TEKAGOGO, INC. TERMS AND CONDITIONS
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND TEKAGOGO.
In these Terms, the words “including” and “include” mean “including, but not limited to.” The term “you” means yourself, as an individual or on behalf of your company either as a skilled independent technician (“Tek”) or a user of a Tek’s services (“User”).
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Tekagogo may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason. However, as described below, the termination of these Terms by Tekagogo will have no impact whatsoever on the continued enforceability of the binding arbitration agreement.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH TEKAGOGO ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on Tekagogo.com) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). With the exception of the binding arbitration Agreement as set forth below, supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services. These Supplemental terms can be found at the following links (which may be updated from time to time): goodhire.com/screening-policy; goodhire.com/terms; https://articles.braintreepayments.com/risk-and-security/compliance/ecommerce-website-requirements#privacy-policy.
Tekagogo may amend the Terms from time to time. Amendments will be effective upon Tekagogo’s posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If Tekagogo changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Tekagogo written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Tekagogo, Inc., or (b) by email from the email address associated with your Account to: firstname.lastname@example.org. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
Tekagogo’s collection and use of personal information in connection with the Services is described in Tekagogo’s Privacy Statements located at www.tekagogo.com/privacy
2. Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND TEKAGOGO CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND TEKAGOGO TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Informal Negotiations
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Tekagogo and/or between a Tek and a User and vice-versa (each a “Claim” and collectively “Claims”), you and Tekagogo agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration. This pre-arbitration negotiation shall be initiated by providing written notice to the other party—including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to 1911 2nd St., Livermore, CA 94550 or email@example.com. If necessary to preserve a Claim under any applicable statute of limitations, you or Tekagogo may initiate arbitration while engaging in the informal negotiations.
During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
After a good faith effort to negotiate, if you or Tekagogo believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”).
(b) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND TEKAGOGO MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate contained in this Section (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of this Agreement and your relationship with Company.
Claims covered by this Arbitration Agreement include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof); the Tekagogo lead generation Platform; your relationship with Tekagogo; the threatened or actual suspension, deactivation or termination of your Account or this Agreement; payments made by you or any payments made or allegedly owed to you (where Tekagogo served as a lead generator connecting you to a potential customer in need of your services); any city, county, state or federal wage-hour law; compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress; any promotions or offers made by Company; breach of any express or implied contract or breach of any express or implied covenant; negligence, tort, intentional torts, breach of warranty; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters; and all other federal and state statutory and common law claims.
If there is a dispute about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of this arbitration agreement), you and Tekagogo agree that this threshold dispute shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disputes, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND TEKAGOGO ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY THE TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and Tekagogo agree that any arbitration will be limited to the Claim between Tekagogo and you individually and/or between a Tek and a User individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND TEKAGOGO ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and Tekagogo otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Company, which are addressed separately in Section 2(d) below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, to the fullest extent allowed by law: (1) you and Tekagogo agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq. seeking civil penalties, in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Company agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”).
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement (e.g. Claims styled as a PAGA action wherein any recovery goes to the putative employee(s) and not the State of California); and (iii) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. You and Tekagogo agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, both you and Company will have the opportunity for reasonable written and oral discovery of non-privileged information that is relevant to the Claim(s), including but not limited to, the opportunity to take up to five (5) depositions per side (with the right to request permission from the arbitrator to take additional depositions). The arbitrator may award any individualized remedies that would be available in a court of law. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator is required to provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Company initiates arbitration under this Arbitration Agreement, Company will pay all AAA filing and arbitration fees.
(ii) If you file a Claim in accordance with this Arbitration Agreement concerning a dispute between you and another Tek or User relating to Services rendered by a Tek (whether or not you name the Company as a party to the dispute) you will pay all AAA initial filing fees, while any additional arbitration related fees and expenses shall be split 50/50 between you and the respondent (i.e. the Tek or User you are asserting claims against), unless the arbitrator, at the arbitrator’s sole discretion and consist with the AAA Rules, mandates a different division.
