TERMS OF SERVICE
Last Updated: October 1, 2019
Welcome, and thank you for your interest in Properly, Inc. (“Properly,” “we,” or “us”) and our website at www.getproperly.com, along with our mobile applications (“App”), related websites, networks, APIs, others applications, and other services provided by us (collectively, our “Platform”). These Terms of Service are a legally binding contract between you and Properly regarding your use of the Platform.
If you are not eligible or do not agree to the Terms, you do not have our permission to use the Platform and may not use it.
These Terms provide that the Platform is provided to you “as is” without warranties of any kind; that Properly’s liability to you is limited; and that all disputes between you and Properly will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except in limited situations). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 30 for the details regarding your agreement to arbitrate any disputes with Properly.
1 . Properly Platform Overview. The Platform is a service that enables property owners and managers (“Hosts”) to create visual checklists of tasks that independent providers of cleaning services, maintenance services, and other on-site services (“Service Providers”) can use when performing such requested services (“Jobs”) for the Host at the Host’s property. The Platform is provided solely on a business-to-business basis and is not available to consumers.
2. Host/Service Provider Relationship.
2.1 Properly does not provide cleaning or other on-site services of any kind, nor does it employ any Service Providers. The Platform merely facilitates the exchange of information and payment between Hosts and Service Providers.
2.2 Once a Host posts a Job, and a Service Provider accepts the Job, the Platform will confirm to the Host and Service Provider that the Job has been booked. Once a Job is booked, an agreement is formed directly between the Host and the Service Provider for the Service Provider to complete the Job. Hosts and Service Providers are entirely responsible for determining the terms and conditions governing any agreement they form for providing and receiving services.
2.3 Properly cannot (and does not) assume any responsibility for the accuracy or reliability of any information provided by Hosts or Service Providers. Host and Service Provider information available on the Platform is primarily user-generated and Properly is under no obligation to vet any user-generated information for accuracy.
2.4 Properly cannot (and does not) vouch for either Hosts or Service Providers.
2.5 If you are a Service Provider, Properly cannot (and does not) vouch that:
- Hosts will pay you;
- the Host is who they say they are;
- you are safe on job site; or
- the Host is authorized to contract with you or employ you;
2.6 If you are a Host, Properly cannot (and does not) vouch that:
- any Job you post will be accepted by a Service Provider;
- any Service Provider is authorized to work or qualified to undertake the services; or
- It has verified the inputs that went into our algorithm for Reputation Scores and Matches are accurate. For example, if the Platform displays that a Service Provider has worked for five Hosts, that only means that five users registered as Hosts have sent checklists to the relevant Service Provider. Properly would not verify that those Hosts exist, that the Service Provider actually performed any work there, or that they were satisfied with the work performed.
3. Eligibility. You must be at least 18 years of age to use the Platform. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Platform, and (c) your registration and your use of the Platform is in compliance with all applicable laws and regulations. If you are using the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms, and you agree, on behalf of such organization, to be bound by these Terms. Except with our prior written consent, you may not access the Platform if you are a direct competitor of Properly, or for purposes of monitoring its availability, performance, functionality, or for any other benchmarking or competitive purposes.
4. Accounts and Registration. To access most features of the Platform, you must register for an account. When you register for an account, you may be required to provide us with information about yourself, such as the entity, organization, or company you represent, your email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
5. Premium Features. Some features of the Platform are available to you free of charge. Other features of the Platform may require payment of fees and/or may be provided under specific terms that are set forth in exhibits to these Terms (“Premium Features”). Premium Features include Remote Inspection and PerformancePay as set forth in Exhibits A and B, as well as the Marketplace. The fees for each Premium Feature will only apply to you if you use that Premium Feature.
6. Fees and Payment. If you use Premium Features that require payment of fees to Properly, the provisions of this Section 6 will apply to all such payments and fees.
6.1 Third-Party Payment Processor. Properly uses a third-party payment processor for all payment transactions. To make or receive payments on the Platform, you must sign up for a payment account with Properly’s third-party payment processor, provide the relevant account information to Properly, and maintain such account in good standing. Your payment account with the third-party payment processor will be governed by an account agreement that is solely between you and the third-party payment processor. For clarity, Properly is not a party to that account agreement.
6.2 Currency. Payments made and received under these Terms will be denominated in the currency identified to you in the App, which will usually be the local currency of the country where the relevant Job is located.
