PLEASE REVIEW THIS AGREEMENT IN ITS ENTIRETY. YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THIS AGREEMENT BY REGISTERING TO BECOME A BUSINESS OR BY USING THE Enginerity CO. PLATFORM. THESE TERMS ARE LEGALLY-BINDING. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT REGISTER TO USE OR USE THE PLATFORM.
These Business Terms and Conditions (the “Business Terms”) state the terms and conditions between Enginerity Co., LLC (“Enginerity Co.,” “we,” “us,” or “our”) and Businesss of the Enginerity Co. website and software platform (the “Platform”) who register as Businesss (“Business,” “you,” or “your”) to purchase services from registered IT Professional (together, “User” or “Users”).
THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE COVERED DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Except as provided in the “Arbitration Agreement and Class Waiver” in Section 16 below, we reserve the right to change the Business Terms at any time in our sole business discretion. Please check these Business Terms regularly for changes. Your continued use of the Platform following the posting of any changes to the Business Terms will constitute your acceptance of and agreement to our changes.
Relationship
1.1 These Business Terms state the terms under which Business has the right to use the Platform, and the obligation to pay Enginerity Co. fees, if applicable. Enginerity Co. grants Business a non-exclusive right and license to access and use the Platform solely for Business’s own business purposes for the term of this Agreement, subject to the payment of all applicable fees
1.2 IT Professional are independent contractors who use the Platform to offer their services and to perform work on specific projects for Businesss pursuant to accepted Work Orders. Enginerity Co. is not a party to accepted Work Orders or other services agreement between Businesss and IT Professional. Enginerity Co. has no responsibility for, control over, or involvement in the scope, nature, quality character, timing or location of any work or services performed by aIT Professionals under a Work Order.
1.3 Enginerity Co. is not a party to any Work Order and is not bound by any terms of a Work Order. Work Orders are entered into exclusively by and between Businesss and IT Professional.
1.4 Enginerity Co. is not an employer or joint employer of anyIT Professionals. Enginerity Co. is not responsible for the performance or non-performance of any Business or any IT Professionals. Each IT Professionalsis solely and entirely responsible for the IT Professionals's acts and for the acts of the IT Professionals's employees, agents and subcontractors. Each Business is solely and entirely responsible for the Business's acts and for the acts of the Business's employees, agents and subcontractors.
• IT Professionals Data.
Business acknowledges that the profile information for each IT Professionalsavailable via the Platform is compiled and maintained by the IT Professionalthemselves and not Enginerity Co.. Business is responsible for conducting whatever investigation or verification of a IT Professionals profile information that Business deems necessary for purposes of entering into a Work Order with that IT Professionals. Enginerity Co. does not and will not investigateIT Professional and does not certify or verify the skills, qualifications, background, experience or other Profile Information or other information provided by IT Professional in their profile or elsewhere through the Platform. Enginerity Co. makes no representations as to the validity or accuracy of information provided by IT Professional. Business uses the Platform and contracts with IT Professional for completion of Work Orders at Business’s own risk.
• Business Data and Requirements; Platform Use.
Business acknowledges that the profile information for each IT Professionalsavailable via the Platform is compiled and maintained by the IT Professionalthemselves and not Enginerity Co.. Business is responsible for conducting whatever investigation or verification of a IT Professionals profile information that Business deems necessary for purposes of entering into a Work Order with that IT Professionals. Enginerity Co. does not and will not investigateIT Professional and does not certify or verify the skills, qualifications, background, experience or other Profile Information or other information provided by IT Professional in their profile or elsewhere through the Platform. Enginerity Co. makes no representations as to the validity or accuracy of information provided by IT Professional. Business uses the Platform and contracts with IT Professional for completion of Work Orders at Business’s own risk.
3.1 The Platform allows Businesss to create a profile to be viewed by prospective IT Professional who wish to offer their services. Enginerity Co. does not own any information, text, data, or other content that Business submits, stores, or uses in the Platform, including all Work Order information (the “Business Data”). Business shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Business Data.