(iii) If you file a Claim against the Company in accordance with this Arbitration Agreement and the associated claim for damages does not exceed $10,000, Company will pay all AAA filing and arbitration related fees and expenses unless (a) the arbitrator determines that the dispute is primarily between you and a third-party (i.e. between a Tek and a User and vice-versa), at which point the payment of arbitration related fees and expenses shall be determined as set forth in Section 2(e)(ii) above, or (b) the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(iv) If your file a Claim in accordance with this Arbitration Agreement and the associated claim for damages exceeds $10,000, Company shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses, and you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you reside in, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. The Company’s obligation to pay arbitration fees and expenses shall be limited if (a) the arbitrator determines that the dispute is primarily between you and a third-party (i.e. between a Tek and a User and vice-versa), at which point the payment of arbitration related fees and expenses shall be determined as set forth in Section 2(e)(ii) above, or (b) the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(v) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(vi) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Company agree otherwise, any arbitration hearings between Tekagogo and you (and you and a third-party covered by this Agreement) will take place in the county of your billing address. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims may be, but are not required to be, arbitrated under the Arbitration Agreement:
- Claims for workers’ compensation, disability insurance and unemployment insurance benefits (to the extent applicble);
- Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
- Applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
- Claims that may not be subject to arbitration as a matter of general law not preempted by the Federal Arbitration Act.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However, you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
Except as otherwise provided in the severability provisions in Sections 2(c) and 2(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
You may opt out of the Arbitration Agreement by notifying Company in writing within thirty (30) days of your agreement to these Terms of Service. To opt out, you must send a written notification to Company at Tekagogo, Inc., 1911 2nd St., Livermore, CA 94550 Attention: Legal or an email to firstname.lastname@example.org, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
3. The Services
Tekagogo is a lead generation service provider that utilizes mobile applications and related services (each, an “Application”) which enables Users to identify their specific need for equipment, logistics and/or software repair or installation services (“Leads”). Users and/or the Company post Leads on the Platform for Teks to use as a lead generator, who then arrange and schedule a time for the Tek to provide the services requested by the User. The Teks are then engaged by the Users to provide such services through Tekagogo’s seamless Application, including payment process provided by its third party providers (“Third Party Providers”). Unless otherwise agreed by Tekagogo in a separate written agreement with you, the Services are made available solely for your commercial use in your own professional practice. YOU ACKNOWLEDGE THAT A TEKS ABILITY TO BE ENGAGED BY USERS FOR THE PURPOSE OF REPAIR, INSTALLATION, TROUBLE SHOOTING, LOGISTICS AND/OR SOFTWARE SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH TEKAGOGO AS THE TEKS’ EMPLOYER, MANAGER, JOINT VENTURER, CO-OWNER OR ANY OTHER AGENCY RELATIONSHIP, NOR DOES IT CREATE ANY SUCH RELATIONSHIP BETWEEN THE USER AND TEKAGOGO.
Subject to your compliance with these Terms, Tekagogo grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Tekagogo and Tekagogo’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Tekagogo; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
(c) Third Party Services and Content.
The Services and all rights therein are and shall remain Tekagogo’s property or the property of Tekagogo’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Tekagogo’s company names, logos, product and service names, trademarks or services marks or those of Tekagogo’s licensors.
(e) Onboarding Process
You must register through Tekagogo’s Tek registration process. You agree to comply with the requirements as provided during the registration process, which may include, among other things, a background check.
4. Access and Use of the Services
(a) User Accounts.
In order to use most aspects of the Services, you must register for and maintain an active Services account for your practice (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise. Account registration requires you to submit to Tekagogo certain personal information, such as your business or personal name, address, mobile phone number and contact person within your office, as well as at least one valid payment method supported by Tekagogo. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Tekagogo in writing, you may only possess one Account.
(b) User Requirements and Conduct.
The Service is for lead generation which enables Users to contact Teks, and vice-versa, to provide equipment repair, installation, trouble shooting, logistics and software service. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes. You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.
(c) Text Messaging and Telephone Calls.