6.3 Fees. Properly and its third-party payment processor collect fees for using certain Platform features and for payments made through the Platform. Before you pay any fees, you will have an opportunity to review the fees you will be charged, such as before you post or accept a Job on the Platform. When you use paid features of the Platform, you agree to pay, and you authorize Properly and its third-party payment processor to collect all the fees that were disclosed to you, either directly through your payment account with the third-party payment processor and/or by deducting or retaining such fees from amounts that are paid by or payable to you on the Platform or through the third-party payment processor. We may change our fees from time to time but will disclose any such changes before they are applied to you. All fees are non-refundable.
6.4 Payment for Jobs. The Host establishes the price they will pay for each completed Job for which payment is made through the Platform. At the Host’s discretion, such payment may differ depending on how the Service Provider completes and documents the Job. For example, Hosts may offer more payment for Jobs that are completed on time or for which the Service Provider uploads images to the Platform showing that the Job was completed in accordance with Host’s instructions. Properly may provide information to the Host such as payment amounts recently offered by other Hosts in the same region, but the payment for each Job is decided solely by the Host.
6.5 Delinquent Accounts. If Properly is unable to collect any applicable fees from your account with our third-party payment processor, Properly may request such fees from you, and you agree to pay such fees to Properly within ten days of Properly’s request.
7. Mobile Device Fees. If you use the Platform on a mobile device, you may incur additional fees and charges from your mobile network operator (“Carrier”) for mobile services such as data transfer and messaging. You are solely responsible for paying all fees and charges from your Carrier, even for Carrier services that you use in connection with the Platform. Please note that your use of the Platform may involve the transmission of large quantities of data, such as uploading and downloading high-resolution photographs. Accordingly, you should use care when selecting a service plan offered by your Carrier.
8. License to the App. Subject to your complete and ongoing compliance with these Terms, Properly grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the App as downloaded directly from Properly or from a legitimate software marketplace (such as Apple’s App Store or the Google Play store), solely in object code format, for your personal use, on a compatible mobile device that you own or control, and for the purpose of accessing and using the Platform in accordance with the Terms. You may not reproduce, distribute, publicly display, or publicly perform the App. You may not interfere with or circumvent any feature of the App, including without limitation any security feature or access control mechanism. You may not use the App if your use would be prohibited by any applicable law.
9. User Content
9.1 User Content Generally. Certain features of the Platform may permit users to upload content to the Platform, including visual checklists, photographs, messages, reviews, video, audio, and other data and text (“User Content”), and to make such User Content available to other users of the Platform. For example, when performing a Job, Service Providers may upload photographs for the Host to view. You retain all copyrights and any other proprietary rights (excepting any licenses granted by these Terms) that you may hold in the User Content that you upload to the Platform.
9.2 Limited License Grant to Properly. When you ask us to provide your User Content to other users (for example, transmitting a Host’s visual checklist to a Service Provider or a Service Provider’s photographs to a Host), we need you to grant us certain rights so that we can fulfill your requests. By uploading User Content to the Platform, you grant us a worldwide, non-exclusive, royalty-free, fully paid, transferable, sub-licensable (through multiple tiers), perpetual, irrevocable license to host, copy, transfer, display, perform, modify for display, and distribute your User Content, for the purpose of operating the Platform and providing your User Content to other users as you choose.
9.3 Limited License Grant to Other Users. If you are a Service Provider, and you upload one or more photographs taken while performing a Job for a Host, you grant that Host a worldwide, non-exclusive, royalty-free, fully paid, transferable, sub-licensable (through multiple tiers), perpetual, irrevocable license to exploit such photographs in any manner the Host chooses.
9.4 User Content Representations and Warranties. You are solely responsible for your User Content. By uploading User Content, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content or have the necessary rights, consents, and permissions to authorize Properly and users of the Platform to exercise the licenses you have granted in this section; and
- Your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Properly to violate any law or regulation.
9.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users upload and will not be in any way responsible or liable for User Content. Properly may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Platform, you will be exposed to User Content uploaded by other users, and you acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You understand that Properly does not make any claims regarding User Content, including but not limited to claims as to its accuracy or authenticity. You agree to waive and do waive any legal or equitable right or remedy you have or may have against Properly with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If Properly is notified that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
10. Prohibited Conduct. BY USING THE PLATFORM, YOU AGREE NOT TO:
10.1 use the Platform for any purpose except the purposes contemplated in these Terms;
10.2use the Platform for any illegal purpose or in violation of any local, state, national, or international law;
10.3 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right or right to privacy;
10.4 post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
10.5 interfere with security-related features of the Platform;
10.6. interfere with the operation of the Platform or any user’s enjoyment of the Platform, including by (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Platform; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Platform, or violating any regulation, policy, or procedure of any such network, equipment, or server;
10.7 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other account on the Platform without permission;
10.8 use the Platform in violation of these Terms, including but not limited to the provisions of Section 3;
10.9 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 22) or any right or ability to view, access, or use any Material; or
10.10 attempt to do any of the acts described in this Section 10, or assist or permit any person in engaging in any of the acts described in this Section 10.
