Tribe DIY, LLC
March 2, 2020
PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
These Terms of Service (this “Agreement” or “Terms of Service”) is a contract between you (“you”, “User” “Vendor” or “Client”) and Tribe DIY, LLC (“Tribe,” “we,” or “us”) and any of our affiliates. You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at www.tribediy.com or any part of the rest of the Site.
Subject to the conditions set forth herein, Tribe may, in its sole discretion, amend this Agreement at any time by posting a revised version on the Site. Tribe will provide reasonable notice of any amendment.
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE AND ANY AMENDMENTS THERETO, INCLUDING THE ARBITRATION PROVISION IN SECTION 12 OF THIS AGREEMENT (SUBJECT TO YOUR RIGHT TO OPT OUT OF THE ARBITRATION PROVISION AS PROVIDED IN SECTION 12.4.4). IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE SERVICES.
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU”, “YOUR”, “USER”, “VENDOR” AND “CLIENT” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.
1. ACCOUNTS AND IDENTIFICATION
Section 1 identifies generally Tribe’s signup and registration process, including your requirements to provide particular information about yourself as an individual and/or your company.
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and any other applicable Terms of Service.
To access and use certain portions of the Site and the Site Services, you must register for an Account. Subject to the Site Terms of Service, certain portions of the Site are available to Site visitors, including those portions before your Account registration is accepted. Tribe reserves the right to decline a registration to join Tribe or to add an Account for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.
1.2 ACCOUNT ELIGIBILITY
Tribe offers the Site and Site Services for 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 lawful 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 Vendor 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 (“Profile”), which you consent to be shown to the public and other Users. 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, 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 multiple Account types. You can have separate account types. 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.
You can register for an Account or add an Account as a Client (a “Client Account”). Each account holder using the Site, Site Services, for the purpose of searching for or using Vendor Services is a “Client” for purposes of these Terms of Service.
You can register for an Account to use the Site and Site Services to offer your services to Clients. When using the Site for such purposes you are a “Vendor” registering your Account. (a “Vendor Account”). You acknowledge and agree that as a Vendor you and/or the entity for which you are an agent are solely responsible, and assume all liability, for (a) the classification of your agents as employees or independent contractors; and (b) paying your agents in accordance with applicable law for work performed on behalf of you for Projects.
1.5 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account may 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 Tribe. You authorize Tribe, 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, which includes, but is not limited to, providing official government or legal documents.
1.6 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 Tribe 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 TRIBE
Section 2 discusses what Tribe 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 Vendor or Client, as detailed below.
2.1 RELATIONSHIP WITH TRIBE
The Site is a marketplace where Clients and Vendors can identify each other and advertise, buy, and sell Vendor Services online. Subject to the Terms of Service, Tribe provides the Site Services to Users, including hosting and maintaining the Site. Each Vendor Service agreed upon between the Vendor and the Client is a “Project.” The Vendor and Client then agree upon the terms of such Project, called a “Service Contract.” When a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.
Tribe merely makes the Site and Site Services available to enable Vendors and Clients to find and transact directly with each other. Tribe does not introduce Vendors to Clients, find Projects for Vendors, or find Vendors for Clients, nor does it guarantee any particular result or achievement of the Client or Vendor’s goals.
You acknowledge, agree, and understand that Tribe is not a party to the relationship or any dealings between Client and Vendor. 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 Vendor Services, or (e) paying for Service Contracts or Vendor 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. Tribe does not make any representations about or guarantee the truth or accuracy of any Vendor or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Vendors or Clients; and does not vet or otherwise perform background checks on Vendors or Clients. You acknowledge, agree, and understand that Tribe does not, in any way, supervise, direct, control, or evaluate Vendors or their work and is not responsible for any Project, Project terms or Work Product. Tribe makes no representations about and does not guarantee, and you agree not to hold Tribe responsible for, the quality, safety, or legality of Vendor Services; the qualifications, background, or identities of Users; the ability of Vendors to deliver Vendor Services; the ability of Clients to pay for Vendor Services; User Content, statements or posts made by Users; or the ability or willingness of a Client or Vendor to actually complete a transaction.