You agree that Tekagogo may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with a Tekagogo account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from Tekagogo at any time, either by texting the word “STOP” to email@example.com using the mobile device that is receiving the messages, or by contacting help.Tekagogo.com. If you do not choose to opt out, Tekagogo may contact you as outlined in its User Privacy Statement, located at www.Tekagogo.com/privacy.
(d) Referrals and Promotional Codes.
Tekagogo may, in its sole discretion, create referral and/or promotional codes (“Promo Codes”) that may be redeemed for discounts on future Services and/or a Third Party Provider’s services, or other features or benefits related to the Services and/or a Third Party Provider’s services, subject to any additional terms that Tekagogo establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Tekagogo; (iii) may be disabled by Tekagogo at any time for any reason without liability to Tekagogo; (iv) may only be used pursuant to the specific terms that Tekagogo establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Tekagogo reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that Tekagogo determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of Tekagogo’s Terms.
(e) Your Provided Content.
Tekagogo may, in Tekagogo’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Tekagogo through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions “Content”). Any Content provided by you remains your property. However, by providing Content to Tekagogo, you grant Tekagogo a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Tekagogo’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all Content or you have all rights, licenses, consents and releases necessary to grant Tekagogo the license to the Content as set forth above; and (ii) neither the Content, nor your submission, uploading, publishing or otherwise making available of such Content, nor Tekagogo’s use of the Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Tekagogo in its sole discretion, whether or not such material may be protected by law. Tekagogo may, but shall not be obligated to, review, monitor, or remove Content, at Tekagogo’s sole discretion and at any time and for any reason, without notice to you.
(f) Acceptable Use Policy
The Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Platform, you should not share your personal contact information with any other Teks or Users.
Without limitation, while using the Platform, you may not:
- Defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Company staff, or use information learned from the Platform or during the performance of a project to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other Tek, User or Company staff;
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any Tek, User, third party, or Company;
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer;
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Platform;
- Use the Platform for any unauthorized purpose, including, but not limited to posting or completing a project in violation of local, state, provincial, national, or international law;
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly;
- Advertise or offer to sell any goods or services for any commercial purpose through the Platform which are not relevant to the Company’s business as determined by the Company at its sole discretion;
- Conduct or forward surveys, contests, pyramid schemes, or chain letters;
- Impersonate another person or allow any other person or entity to use your identification to post or view comments;
- Restrict or inhibit any other person or entity from using and enjoying the Platform;
- Imply or state that any statements you make are endorsed by Company, without the prior written consent of Company;
- Hack or interfere with the Platform, its servers or any connected networks;
- Upload content to the Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
- Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
- Use the Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Platform as set forth herein;
- Use the Platform to collect usernames, email addresses, or other personal information of Users by electronic or other means;
- Use the Platform in violation of this Agreement;
- Attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the Company’s Platform, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
- Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number; or
- Cause any third party to engage in the restricted activities above.
You understand that all submissions made to any public area will be public and that you will be publicly identified by your name or login identification when communicating in any public area. Company will not be responsible for the action of any Users or Teks with respect to any information or materials posted in a public area.
(g) Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Tekagogo does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
5. Contract between User and Tek
You acknowledge and agree that a legally binding contract (the “Service Contract”) is formed when you agree on the terms of a project pursuant to, among other conditions, the payment provisions as set forth in Section 6. The terms of the Service Contract include the terms set forth in this Section, the engagement terms proposed and accepted on the Tekagogo Platform (the “Platform”), and any other contractual terms accepted by both the User and Tek to the extent such terms do not conflict with the terms in this Agreement, including this Section, and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Contract and the formation of a Service Contract will not, under any circumstance, create an employment or other service relationship between Company and the you (or Assistants as defined herein), nor will it create an employment relationship between the User and the Tek (or Assistants). Company’s role is restricted solely to acting as a limited payment collection agent and lead generator for Teks in order to advertise their professional expertise and facilitate leads with Users as well as the payment from Users to Teks for the services independently negotiated between a Tek and a User. In acting as the limited payment collection agent Company disclaims any other agency or authority to act on behalf of Teks and/or Users, and assumes no liability or responsibility for your acts or omissions, either within or outside of the Platform.