11.1 No Guarantee or Endorsement. Properly has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Job, (ii) the truth or accuracy of any descriptions, ratings, reviews, or other User Content, or (iii) the performance or conduct of any Service Provider, Host or other third party, except as expressly set forth in this section. Properly does not endorse any Service Provider or any services they provide. Any references to a Service Provider being “verified” (or similar language) only indicate that the Service Provider has completed a verification or identification process and nothing else. Any such description is not an endorsement, certification, or guarantee by Properly about any user, including the user’s identity or background or whether the user is trustworthy, safe, or suitable.
11.2 Marketplace Satisfaction Guarantee. Jobs booked using the Marketplace feature of the Platform may include the Marketplace satisfaction guarantee: if the Job is not correctly completed to the Host’s satisfaction, the Host may enter a complaint through the Platform specifying the incorrect checklist items. If a Host enters such a complaint between the hours of 7 a.m. and 10 p.m. (in the time zone where the Job was performed), Properly will either have the incorrect checklist items corrected within three hours or will refund the relevant payment for the Job to the Host. Properly may, at its discretion and depending upon availability, either allow the original Service Provider to correct the incorrect checklist items or may obtain another Service Provider to do so. If Properly obtains another Service Provider to complete the incorrect checklist items, the replacement Service Provider may qualify for part,, or all of the payment for the Job and the original Service Provider may not be paid for the Job.
11.3 Following Up with Service Providers. In addition to the Marketplace Satisfaction Guarantee (when applicable), Properly also provides a feature on the Platform allowing Hosts to communicate directly with the Service Providers who perform the Host’s Jobs, including to ask questions or make follow-up requests regarding the Services. If the Host is still dissatisfied, the Platform also includes features allowing Hosts to review the performance of Service Providers and give feedback.
12. Reputation Scores and Matches. We may calculate and display on the Platform numbers, symbols, badges, reviews, feedback, and other representations intended to indicate the frequency and other characteristics of each user’s interactions with the Platform and with other users of the Platform (“Reputation Scores”), including as indicated by those other users. We may use Reputation Scores or other information we hold to also suggest particular matches between users, typically Hosts and Service Providers (“Matches”). In relation to all Reputation Scores and Matches, you specifically acknowledge and accept:
12.1 We may generate Reputation Scores and Matches using any algorithms, methods, and data we choose, including data we collect from your use of the Platform (including when you offer or perform Jobs) and feedback from other users of the Platform, and we are not required to reveal those algorithms, methods, and data. For more details on some of the factors currently taken into account in our algorithms, please see the FAQ section of the App.
12.2 Reputation Scores and Matches generated by the App will be based on a relatively limited set of data and should be treated accordingly.
12.3 It is the nature of such user reputation, matching, and feedback systems, and necessary to their usefulness that some users will have better or worse Reputation Scores and generate more or fewer Matches than other users. For that reason, we may display Reputation Scores and/or Matches in connection with your account, user name, and activity on the Platform, and we are not required to change, remove, modify or conceal your Reputation Scores and/or Matches, even if you so request, and even if you are dissatisfied with your Reputation Scores and/or Matches.
12.4 The existence and display of Reputation Scores or Matches are in no way meant to indicate an assertion by Properly of the identity, validity, quality, competence, reliability, or any other characteristic of the Host or Service Provider in question. Properly does not represent the correctness of the Reputation Scores and Matches. Without limiting the generality of the foregoing, Properly does not represent that it conducts personal interviews, background checks, or other investigations when determining Reputation Scores and Matches.
13. Safety. Properly is under no obligation to investigate the information users provide through the Platform, such as information contained in user profiles, and does not represent that such information is true or complete. Reputation Scores and any recommended Matches do not (and are not designed or intended to) indicate personal safety or risk levels. Properly encourages all Service Providers and Hosts to take reasonable and prudent safety precautions when meeting new people, particularly inside a private home.