You also acknowledge, agree, and understand that Vendors are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Vendor 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 Tribe, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Tribe will not have any liability or obligations under or related to Service Contracts and/or Vendor Services for any acts or omissions by you or other Users; (iii) Tribe does not, in any way, supervise, direct, or control any Vendor or Vendor Services; does not impose quality standards or a deadline for completion of any Vendor Services; and does not dictate the performance, methods or process Vendor uses to perform services; (iv) Vendor is free to determine when and if to perform Vendor Services, including the days worked and time periods of work, and Tribe does not set or have any control over Vendor’s pricing, work hours, work schedules, or work location, nor is Tribe involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Vendor for a Project; (v) Vendor will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Vendor does not, in any way, provide or guarantee Vendor a regular salary or any minimum, regular payment; (vi) Tribe does not provide Vendors with training or any equipment, labor, tools, or materials related to any Service Contract; and (vii) Tribe does not provide the premises at which Vendors will perform the work. Vendors are free to use subcontractors or employees to perform Vendor Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Vendor’s subcontractor(s) or employee(s). If a Vendor uses subcontractors or employees, Vendor further agrees and acknowledges that this paragraph applies to Tribe’s relationship, if any, with Vendor’s subcontractors and employees as well and Vendor is solely responsible for Vendor’s subcontractors and employees.
Without limiting the foregoing paragraph you expressly acknowledge, agree, and understand that: the Vendor is solely responsible for paying its subcontractors and employees for work performed on behalf of the Vendor and that such payments will not be made through the Site; Tribe is not a party to any agreement between the Vendor and its subcontractors and employees and does not have any liability or obligations under or related to any such agreement.
2.2 TAXES AND BENEFITS
User acknowledges and agrees that User is solely responsible (a) for all tax liability associated with payments received, and that Tribe will not withhold any taxes from payments to User; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that User is not covered by or eligible for any insurance from Tribe; (c) for determining whether User is required by applicable law to issue any particular invoices for any Fees and for issuing any invoices so required; (d) for determining whether User is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to 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 Tribe is required by applicable law to withhold any amount of Fees and for notifying Tribe of any such requirement and indemnifying Tribe for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Tribe, User agrees to promptly cooperate with Tribe and provide copies of User’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing User is engaging in an independent business as represented to Tribe.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users may publish and/or request Tribe to publish on their behalf information on the Site about another User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Vendors or Clients voluntarily submit to Tribe and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Tribe; Tribe may provide such information solely for the convenience of Users, but in no manner is required to do so.
Tribe 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. Tribe 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, and the User providing such User Content fully indemnifies Tribe as set forth in more detail in Section 10 below. In order to protect the integrity of the feedback system and protect Users from abuse, Tribe reserves the right (but is under no obligation) to remove posted feedback or information that, in Tribe’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 Tribe. You acknowledge and agree that you will notify Tribe of any error or inaccurate statement in your feedback results and that if you do not do so, Tribe may rely on the accuracy of such information.
2.4 SERVICE CONTRACTS
If a Client and Vendor decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Vendor. Client and Vendor 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 including the cost of Vendor’s Services (the “Service Contract Price”). You acknowledge, agree, and understand that Tribe is not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Tribe and any Vendor or a partnership or joint venture between Tribe and any User.
With respect to any Service Contract, Clients and Vendors 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 Tribe’s rights and obligations under the Terms of Service or any other applicable agreements.
Users are responsible for complying with any local legal requirements. Tribe does not assume any responsibility for any consequence of entering into a Service Contract. 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. Tribe expressly disclaims any and all liability with respect to actions or omissions based on the Service Contract terms.
Client is solely responsible for and has complete discretion with regard to selection of any Vendor for any Project. Client is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining whether Vendors should be engaged as independent contractors or employees of Client and engaging them accordingly; Tribe will have no input into, or involvement in, worker classification as between Client and Vendor and Users agree that Tribe has no involvement in and will have no liability (be it tax or otherwise) arising from or relating to the classification of a Vendor generally or with regard to a particular Project. Users should consult an attorney in the applicable jurisdiction to assist in determining same.
3. TRIBE’S SERVICE FEES
Section 3 explains the fees assessed for use of the Site.
3.1 VENDOR FEES
Vendor shall be charged a “Vendor Membership Fee” to be allowed access to the Site’s Services. The Vendor Membership Fee shall not become due until Vendor enters into its first Service Contract with Client. The Vendor Membership Fee differs based upon the length of the Vendor’s Membership selected (the “Vendor Term”). The following options are currently available, but such options may change at any time without notice, if Tribe shall so choose:
Three (3) Months: $60.00
Six (6) Months: $100.00
Twelve (12) Months: $200.00
Upon payment of the selected Vendor Membership Fee, Vendor shall have access to the Site for said Vendor Term. The final day of the Vender Term if the “Termination Date.” The Vendor Membership Fee is nonrefundable irrespective of whether Vendor cancels its Membership prior to its the Termination Date. A change in price of the Vendor Membership Fee will not affect an already existing Vendor Term. However, upon the Termination Date, the Vendor shall be subject to the new pricing should Vendor seek to enter into a new Vendor Term.