3.2 Business hereby grants Enginerity Co. a royalty-free, worldwide, non-exclusive right and license to use, reproduce, modify, edit, adapt, publish, distribute, perform and display Business Data solely in connection with its operation of the Platform and related business purposes. Enginerity Co. will only use personally identifiable information of Business included in the Business Data for purposes of providing, securing, improving and customizing the Platform, as well as for any purpose set forth in the Enginerity Co. Privacy Policy as determined in Enginerity Co.’s sole discretion, and agrees to de-identify such Business Data in all other cases. Once Enginerity Co. has de-identified Business Data, Enginerity Co. may analyze, use and disclose such de-identified information for any purpose, including for marketing and advertising via the Platform interface, and as otherwise set forth in its Privacy Policy.
3.3 Business must enter information and data in the Platform for purposes of accepting and updating the status of Work Orders. All such Work Order information is the property of the applicable Business.
3.4 Enginerity Co. reserves the right to remove any Business profile for any reason.
3.5 As per our Privacy Policy (see Privacy Policy), minors under eighteen (18) years of age are prohibited from using the Site and Services. We do not intentionally gather Personal Information from visitors who are under the age of 13 or have any reasonable grounds for believing that children under the age of 13 are accessing our Website or using our Services. If we learn that we have inadvertently collected Personal Information from a child under age 13, we will delete that information as quickly as possible. If you believe that we might have any information from a child under age 13, please contact us.
3.6 Enginerity Co. makes use of location-based data to better the utility of our Site or App. If you choose not to allow Enginerity Co. to access your location, some or all functionality, including listed jobs in the geo-location, or jobs with a mandatory geo-location tracking requirement may not be available to you
3.7 Platform Use Terms:
By accessing the Platform, you agree, represent and warrant that:
• you will not knowingly provide or enter any false, misleading, or fraudulent information;
• you will not use the Platform for any illegal purpose, nor will you provide or enter any material or information in violation of any applicable law or regulation;
• all information and content provided or entered by you (i) will be original to you, and not violate the copyright or other proprietary rights of any third party, and (ii) will not violate the rights of any third party, including trade secret or privacy rights;
• information provided or entered by you will not be defamatory, harassing, offensive, threatening, obscene, or otherwise inappropriate or disruptive (in Enginerity Co.’s discretion);
• you will not hold yourself out as someone you are not or otherwise impersonate any other person;
• you will not interfere or tamper with the functioning of the Platform, nor will you attempt to gain access to information or control of the Platform not specifically granted to you;
• you will not use the Platform to transmit or host any spyware, virus, spamming, “botnet,” cryptocurrency “mining” or similar resource-consuming or destructive programs or code;
• you will not compile any database or list of other Platform users, nor will you use the Platform to facilitate the sending of any spam (unsolicited emails), bulk email, or email offering to sell goods or provide services, except as specifically-authorized in conjunction with Enginerity Co. services, and in no event will you send emails that would violate the CAN-SPAM Act in any way;
• you will abide by any other rules for participation in any social media features on the Platform including but not limited to not entering advertisements or off-topic communications in groups, chat rooms, or forums in violation of the terms of participation for such newsgroups or forums;
• you will not use the Platform to discuss or disclose the terms of any Work Order, except to facilitate the performance of the Work Order between the you and the IT Professionals;
• you will not attempt to rent, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Platform available to any third party;
• you will not create any derivative works based on the Platform, either on your own or through any third party;
• you will not produce a source listing, decompile, disassemble, or otherwise reverse IT Professionals the Platform; and
• you will not remove or obscure any notices or markings, including without limitation, copyright, trademark, or confidentiality notices, or ownership notices on the Platform, including any screens displayed by the Platform or any of its interfaces.