14. Communications. Properly will communicate with you by various methods, including email, text messages, and information transmitted through the Platform, such as push notifications on your mobile device. Properly may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Platform and the status of Jobs, payment, and related issues. These text messages are essential to the Platform. If you do not wish to receive operational text messages from us, do not use the Platform. Text messages may be sent using an automatic telephone dialing system. When you install the App on your mobile device, you agree to receive push notifications, which are messages the App sends on your mobile device even when you are not actively using the App. You can turn off push notifications from our App by visiting your mobile device’s “settings” page. We also communicate with you using email. Many of our emails provide you with operational information about our Platform and your use of it. If we send you any promotional email, we will include unsubscribe instructions in the promotional email describing how to opt out of promotional emails from Properly.
15. Location Services. Some of the Platform features may enable us to access the then-current location of your mobile device to tailor your experience with the Platform based on your location. In order to use such features, you must enable certain features of your mobile phone such as GPS, Wi-Fi, and Bluetooth, which enable us to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors (“Location Services”). You have the option to disable Location Services or block our access to Location Services on your mobile device, but if you choose to disable or block Location Services, you will not be able to utilize certain features of the Platform. By enabling Properly’s access to Location Services on your device, you allow Properly to use Location Services data to provide you with features related to and based on your then-current location, and you acknowledge that Location Services data that Properly collects is directly relevant to your use of the Platform.
16. Maintenance. Properly may update or provide new versions of the Platform at any time in its sole discretion. The Platform may be unavailable from time to time in connection with such updates, routine maintenance, or for other causes such as failures of infrastructure or the correction of other failures; however, Properly will make reasonable efforts to conduct any routine updates or maintenance outside of standard business hours and/or to provide prior notice on the Platform. Properly may at its discretion use technology (including digital rights management protocols) or other means to protect the Platform, protect the data of its users, or prevent a breach of these Terms.
17. Beta Features. From time to time, Properly may invite you to try features of the Platform that are not generally available to users (“Beta Features”). You may accept or decline any such trial in your sole discretion. Where offered, Beta Features are for evaluation purposes only, and Properly may elect to withdraw, discontinue, or decline to support Beta Features at any time.
18. Linked Websites. The Platform may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
19. Termination; Discontinuation, and Modification of the Platform. You may terminate these Terms at any time by (i) contacting customer service at firstname.lastname@example.org and requesting termination of your account, (ii) uninstalling the App, and (iii) ceasing all use of the Platform. If you violate any provision of these Terms, your permission from us to use the Platform will terminate automatically. In addition, Properly may, in its sole discretion, terminate your user account on the Platform or suspend or terminate your access to the Platform at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. Upon termination of these Terms for any reason, Sections 9 and 19 through 30 will survive.
21. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, Properly will use reasonable endeavors to publicly post and obtain your consent to those material modifications. Immaterial modifications are effective upon publication. If you do not agree with any modification of these Terms, your only remedy is to terminate these Terms, which you may do at your sole discretion as set forth in Section 19. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
22. Ownership; Proprietary Rights. The Platform is owned and operated by Properly. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform (“Materials”) provided by Properly are protected by intellectual property and other laws. All Materials contained in the Platform are the property of Properly or our third-party licensors. Except as expressly authorized by Properly, you may not make use of the Materials. Properly reserves all rights to the Materials not granted expressly in these Terms.
23. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Platform, or your experiences with the Platform or with other users of the Platform (collectively, “Feedback”), then you hereby grant Properly a perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform and create other products and services.
24. Nature of Relationship. The relationship between you and Properly is that of independent contractors. Nothing in these Terms shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, or employee of the other. Neither party shall have, or hold itself out to any third party as having, any authority to make any statements, representations, or commitments of any kind, or to take any action, that shall be binding upon the other, except as provided for herein or authorized in writing by the party to be bound. Properly does not employ, pay, or supervise any Service Providers, nor does Properly serve as a hiring or contracting agency for Service Providers. If a Host chooses to hire a Service Provider, that business relationship is entirely between the Host and the Service Provider. Properly merely provides certain online features and functionality (such as visual checklists) as part of the Platform offered to both Hosts and Service Providers. If you are a Service Provider, you expressly acknowledge that you are not an employee of Properly, and that you are not entitled to any benefits of employment with Properly, including but not limited to unemployment benefits. You expressly acknowledge that you are responsible for filing and paying your own taxes.