In addition to the Vendor Membership Fee, Tribe shall also be entitled to fifteen percent (10%) of the Service Contract Price agreed to between the Vendor and the Client (the “Tribe Commission”). Tribe is not entitled to the Tribe Commission until payment is made by Client to Vendor. Should Client only pay a portion of the agreed upon Service Contract Price, the Tribe Commission shall only be calculated at fifteen percent (10%) of the amount actually paid by Client.
4. PAYMENT INSTRUCTIONS
Section 4 explains how fees paid to Tribe and between Users are paid, and the fact that Tribe is does not supervise any financial transaction and thus will not be liable for any issues regarding same.
All financial transactions, whether between Client, Vendor or Tribe, are transacted through the services of PayPal Holdings, Inc. or its affiliated entities (“PayPal”). Tribe, Vendor and Client must abide by any requirements of PayPal to complete all transactions. Failure of Client or Vendor to do so does not deem Tribe liable in any manner.
Vendor and Client understand and are aware that PayPal may take an additional percentage of the Service Contract Price in exchange for use of its services.
Tribe does not, in any manner, handle finances of Vendor or Client, nor does Tribe have any supervision direction or handling of the operations and/or of the Service Contract or payment of the Service Contract Price.
Vendor and Client acknowledge and agree that Tribe is in no manner liable for an incomplete or improper payment due to the fault of PayPal.
5. VAT AND OTHER TAXES
Section 5 allows Tribe to withhold taxes if required by applicable law.
Tribe 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 Vendor (the “Taxes“). In such instances, any amounts Tribe is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Tribe under the Terms of Service.
Section 6 explains your inability to work with other Users outside of the Site in most circumstances unless you pay an Opt-Out Fee, as explained in more detail below.
6.1 NON-CIRCUMVENTION PERIOD
You acknowledge and agree that a substantial portion of the compensation Tribe receives for making the Site available to you is collected through the Service Fee described in Section 3. Tribe only receives this Service Fee when a Client and a Vendor pay and receive payment through the Site. Therefore, for twenty-four (24) months from the time you identify or are identified by any party through the Site (the “Non-Circumvention Period”), 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 “Tribe 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 Period does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period 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 6.2), you agree not to circumvent the Payment Methods and Service Fees 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 Tribe immediately if a person suggests to you making or receiving payments outside of the Site in violation of this Section 6.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Tribe by sending an email message to: EMAIL ADDRESS.
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.
6.2 OPTING OUT
You may opt-out of the obligation in Section 6.1 with respect to each Tribe Relationship only if the Client or prospective Client or Vendor pays Tribe an opt-out fee for each such relationship (the “Opt-Out Fee”).
The Opt-Out Fee is computed as follows
The greater of:
(i) $3,500; or
(ii) 25% of the anticipated annualized salary or wages for one year if the Client offers Vendor employment directly; or
(iii) all Service Fees that would be earned by Tribe from the Tribe Relationship during the Non-Circumvention Period, computed based on the amount earned by Vendor from Client during the most recent normalized 8-week period, or during such shorter period as data is available to Tribe;
(iv) provided, however, that if the amount in (ii) and (iii) cannot be ascertained due to uncertainty or lack of sufficient information, then Tribe and you agree that the fee shall be $3,500; if only one of (ii) or (iii) can be ascertained, then Tribe and you agree that amount shall be used if it is greater than $3,500.
To pay the Opt-Out Fee, you must request instructions by sending an email message to EMAIL ADDRESS.
If Tribe determines, in its sole discretion, that you have violated Section 6.1, Tribe or its affiliated entities 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 to the extent permitted by law), 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 Tribe’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
7. WARRANTY DISCLAIMER
Section 7 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. TRIBE 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, TRIBE 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 NON-INFRINGEMENT. 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 11 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST TRIBE WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
8. LIMITATION OF LIABILITY
Section 8 discusses your agreement that Tribe 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.
Tribe 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), 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 TRIBE, OUR AFFILIATED ENTITIES, 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 TRIBE, OUR AFFILIATED ENTITIES, 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 TRIBE WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR VENDOR 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 9 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 Tribe is not a party to any contract between Users, you hereby release Tribe, our affiliated entities, and our respective officers, member, 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 Vendor Services provided to Client by a Vendor and requests for refunds based upon disputes.