Further, you represent and warrant that
• your use of the Platform is not prohibited by the laws, rules, or regulations of the country or other legal jurisdiction in which you reside;
• you are not located in a country or region, nor are you a citizen of a country or region, that is (i) subject to U.S. federal government sanctions or embargoes, including without limitation Cuba, Iran, North Korea, Sudan, and Syria;
• you are not employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List, and are not otherwise ineligible to receive items subject to U.S. export control laws, rules, and regulations; and
• You have authority to enter into this Agreement on behalf of yourself, or on behalf of the registered business organization with which you are associated or for whom you are working when using this Platform. Additionally,
• Enginerity Co. is not legally responsible for any information or content posted or made available on the Platform by any User which is defamatory, violates privacy rights, or otherwise violates the rights of another user or third party. Enginerity Co. does not actively monitor or censor any information submitted to the Platform, but expressly reserves the right to monitor all content provided by Users at any time without notice. Enginerity Co. reserves the right to remove or restrict access to any information or content submitted to or made available on the Platform if it determines that such information violates this Agreement or any law, rule, or regulation of any jurisdiction.
• The Platform may include features that allow Users to post messages, comments, statements, and personal information for viewing by other Users of the Platform. All Users are responsible for exercising such care as is necessary to protect their private, confidential, or personal information when using such Platform functionality. If you do post comments or provided content via such features, or send any comments or questions about the Platform via email, telephone, or other means, such information is considered public, and Enginerity Co. may store, maintain, and use such information indefinitely, and may also disclose such information to third parties in our sole business discretion.
• Usage of the Platform constitutes consent of Business for Enginerity Co. to contact the Business by way of electronic and/or telephonic communication (including sms messaging) with information, updates, opportunities and announcements from Enginerity Co. or third party affiliates of Enginerity Co.. Users may opt out of certain of these communications via the Platform.
• The Platform may provide links to websites or apps owned and operated by third parties. Enginerity Co. exercises no control whatsoever over such websites and is not responsible or liable for the availability, security, content, advertising, products, services, or other materials available or viewable on such websites. Access and use of such linked systems is solely at your own risk.
• Payment to IT Professional and Fees.
4.1 A IT Professionals who performs work for a Business under a Work Order through the Platform will be paid by Enginerity Co. on behalf of the Business. As a condition of being allowed to post and accept Work Orders between Businesss and IT Professional via the Platform, Business must deposit funds with Enginerity Co., meet Enginerity Co.’s credit requirements, and qualify a payment mechanism, if required. Any Business funds held by Enginerity Co. will be held in a custodial account and will be commingled with the funds of other Businesss. Business acknowledges that Enginerity Co. will not pay interest on the funds it holds on deposit.
4.2 Enginerity Co. charges fees for the use of the Platform upon completion of a Work Order. When a Business sources a IT Professionalsthrough the Platform, the IT Professionals will pay Enginerity Co. a set percentage of the fees agreed to in the Work Order. Enginerity Co. will deduct these fees directly from the fees payable to a IT Professionals by a Business. Enginerity Co.’s fees are subject to periodic changes, in its sole business discretion. Use of the Platform constitutes acceptance of Enginerity Co.’s most current pricing.
4.3 Once the Business authorizes its acceptance of a completed Work Order through the Platform in accordance with the Work Order Terms and Enginerity Co. facilitates Business’s payment for services under the Work Order to the IT Professionals, Enginerity Co. shall have no further financial obligation with respect to Business or IT Professionals under that Work Order. Any refund of amounts paid or a warranty claim related to a Work Order shall be the responsibility of theIT Professionals who was paid for the services.
4.4 In addition to any other remedies it may have under these Business Terms, Enginerity Co. reserves the right to suspend or terminate Business’s access to the Platform in order to protect Enginerity Co.’s rights and interests.
4.5 In the event that any jurisdiction imposes sales, use, value-added, excise, or other taxes payable on account of payments to Enginerity Co., other than taxes on Enginerity Co.’s own income (“Taxes”), Enginerity Co.’s fees will be increased to cover such Taxes so that it receives a net amount equal to the full amount of the fees or other payment obligations that would otherwise have been payable under these Business Terms as if no such deduction or withholding was required.