Where approved in advance by the User, the Tek is not obligated to personally perform all or a portion of the contracted project. Before any services are performed by a Tek’s assistant(s), helper(s), subcontractor(s) or other personnel you engage (collectively “Assistants”), Teks must confirm that the Assistants are familiar with, and will abide by, all of the terms and conditions of this Agreement, including the Arbitration Provision as set forth in Section 2. Teks assume full and sole responsibility for the acts and omissions of such Assistants, including without limitation the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable income tax withholdings as to the Tek and all persons engaged by the Tek in the performance of contracted services between Teks and Users.
While using the Platform, Users, in their sole discretion, determine whether they will be present or not when a project is performed and/or completed. Users who elect not to be present when a project is performed and/or completed agree that if someone other than them is present when the project is performed, they are appointing that person as their agent (“User’s Agent”) and the Tek (including Assistants) may take and follow direction from the User’s Agent as if such direction was given from the User him/herself/itself.
The User shall pay Tek directly for completed projects through Company’s portal as indicated in the portal at the rates agreed to by the parties in the Service Contract. You agree to comply with the Service Contract and this Agreement during the engagement, performance and completion of a project. You agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding. Company reserves the right to suspend or terminate any account (of a User and Tek) or project pending the resolution of any dispute.
6. Payment and Service Contract Charges
Users will be charged upon completion of the Tek’s services as set forth in the Service Agreement (“Charges”). Tekagogo will receive and/or enable the payment by User of the applicable Charges for services or goods obtained from the Tek. Charges will be inclusive of applicable taxes where required by law.
As between you and Tekagogo, Tekagogo reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Tekagogo’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. Tekagogo may from time to time provide certain Users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. A User may elect to cancel a request for Services at any time prior to the commencement of such Services, in which case the User may be charged a cancellation fee. Tekagogo may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers or other third parties.
In certain cases, with respect to Third Party Providers, Charges you incur will be owed directly to Third Party Providers, and Tekagogo will collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider. In such cases, you retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third Party Provider. Tekagogo will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to Tekagogo or its affiliates, where Tekagogo is solely liable for any obligations to Third Party Providers. Tekagogo does not designate any portion of your payment as a tip or gratuity to a Third Party Provider.
(a) Calculation of Service Charges and Payment to Tek.
For each Service Contract Teks are entitled to charge Users for the services they complete (“Charges”) while using the Tekagogo lead generation Platform. However, Teks grant Tekagogo the absolute and unconditional right to independently establish and set the Charges (whether it be an hourly rate and/or per project rate), which may be determined by, among other factors, market conditions, supply and demand, volume, and competitive analysis. Teks acknowledge and agree that the Charges set by Tekagogo is the highest amount the User will be required to pay for a particular Service Contract.
(b) Tek’s Receipt of Net Charges
Company agrees to remit, or cause to be remitted (to the extent any monies are held by a third-party), to Tek the net amount of a particular Change relating to a Service Contract after deducting the lead generation marketing fees, services fees, and other applicable Company and third-party fees and deductions. Absent extenuating circumstances, as determined at Company’s sole discretion, Company will remit to a Tek the net amount of any Charges related to a Service Contract within thirty (30) business days of receiving sufficient funds from the User. Should a dispute arise between a User and a Tek regarding any services rendered, the Company at its sole discretion, may choose not to disburse any funds until, at the Company’s sole discretion, the dispute has been sufficiently resolved.
Teks acknowledge and agree that they are required to: (i) complete all tax registration obligations and calculate and remit all tax liabilities related to Tek’s provision Services as required by applicable law; and (ii) provide Company with all relevant tax information, to the extent requested. Teks further acknowledge and agree that they are responsible for taxes on their own income arising from the performance of Services to Users. Notwithstanding anything to the contrary in this Agreement, Company may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from a Teks provision of Services and/or provide any of the relevant tax information directly to the applicable governmental tax authorities as required and/or requested.