25. Indemnity. You are responsible for your use of the Platform, and you will defend and indemnify Properly and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Properly Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Platform; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including other users of the Platform. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case,, you agree to cooperate with our defense of that claim.
26. Disclaimers; No Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PLATFORM AND ANY CONTENT AVAILABLE THROUGH THE PLATFORM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. THE PROPERLY ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, SATISFACTORY QUALITY, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE PROPERLY ENTITIES DO NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM, WILL BE UNINTERRUPTED, SECURE, RELIABLE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLATFORM OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL CREATE ANY WARRANTY REGARDING ANY OF THE PROPERLY ENTITIES OR THE PLATFORM THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE PLATFORM, YOUR DEALING WITH ANY OTHER PLATFORM USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM. YOU USE THE PLATFORM AT YOUR OWN DISCRETION AND RISK AND ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER OR MOBILE DEVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE PLATFORM.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
27. Limitation of Liability
IN NO EVENT WILL THE PROPERLY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLATFORM OR ANY MATERIALS OR CONTENT ON THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PROPERLY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
THE AGGREGATE LIABILITY OF THE PROPERLY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLATFORM OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) ONE HUNDRED UNITED STATES DOLLARS OR (B) THE AMOUNT YOU HAVE PAID TO PROPERLY FOR ACCESS TO AND USE OF THE PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENTS OR CIRCUMSTANCES GIVING RISE TO CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND BUT FOR THIS ALLOCATION, THE PLATFORM WOULD NOT BE PROVIDED TO YOU ON THE SAME TERMS. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 27 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
28. Governing Law. These Terms are governed by the laws of the following jurisdictions, in each case, notwithstanding the conflict of law principles of such jurisdictions:
28.1 New South Wales, Australia, if you are accessing and using the Platform primarily in Australia;
28.2 the State of Delaware in the United States of America, if you are accessing and using the Platform primarily in the United States of America; and
28.3 New Zealand, if you are accessing and using the Platform primarily in any jurisdiction other than Australia or the United States of America.
28.4 If a lawsuit or court proceeding is permitted under these Terms despite Section 30, then you and Properly agree to submit to the personal and exclusive jurisdiction of the courts located in New South Wales, Australia, San Francisco, California, or New Zealand (respectively) as the exclusive forum for the resolution of such lawsuit or court proceeding. We operate the Platform from our offices in California, and we make no representation that Materials included in the Platform are appropriate or available for use in other locations outside California.
30. Dispute Resolution and Arbitration
30.1 Generally. In the interest of resolving disputes between you and Properly in the most expedient and cost-effective manner, you and Properly agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PROPERLY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
30.2 Exceptions. Despite the provisions of Section 30.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
30.3 Notice and good faith resolution. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified mail or by an internationally recognized courier service, in each case with all postage and delivery fees paid and a delivery confirmation required, or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Properly’s address for Notice is: Properly, Inc., 5214F Diamond Heights Blvd #356, San Francisco, CA 94131-2175, USA. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Properly may commence an arbitration proceeding.
30.4 Process. Where a party seeks to commence an arbitration proceeding pursuant to Section 30:
- and the Platform is provided in Australia: it will be resolved by arbitration under the dispute shall be resolved in accordance with the Australian Centre for International Commercial Arbitration (“ACICA”) Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. If the parties are unable to agree on the appointment of an arbitrator, one shall be appointed by the President of the ACICA. During such arbitration, both parties may be represented by a duly qualified legal practitioner
- and the Platform is provided in the United States of America: it will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Properly; and
- the Platform is provided elsewhere in the World (including New Zealand): it will be resolved by arbitration under the Arbitration Act 1996 (New Zealand). If the parties are unable to agree on the appointment of an arbitrator, one shall be appointed by the President of the New Zealand Law Society. During such arbitration, both parties may be represented by a duly qualified legal practitioner. A party to arbitration under this Agreement may appeal to the High Court on any question of law arising out of an award, and any matter relating to the construction of this Agreement shall be considered a question of law.
30.5 No Class Actions. YOU AND PROPERLY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Properly agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
30.6 Enforceability. If Section 28.5 is found to be unenforceable or if the entirety of this Section 27is found to be unenforceable, then the entirety of this Section 28 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 26 will govern any action arising out of or related to these Terms.