• Tax Reporting and Payment Obligations.
5.1 As a service to registered Businesss and on behalf of registered Businesss, Enginerity Co. will provide IT Professional with annual 1099s and file such forms as required by the Internal Revenue Service. The filings will only be made for IT Professional who are U.S. Residents, for net fees paid to IT Professional on Work Orders sourced through the Platform, and for work done in the United States for each year that the fees paid to IT Professionals for completed Work Orders exceeds $600.
5.2 Subject to Section 6, Business otherwise will be responsible for meeting any and all tax payment or reporting obligations that may be imposed by the laws of any legal jurisdiction as a result of the payment of fees or other compensation to IT Professional for services provided pursuant to Work Orders completed via the Platform.
• Service Levels.
Enginerity Co. will use reasonable efforts to make the Platform available for access and use by Business. Business acknowledges and agrees that Enginerity Co. will not be liable for (a) any unavailability caused by acts or omissions of Business, anyIT Professional or other third parties, or caused by events outside Enginerity Co.’s control; (b) problems with Business’s internet access or private computer network and equipment; and (c) Enginerity Co.’s regularly scheduled maintenance work. Enginerity Co. will use reasonable efforts to cause all maintenance to be completed between 12:00 AM and 4:00 AM EST.
• Support and Maintenance.
Enginerity Co. will provide email, text-based, or telephone support to Business. Currently, such support generally is available Monday through Friday, excluding U.S. Federal Holidays, from 9:00 a.m. to 5:00 p.m. U.S. Eastern Time. Support shall include assistance with general usage and functionality issues and correction of software bugs and errors. Enginerity Co. will make reasonable efforts to correct or fix reported software bugs and errors promptly after being notified of the problem.
• Data Security.
Enginerity Co. will use reasonable efforts to secure, protect, and maintain the integrity of all data stored by Business in accessing and using the Platform. Business is solely responsible for the security of all Business names and passwords that may be required to access and use the Platform. If the security of such information is comprised, Business agrees to promptly notify Enginerity Co..
• Equipment Costs.
Business will be responsible for all equipment, network, and other costs necessary for Business to access and use the Platform via the Internet.
• No Consulting Services.
Enginerity Co. will not be obligated to provide Business with any consulting or other services related to the use of the Platform.
• Confidentiality.
11.1 Definition.
In performing and accepting services under these Business Terms, Enginerity Co. and Business may exchange technical, product, financial, and business information which is confidential or proprietary to them (“Confidential Information”). Confidential Information shall be limited to information clearly marked as confidential or proprietary, or information which is disclosed verbally and identified as confidential or proprietary when disclosed.11.2 Obligations.
Enginerity Co. and Business will hold all Confidential Information they receive from the other party in strict confidence and will only use it to perform their respective obligations and exercise their rights under this Agreement. Confidential Information may only be disclosed to employees, agents, consultants, and professional advisors who have a good faith need to know such information for the purposes of this Agreement, provided the person receiving the information has a confidentiality obligation to the disclosing party which is at least as stringent as the confidentiality terms of this Agreement. The receiving party shall protect and safeguard the Confidential Information against unauthorized disclosure by procedures no less stringent than those it uses for protecting its own confidential or proprietary information, and in any event by use of no less than a reasonable degree of care.11.3 Limitations.
These Business Terms impose no obligation with respect to information which: (a) was in the possession of, or was known by, the receiving party prior to its receipt from the discloser, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of these Business Terms; (c) was obtained by the receiving party from a third party having the right to disclose it, without an obligation to keep such information confidential; or (d) is independently developed by the receiving party without the use of Confidential Information.11.4 Ownership.
Each party retains all intellectual property rights in and to its own Confidential Information.11.5 Survival.