This release will not apply to a claim that Tribe failed to meet our obligations under the Terms of Service.
Section 10 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 Tribe, our affiliated entities, and our respective directors, officers, members, 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 or default 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 Vendor as an independent contractor; the classification of Tribe as an employer or joint employer of Vendor; 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 10, your agents include 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.
11. AGREEMENT TERM AND TERMINATION
Section 11 discusses your and Tribe’s agreement about when and how long this Agreement will last, when and how either you or Tribe can end this Agreement, and what happens if either ends the Agreement, as detailed below.
Unless both you and Tribe 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. 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. Tribe 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 Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects, you agree (a) you hereby instruct Tribe to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have closed on the Site; (c) Tribe will continue to perform those Site Services necessary to complete any open Project 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 Tribe for any Site Services or such other amounts owed under the Terms of Service and to any Vendor for any Vendor Services.
If a Client properly terminates the Agreement, Tribe is entitled to keep the last Client Membership Fee paid by the Client prior to issuing notice of Termination. If a Vendor properly terminates this Agreement, no additional Vendor Membership Fees are owed unless Vendor has an Open Project, at which point this Agreement shall continue until the Project is closed including the Tribe’s entitlement to any applicable Tribe Commission.
Without limiting Tribe’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 Tribe 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 reregister under a new Account without Tribe’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 TRIBE DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, TRIBE 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 TRIBE 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.
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 Tribe 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.
12. DISPUTES BETWEEN YOU AND TRIBE
Section 12 discusses your agreement with Tribe 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.
12.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Tribe or our affiliated entities, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 12.4.4 below, you, Tribe, and our affiliated entities agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, your relationship with Tribe (including without limitation any claimed employment with Tribe or one of our affiliated entities or successors), the termination of your relationship with Tribe, or the Site Services (each, a “Claim”) in accordance with this Section 12 (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, any Service Contract, agreements, any payments or monies you claim are due to you from Tribe or our affiliated entities or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, 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 Non-Discrimination 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 Tribe or the termination of that relationship.
Disputes between the parties that may not be subject to predispute 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.
12.2 CHOICE OF LAW
This Agreement and any Claim will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG); provided, however, that any Claims made by any Vendor located within the United States will be governed by the law of the state in which such Vendor resides. However, notwithstanding the foregoing sentence, this Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).
12.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Tribe agree to first notify each other of the Claim. You agree to notify Tribe of the Claim at MAILING ADDRESS or by email to EMAIL ADDRESS, and Tribe agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Tribe then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Tribe, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Tribe will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
12.4.1 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, Tribe, and our affiliated entities agree to resolve the Claim by final and binding arbitration before an arbitrator agreed upon by the Tribe and the User. If an arbitrator cannot be agreed upon, one will be selected using the American Arbitration Association’s applicable rules.
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Tribe ends.
Except as otherwise provided herein, arbitration will be conducted in PREFERRED LOCATION and the parties shall agree upon the governing procedural rules. Should the parties not reach such agreement, the arbitration will be governed by the applicable rules of the American Arbitration Association.
12.4.2. 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 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 is deemed to be unenforceable, you and Tribe agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
12.4.3. CLASS AND COLLECTIVE WAIVER
This Arbitration Provision affects your ability to participate in class or collective actions. Both you and Tribe 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 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 Tribe 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, Tribe 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.
12.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 12 by notifying Tribe in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Tribe at MAILING ADDRESS that includes (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. Alternatively, you may send this written notification to EMAIL ADDRESS. 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 12.4.4, continuing your relationship with Tribe constitutes mutual acceptance of the terms of this Arbitration Provision by you and Tribe. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
12.4.5. 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 12.4.3, above, is deemed to be unenforceable, you and Tribe agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
Section 13 discusses additional terms of the agreement between you and Tribe, 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.
13.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Tribe 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 and subheading explanations in the Terms of Service are included for ease of reference only and have no binding effect. Even though Tribe 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 Tribe because of the authorship of any provision of the Terms of Service.
13.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon Tribe unless in a written instrument signed by a duly authorized representative of Tribe or posted on the Site by Tribe. 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 Agreement.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Tribe’s prior written consent in the form of a written instrument signed by a duly authorized representative of Tribe. Tribe may freely assign this Agreement 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 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.