Dollars and Client’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by Client’s Payment Method provider. Client’s Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. Client’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at Client’s sole risk. Journify and our Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Journify and our Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse.
Section 7 discusses your agreement to make and receive payments only through Journify for the contracts between Client and Coach on the Site, unless you pay an Opt-Out-Fee, as detailed below.
7.1 MAKING PAYMENTS THROUGH JOURNIFY
You acknowledge and agree that a substantial portion of the compensation Journify receives for making the Site available to you is collected through the Service Fee described in Section 5.1. Journify only receives this Service Fee when a Client and a Coach pay and receive payment through the Site. Therefore, from the time you identify or are identified by any party through the Site, you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “Journify Relationship”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another party through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention applies to you and other employees, agents, or representatives of the business when acting in that capacity with respect to the other User. Except if you pay the Opt-Out Fee (see Section 7.2), you agree not to circumvent the Payment Methods offered by the Site. By way of illustration and not in limitation of the foregoing, you agree not to: Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site. Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site. Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users. Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site. You agree to notify Journify immediately if a person suggests to you making or receiving payments outside of the Site in violation of this Section 7.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Journify by sending an email message to: firstname.lastname@example.org. If you refuse to accept any new version of the Terms of Service or elect not to comply with certain conditions of using the Site, such as minimum rates supported on the Site, and therefore choose to cease using the Site, you may pay the Opt-Out Fee for each other User you wish to continue working with on whatever terms you agree after you cease using the Site.
7.2 OPTING OUT
You may opt-out of the obligation in Section 7.1 with respect to each Journify Relationship only if the Client or prospective Client or Coach pays Journify an opt-out fee for each such relationship (the “Opt-Out Fee”). The Opt-Out Fee is the greater of (a) 50% of the advertised Service (workshop or hourly) Rate, or (b) $200. To pay the Opt-Out Fee, you must request instructions by sending an email message to email@example.com. If Journify determines, in its sole discretion, that you have violated Section 7, Journify or its Affiliates may, to the maximum extent permitted by law (x) charge your Payment Method the Opt-Out Fee (including interest) if permitted by law or send you an invoice for the Opt-Out Fee (including interest), which you agree to pay within 30 days, (y) close your Account and revoke your authorization to use the Site and Site Services, and/or (z) charge you for all losses and costs (including any and all time of Journify’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
8. RECORDS OF COMPLIANCE
Section 8 discusses your agreement to make and keep all required records, as detailed below. Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to Journify upon request. Nothing in this subsection requires or will be construed as requiring Journify to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Journify’s part to store, backup, retain, or grant access to any information or data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses your agreement and understanding that the Site and Site Services may not always be available or work perfectly, as detailed below. YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. JOURNIFY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JOURNIFY DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 14 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST JOURNIFY WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
10. LIMITATION OF LIABILITY
Section 10 discusses your agreement that Journify usually will not have to pay you damages relating to your use of the Site and Site Services and, if it is, at most it will be required to pay you $2,500, as detailed below. Journify is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to: your use of or your inability to use our Site or Site Services; delays or disruptions in our Site or Site Services; viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services; glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services; damage to your hardware device from the use of the Site or Site Services; the content, actions, or inactions of third parties’ use of the Site or Site Services; a suspension or other action taken with respect to your Account; your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL JOURNIFY, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF JOURNIFY, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY JOURNIFY WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR Coach DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Section 11 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below. In addition to the recognition that Journify is not a party to any contract between Users, you hereby release Journify, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Coach Services provided to Client by a Coach and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Escrow Instructions.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
This release will not apply to a claim that Journify failed to meet our obligations under the Terms of Service.