The confidentiality provisions of these Business Terms shall survive its termination for a period of five (5) years, except for the obligations of the parties regarding any trade secret information which shall survive indefinitely.
• No Circumvention; Non-Interference.
12.1 Business shall engage IT Professional to perform Work Orders directly through the Platform only. Business shall not communicate with any IT Professional outside of the Platform for the purpose of avoiding any obligations under these Business Terms or the Business Agreement, including the obligation to pay any Enginerity Co. fees. Business shall not take any actions which would circumvent the processing of payments through the Platform or prevent Enginerity Co. from collecting transaction fees due from a IT Professional.
12.2 For the term of Business’s use of the Platform and two (2) years thereafter, Business shall not directly or indirectly: (a) solicit for employment or contract services or hire any IT Professionalsto perform services similar to those offered by IT Professionals through the platform, except for services to be performed pursuant to Work Orders via the Platform without the prior written consent of Enginerity Co.; nor (b) take any action which interferes with the contractual relationship between Enginerity Co. and any of its IT Professional.
• Term and Termination.
These Business Terms commence when Business registers to use the Platform for the first time and continue in force until terminated by either party. Business may terminate these Business Terms immediately upon notice to Enginerity Co. at any time and for any reason. Enginerity Co. may terminate these Business Terms immediately without any notice at any time and for any reason. Upon termination by either party, Business’s rights to access and use the Platform will cease immediately. Upon any termination, Business will not be relieved of any obligation to pay any fees due to Enginerity Co. which accrued before the termination date. If these Business Terms are terminated for any reason, Enginerity Co. will make the Business Data available for transmittal to Business within a reasonable period after receiving a written request from Business, provided such request is received within thirty (30) days following termination.
• Warranties and Disclaimer.
14.1 General.
Enginerity Co. and Business each represent and warrant that (a) they are duly organized, validly existing and in good standing under the laws of the respective jurisdictions in which they were formed (in the case of Businesss who are not natural persons); (b) each has full power and authority to execute, deliver, and perform these Business Terms; (c) these Business Terms have been duly authorized, executed, and delivered by and are a legal, valid, and binding obligation in accordance with these terms; and (d) each of their obligations under these Business Terms shall be performed in compliance with any obligations to third parties and all applicable law, rules, or regulations of any governmental entity or agency.14.2 Business Data.
Business represents and warrants that: (a) Business owns or has secured sufficient intellectual property rights to the Business Data to deliver it to Enginerity Co. for use in the Platform as intended by these Business Terms; (b) the Business Data does not and will not contain any content that is unlawful, threatening, harassing, profane, tortious, defamatory, libelous, deceptive, fraudulent, or violates any person’s privacy or publicity rights; and (c) the Business Data does not and will not contain a software virus or other harmful component.
• Disclaimer
USE OF THE PLATFORM IS AT BUSINESS’S SOLE RISK. EXCEPT AS SET FORTH EXPRESSLY IN THESE TERMS AND CONDITIONS, THE PLATFORM IS PROVIDED “AS IS” AND “AS-AVAILABLE” AND WITHOUT A WARRANTY OF ANY KIND. Enginerity CO. DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS CONCERNING THE PERFORMANCE, OPERATION OR QUALITY OF THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Enginerity CO. DOES NOT WARRANT THAT THE PLATFORM WILL MEET ANY BUSINESS’S REQUIREMENTS, OPERATE IN COMBINATION WITH OTHER SOFTWARE OR INTERNET SITES OR SERVICES, BE UNINTERRUPTED OR ERROR-FREE, OR FUNCTION WITHIN A PARTICULAR SYSTEM. NO OTHER ORAL OR WRITTEN ADVICE GIVEN BY Enginerity CO. WILL CREATE A WARRANTY REGARDING THE PLATFORM. NO AGENT OR EMPLOYEE OF Enginerity CO. IS AUTHORIZED TO MAKE ANY WARRANTY OBLIGATIONS ON BEHALF OF Enginerity CO. OR MODIFY THE LIMITATIONS STATED IN THIS SECTION 15.