Teks further acknowledge and agree that the amount actually paid to Teks for Services provided to a User will be the net amount after the Company collects the Charges from the User and then deducts from said Charges its lead generation marketing fees, services fees, and other applicable Company and third-party fees and deductions.
7. Disclaimers; Limitation of Liability; Indemnity
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TEKAGOGO DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, TEKAGOGO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TEKAGOGO DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF ANY TEK OR THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
(b) LIMITATION OF LIABILITY.
TEKAGOGO SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF TEKAGOGO, EVEN IF TEKAGOGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TEKAGOGO SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF TEKAGOGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TEKAGOGO SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND TEKAGOGO’S REASONABLE CONTROL.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, TEKAGOGO’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON TEKAGOGO’S CHOICE OF LAW PROVISION SET FORTH BELOW.
You agree to indemnify and hold Tekagogo and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Tekagogo’ s use of your User Content; (iv) your violation of the rights of any third party, including Third Party Providers; (v) your breach of a Service Agreement.
TEKAGOGO DOES NOT PERFORM ANY PROJECTS OR REPAIRS FOR USERS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM ANY PROJECTS OR REPAIRS FOR USERS. EACH USER ASSUMES ALL LIABILITY FOR PROPER CLASSIFICATION OF SUCH USER’S WORKERS BASED ON APPLICABLE LEGAL GUIDELINES. IF A USER, YOU INDEMNIFY AND HOLD THE COMPANY AND AFFILIATES HARMLESS, AND IF A TECK, YOU FULLY AND FINALLY RELEASE TEKAGOGO AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, LOSSES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES THAT TECK OR ASSISTANTS MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, COMMON LAW, CIVIL LAW, STATUTE OR OTHERWISE, REGARDING ANY PROJECTS, REPAIRS OR SERVICE CONTRACTS OR THE USE OF THE PLATFORM, INCLUDING WITH RESPECT TO “MISCLASSIFICATION” OF TEKS AND ASSISTANTS (AS INDEPENDENT CONTRACTORS) AND THE TERMINATION OR CESSATION OF ANY PROJECT, REPAIR, AND SERVICE AGREEMENT, THIS AGREEMENT OR THE USE OF THE PLATFORM.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges and agrees that the Company does not, in any way, supervise, scope, direct, control or monitor a Teks work in any manner. Company does not set a Tek’s work hours or location of work. Company does not control or dictate how a Tek performs any services with respect to a Service Contract or any other projects performed based on a Service Contract with a User. Company will not provide any equipment, tools, labor or materials needed for a particular project or Service Contract. Tekagogo does not provide any supervision to Teks or Users.
The Company Platform is not an employment agency service or business and the Company is not an employer of any User or Tek. As such, the Company is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, Canada Pension Plan, social security, disability insurance or any other applicable federal, provincial or state withholdings in connection with a User’s use of the Platform. Teks acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Agreements and performing projects and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
9. Termination and Suspension
Company may terminate or limit your right to use the Platform in the event that the Company is investigating or believes that you have breached any provision of this Agreement, by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice.
If Company terminates or limits your right to use the Platform pursuant to this Section, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. If Company terminates or limits your right to use the Platform as a User due to a breach, you will not be entitled to any refund of unused balance in your account, if any.
Even after your right to use the Platform is terminated or limited, this Agreement will remain enforceable against you. Company reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with this Agreement.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Platform at its sole discretion. Company is not liable to you for any modification or discontinuance of all or any portion of the Platform. Company has the right to restrict anyone from completing registration as a Teck if Company believes such person may threaten the safety and integrity of the Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Platform. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
10. Other Provisions
(a) Choice of Law
These Terms are governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 2 of these Terms, are only intended to specify the use of California law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside in California. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 2 or to any arbitrable disputes as defined therein. Instead, as described in Section 2, the Federal Arbitration Act shall apply to any such disputes.
Tekagogo may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Tekagogo, with such notice deemed given when received by Tekagogo, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o Tekagogo, Inc.
You may not assign these Terms without Tekagogo’s prior written approval. Tekagogo may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Tekagogo’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Tekagogo or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Tekagogo’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Tekagogo in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.