Section 12 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Site Services or your illegal or harmful conduct, as detailed below. You will indemnify, defend, and hold harmless Journify, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Coach as an independent contractor; the classification of Journify as an employer or joint employer of Coach; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password. “Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party. “Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
13. AGREEMENT TERM AND TERMINATION
Section 13 discusses your and Journify’s agreement about when and how long this Agreement will last, when and how either you or Journify can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and Journify expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to firstname.lastname@example.org. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. Journify is not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Service entered into between Users. If you attempt to terminate this Agreement while having one or more open Services, you agree (a) you hereby instruct Journify to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Services have closed on the Site; (c) Journify will continue to perform those Site Services necessary to complete any open Service or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to Journify for any Site Services or such other amounts owed under the Terms of Service and to any Coaches for any Coach Services. Without limiting Journify’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or Journify or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register under a new Account without Journify’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law. You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF JOURNIFY DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, JOURNIFY HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT JOURNIFY WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and that that any closure of your Account may involve deletion of any content stored in your Account for which Journify will have no liability whatsoever. Journify, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or Journify from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
14. DISPUTES BETWEEN YOU AND JOURNIFY
Section 14 discusses your agreement with Journify and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally, as detailed below.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Journify or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, Journify, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Journify (including without limitation any claimed employment with Journify or one of our Affiliates or successors), the termination of your relationship with Journify, or the Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”). Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Terms of Service, any Service Contract, payments or agreements, any payments or monies you claim are due to you from Journify or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information NonDiscrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Journify or the termination of that relationship. Disputes between the parties that may not be subject to pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.
14.2 CHOICE OF LAW
14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
This Arbitration Provision applies to all Users except Users located outside of the United States and its territories. In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Journify, and our Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Journify ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, the Terms of Service. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator. Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Coaches that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where Coach is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person. You and Journify will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Coach will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with Journify to make up the difference, if any. In any arbitration under the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect in which a User makes a claim under a consumer protection statute, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, or $250.00, whichever is less, with Journify to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. This Arbitration Provision does not apply to litigation between Journify and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4, below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment. This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Journify will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and Journify agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14.4.3. CLASS AND COLLECTIVE WAIVER
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Journify agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach 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 or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. You and Journify agree that you will not be retaliated against, disciplined or threatened with discipline as a result of your filing or participating in a class or collective action in any forum. However, Journify may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
14.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying Journify in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Journify at email@example.com with (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Opting out of this Arbitration Provision will not affect any other terms of this Agreement. If you do not opt out as provided in this Section 14.4.4, continuing your relationship with Journify constitutes mutual acceptance of the terms of this Arbitration Provision by you and Journify. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision. 14.4.5. Enforcement of this Arbitration Provision. This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and Journify agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
Section 15 discusses additional terms of the agreement between you and Journify, including that the Terms of Service contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below.
15.1 ENTIRE AGREEMENT This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Journify relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Journify drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Journify because of the authorship of any provision of the Terms of Service.
15.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon Journify unless in a written instrument signed by a duly authorized representative of Journify or posted on the Site by Journify. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Journify’s prior written consent in the form of a written instrument signed by a duly authorized representative of Journify. Journify may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
15.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in Singapore and the United States of America.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Journify makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. In order to access or use the Site or Site Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Service or the suitability of another User for the Service, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of Coach or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Fixed-Price Contract” means a Service Contract for which Client is charged a fixed fee agreed between a Client and a Coach, prior to the commencement of a Service Contract, for the completion of all Coach Services contracted by Client for such Service Contract.
“Coach Fees” means the fixed fee agreed between a Client and a Coach.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Journify, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Journify may accept from time to time in our sole discretion.
“Service” means an engagement for Coach Services that a Coach provides to a Client under a Service Contract on the Site.
“Service Contract” means, as applicable, (a) the contractual provisions between a Client and a Coach governing the Coach Services to be performed by a Coach for Client for a Service.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Journify App” means the online platform accessed using Journify’s downloaded application or other software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“Work Product” means any tangible or intangible results or deliverables that Coach agrees to create for, or actually delivers to, Client as a result of performing the Coach Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
For any additional information related to the Site https://journify.gethealthie.com (or any of the Services performed by such Site), please visit https://gethealthie.com/terms/ or email us at firstname.lastname@example.org.
For any additional information related to this Terms of Service or the Site, please email us at email@example.com.