Indemnification
16.1 Enginerity Co. Indemnification.
Enginerity Co. shall indemnify and hold Business, its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, arising out of or in connection with: (a) any alleged conduct which would constitute a breach of the representations and warranties of Enginerity Co. set forth herein; or (b) a claim that the use of the Platform (other than third party materials) infringes the copyright, trademark, or United States or Canadian patent rights of any third party. Upon notice of an alleged infringement or if in Enginerity Co.’s opinion such a claim is likely, Enginerity Co. shall have the right, at its option, to obtain for Business the continuing right to use the Platform, substitute other non-infringing functionality, or modify the Platform so that it is no longer infringing. THIS SECTION SETS FORTH Enginerity CO.’S SOLE AND EXCLUSIVE LIABILITY, AND BUSINESS’S SOLE AND EXCLUSIVE REMEDY, FOR Enginerity CO.’S INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND.16.2 Business Indemnification.
Business shall and does hereby indemnify and hold Enginerity Co., its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, arising out of or in connection with: (a) a claim based on any alleged misuse of the Platform by Business, or a claim that any Business Data infringes the copyright, trademark, or patent rights of any third party; (b) any alleged conduct which would constitute a breach of the representations and warranties of Business set forth herein; and; and (c) any claims arising out of or related to any Work Order, including (i) any claims by any third party or government agency that a IT Professional was misclassified as an independent contractor or employee of Business; and (ii) any claim that Enginerity Co. was an employer or joint employer of a IT Professional; and (iii) similar or related legal claims under any employment laws.16.3 Conditions.
Each party shall indemnify the other party as set forth above provided that: (a) the indemnified party notifies the indemnifying party promptly in writing of the claim; (b) the indemnifying party has sole control of the defense and all related settlement negotiations with respect to the claim; provided, that the indemnified party has the right, but not the obligation, to participate in the defense of any such claim through counsel of its own choosing; and (c) the indemnified party cooperates fully to the extent necessary, and executes all documents necessary for the defense of such claim.16.4 Arbitration Agreement and Class Action Waiver.
Enginerity Co. and Business mutually agree to resolve any and all covered justiciable disputes between them exclusively through final and binding arbitration instead of a court or jury trial. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and applies to any and all claims arising out of or relating to the Business Terms, this Arbitration Agreement, Business’s use of the Platform, any payments made or received by Business through the Platform or arising out of or relating to the acceptance or performance of services arranged through the Platform, the termination of this Agreement, and all other aspects of the Business’s relationship (or the termination of its relationship) with Enginerity Co., past, present or future, whether arising under federal, state or local statutory and/or common law. Business and Enginerity Co. agree that the mutual obligations to arbitrate disputes provide adequate consideration for this arbitration agreement.
1. If either party initiates arbitration, the initiating party must notify the other party in writing via U.S. Mail, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include: (1) the name and address of the party seeking arbitration; (2) a statement of the legal and factual basis of the claim; and (3) a description of the remedy sought. The arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
1. Class and Collective Action Waivers. Enginerity Co. and Business mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator will not have any authority to hear or arbitrate any class and/or collective (“Class Action Waiver”). Notwithstanding any other clause contained in this arbitration agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class and/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.
1. Business agrees and acknowledges that entering into this arbitration agreement does not change Business’s status as per the Business’s Terms of Services agreement.
1. Except as otherwise stated in this arbitration agreement, any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), subject to the following:
1. The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. Unless the parties agree otherwise, the arbitrator shall be an attorney experienced in the law in the underlying dispute and licensed to practice law in the state in which the arbitration is convened, or a former judge from any jurisdiction.
2. Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that Company shall pay all of the Arbitrator’s fees and costs.