32. Notice Regarding Apple. This Section 30 only applies to the extent you are using our App on an iOS device. You acknowledge that these Terms are between you and Properly only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Platform or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Platform. If the Platform fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Platform. Apple is not responsible for addressing any claims by you or any third party relating to the Platform or your possession and/or use of the Platform, including: (a) product liability claims; (b) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Platform and/or your possession and use of the Platform infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Platform. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
33. Contact Information. The Platform is offered by Properly, Inc., located at 5214F Diamond Heights Blvd #356, San Francisco, CA 94131-2175, USA. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
The terms set forth in this Exhibit A relate to the Remote Inspection feature available on the Platform.
- Overview and Definition. “Remote Inspection” is a feature of the Platform in which Properly reviews certain Job-related information entered by Service Providers on the Platform, evaluates such information according to objective criteria and standards established by the Host for such Job, and then provides feedback to such Service Provider, if appropriate, and reports the evaluation results to the Host.
- Jobs and Evaluation Criteria. Host will use the functionality provided by the Platform to enter information regarding Jobs for which Remote Inspection is desired including the objective criteria that Properly should use when reviewing the performance of Service Providers undertaking such Jobs (“Evaluation Criteria”).
- Monitoring and Evaluation. When Service Provider enters information about the completion of a Job such as reporting arrival and/or departure time, submitting verification images, or checking off tasks as completed, Properly will promptly evaluate such information in light of the Evaluation Criteria to determine if any follow-up action is required.
- Follow-Up Action. Properly will take follow-up action if certain Evaluation Criteria are not met. Such follow-up action may include contacting Service Provider with suggestions for corrective steps to satisfy the Evaluation Criteria, contacting Host with an alert, or other remedial actions.
- Reports. Properly will report to Host whether Evaluation Criteria are met. If the Evaluation Criteria were not met, such report will include a description of the follow-up actions that were taken, and will provide verification images that show whether the Evaluation Criteria were met after such follow-up action.
- Fees. Use of Remote Inspection requires payment of fees to Properly as further set forth in Section 6 of the Terms. Before you incur any fees, you will have an opportunity to review the fees that you will be charged. Fees may be disclosed to you on the Platform, such as when you post or accept a Job, or by email or other reasonable method.
PERFORMANCEPAY (PAYMENT FACILITATION)
The terms set forth in this Exhibit B relate to the PerformancePay feature available on the Platform.
- Overview and Definition. “PerformancePay” is a feature of the Platform in which Properly (i) facilitates certain payments made by Host to Service Providers and (ii) when so directed by Host, varies such payment according to criteria provide by Host and information collected by the Platform regarding Service Providers’ performance of relevant Jobs.
- Jobs and Evaluation Criteria. Host will use the functionality provided by the Platform to enter information regarding Jobs for which PerformancePay functionality is desired. Information to be provided includes base payment amounts, available performance bonuses, and the objective criteria that Properly should use when reviewing the performance of Service Providers undertaking such Jobs and assessing their eligibility for such base amounts and bonuses (“Evaluation Criteria”) which Properly may use to calculate the total amount of money Host wishes to pay to Service Provider for completing each such Job.
- Monitoring and Evaluation. When Service Provider enters information about the completion of a Job such as reporting arrival and/or departure time, submitting verification images, or checking off tasks as completed, Properly will promptly evaluate such information in light of the Evaluation Criteria provided by Host to determine the amount of money payable to Service Provider for completion of such Job (“Payment”).
- Payment Alerts. After calculating Payment for a Job, Properly will inform Host in any manner mutually agreed upon by the parties (such as via the Platform, by email, or by text message) that the Job has been reported completed by the Service Provider and the amount of Payment that has been calculated (a “Payment Alert”).
- Nonpayment Instructions. If Host believes that the Payment calculated by Properly is incorrect or otherwise wishes to prevent a Payment to a Service Provider, Host may within 24 hours of such Payment Alert issue an instruction through the Platform or by other means designated by Properly, if any, directing Properly not to make such Payment (a “Nonpayment Instruction”).
- Facilitation of Payment. Unless Host timely enters a Nonpayment Instruction, Properly will direct Properly’s third-party payment processor to (i) make the Payment to the Service Provider for performance of such Job and (ii) deduct an amount from the Host’s account with the payment processor that is equal to such Payment plus any applicable fees.
- Fees. Use of PerformancePay functionality requires payment of fees to Properly as further set forth in Section 6 of the Terms. Before you incur any fees, you will have an opportunity to review the fees that you will be charged. Fees may be disclosed to you on the Platform, such as when you post or accept a Job, or by email or other reasonable method.