3. The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
4. Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
5. The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
6. The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction.
7. Either Enginerity Co. or Business may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
1. Regardless of any other terms of this arbitration agreement, claims may be brought before, and remedies awarded by, an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act (such as the National Labor Relations Board, the U.S. Department of Labor or the Equal Employment Opportunity Commission). This arbitration agreement does not apply to any claim that may not be arbitrated as provided by an Act of Congress or lawful, enforceable presidential Executive Order.
1. The AAA Commercial Arbitration Rules may be found at adr.org/Rules.
1. This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. In the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. This arbitration agreement survives after the termination of the Business Terms and/or after Business ceases any assignment and/or relationship with Enginerity Co.. This arbitration agreement will also continue to apply notwithstanding any change in Business’s responsibilities, position, or title, or if Business transfers companies. Notwithstanding any contrary language in the Business Terms or in any Enginerity Co. policy or other agreement, this arbitration agreement may not be modified or terminated absent a writing signed (electronically or otherwise) by both Business and an authorized representative of Enginerity Co..
Intellectual Property
17.1 Trademarks.
“Enginerity Co.,” “Field Technology. Connect,” the bull logo, and associated marks are trademarks of Enginerity Co., Inc. All other marks, names, and logos displayed by the Platform are the property of Enginerity Co. or of their respective owners. Business agrees not to use Enginerity Co.’s trademarks and other marks, names and logos displayed on the Platform without Enginerity Co.’s prior written consent, which use is otherwise strictly prohibited.17.2 Copyright Matters.
Business represents and warrants that: (a) Business owns or has secured sufficient intellectual property rights to the Business Data to deliver it to Enginerity Co. for use in the Platform as intended by these Business Terms; (b) the Business Data does not and will not contain any content that is unlawful, threatening, harassing, profane, tortious, defamatory, libelous, deceptive, fraudulent, or violates any person’s privacy or publicity rights; and (c) the Business Data does not and will not contain a software virus or other harmful component.
Infringement Notification
In accordance with Section 512(c)(1)(A) of the Digital Millennium Copyright Act (DMCA), we will, in appropriate circumstances, remove content validly-alleged to infringe on a U.S. copyright, and pursuant to Section 512(i)(1)(A), disable and/or terminate the accounts of platform users who engage in infringement.
Upon receipt of proper notification of claimed copyright infringement, Enginerity Co. will follow the procedures outlined herein, pursuant to the DMCA:
1. To file a notice of infringement with Enginerity Co., you must provide a written communication (see contact information, below) that sets forth the information specified in (ii). Be advised that you will be liable for damages (including costs and attorney’s fees) if you materially misrepresent alleged infringement of your copyright(s). It is therefore advisable to contact a lawyer prior to engaging this process, particularly if there are any doubts as to your full and valid ownership of the copyright(s), or the level of protection afforded by copyright laws in the circumstances (i.e., failure to undertake a bona fide consideration of fair use can, inter alia, result in the aforementioned penalties).
2. To expedite our ability to process your request, please submit the following information (including numbering): (1) identify with specificity the copyrighted work that you believe has to been infringed (e.g., “The copyrighted work at issue is the “Name of the work” by “Name of author” and abstract number (“https://url.to/the/specific/work”); (2) identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed (e.g., “https://path.to/the/infringing/work”), and information reasonably sufficient to permit us and the provider of the content to locate the material; (3) provide information reasonably sufficient to allow us to contact you, such as an address, telephone number and email address at which you may be contacted; (4) include the following statement: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or by law”; (5) include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate, and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”; and (6) sign the document.
3. Send the written communication to our designated agent at:
Enginerity Co., Inc.
Attention: Copyright Officer
258 Chapman Road, Suite 202
Newark, DE 19702
Email: copyright@Enginerity Co..com
Fax: 1-855-276-6362
1. Counter-Notification.
The provider of the allegedly infringing content may make a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA in attempt to prevent removal of the materials or disabling of an account. Upon receipt of proper counter-notification of copyright infringement, Enginerity Co. will follow the procedures outlined herein, pursuant to the DMCA:
1. To file a counter notification with us, you must provide a written communication (by fax or regular mail) that sets forth the information specified in the list below. Please note that you will be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others. Accordingly, it is advisable to consult with a lawyer prior to making a counter-notification.
2. To expedite your request, please submit the following information (including numbering: (1) identify the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (e.g., “https://location.of/originally/posted/material”); (2) provide your name, address, telephone number, and email; (3) include the following statement: “I consent to the jurisdiction of Federal District Court for the State of Delaware”; (4) include the following statement: “I will accept service of process from [name of the person who submitted the infringement notification] or his/her agent”; (5) include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the affected material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled”; and (6) sign the document.
3. Send the written communication to our designated agent at:
Enginerity Co., Inc.
Attention: Copyright Officer
258 Chapman Road, Suite 202
Newark, DE 19702
Email: copyright@Enginerity Co..com
Fax: 1-855-276-6362
1. Upon receipt of such counter-notification, we will promptly provide the person who provided the original infringement notification with a copy of the counter-notification, and inform that person that we may replace the removed material or cease disabling access to it in ten (10) business days. We will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14), business days following receipt of the counter notice, unless our designated agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on our system network or Platform.
General Terms18.1 Enginerity CO.’S AGGREGATE LIABILITY TO BUSINESS FOR CLAIMS RELATING TO THESE TERMS, WHETHER IN CONTRACT OR TORT, WILL BE LIMITED TO THE TOTAL FEES PAID OR OWING TO Enginerity CO. FOR WORK ORDERS COMPLETED FOR BUSINESS DURING THE MOST RECENT SIX (6) MONTHS OF THE TERM OF THESE BUSINESS TERMS.
18.2 NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS, INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE, HOWEVER IT ARISES, WHETHER IN CONTRACT OR TORT, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
18.3 Enginerity Co. and Business acknowledge that the foregoing limitations of liability represent a reasonable and negotiated allocation of risk, that these limitations constitute an integral part of these Business Terms, and that absent these limitations the parties would not have executed these Business Terms. The limitations will apply notwithstanding the failure of the essential purpose of any limited remedy.
18.4 This Agreement constitutes the entire agreement between the parties hereto with reference to the subject matter hereof and supersedes all prior agreements and understandings between them relating to the subject matter hereof. No modification hereof shall be binding unless it is in writing and signed by both parties, except that updates of this Agreement by Enginerity Co. and delivered through the Platform or in association with the Platform (e.g., such as to Business’s e-mail address) shall be binding upon Business’s continued use of the Platform or Business’s “click-through” consent (if such facility is provided).
18.5 Enginerity Co. may freely assign this Agreement, in whole or in part. Business may not assign or delegate its obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and assigns.
18.6 If any provision of this Agreement, or the application thereof shall be held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provisions shall remain in full force and effect, and shall be enforced to fullest extent consistent with the remainder of this Agreement and applicable law.
18.7 The terms of this Agreement which do expressly or are intended by their nature to survive its termination shall survive such termination.
18.8 No waiver of any provision of this Agreement shall be effective unless made in writing. No waiver of any provision of this Agreement shall be deemed or construed a waiver of any other provision hereof, nor shall such waiver constitute a waiver of any subsequent breach of the same or any other provision of this Agreement. Unless the context of this Agreement clearly requires otherwise, references to “including” and “include” mean “including, but not limited to”.
18.9 Any legal action brought against Enginerity Co. under this Agreement (including any Work Order issued hereunder) must be commenced within one year after the cause of action accrues and in no event later than one year after the expiration or termination of any corresponding Work Order.
18.10 The rights and obligations of the parties to this Agreement shall be governed by and construed in accordance with the laws of the state of Delaware, without giving effect to its conflicts of law principles. Business agrees and consents to the jurisdiction of the state of Delaware, and expressly waives any and all objections to jurisdiction or venue in such courts.
