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FREQUENTLY ASKED QUESTIONS
Fair Credit Reporting Act Disclosure
As an applicant for employment with Spare Mommy, you are a consumer with rights under the Fair Credit Reporting Act (“FCRA”). Spare Mommy may obtain and use information contained in a consumer report from a consumer reporting agency about you in any of the following circumstances: (1) when considering your application for employment, (2) when making a decision whether to offer you employment, (3) when deciding whether to continue your employment (if you are hired), or (4) making other employment-related decisions directly affecting you. A “consumer reporting agency” is a person or business that, for monetary fees, dues, or on a cooperative nonprofit basis, regularly assembles or evaluates consumer credit information or other information on consumers for the purpose of furnishing consumer reports to others, such as Spare Mommy. A “consumer report” means any written, oral, or other communication of any information by a consumer reporting agency bearing on your credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing your eligibility for employment purposes. If Spare Mommy obtains a consumer report about you and considers any information in the consumer report when making an employment-related decision that directly and adversely affects you, you will be provided with a copy of the consumer report and a description of your rights under the FCRA before the decision is made final by Spare Mommy. You may also contact the Federal Trade Commission about your rights under the FCRA as a consumer with regard to consumer reporting agencies. Applicant's Statement, Authorization, and Release By clicking below, I hereby voluntarily authorize Spare Mommy to obtain a consumer report about me from a consumer reporting agency and to consider this information when making decisions regarding my employment at Spare Mommy. I understand that I have rights under the Fair Credit Reporting Act, including the rights discussed above. By clicking below I also voluntarily authorize Spare Mommy or its agents to obtain information concerning my background, employment, and qualifications from any governmental agencies, past or present employers, academic institutions, military services or agencies, and any listed or developed personal reference. I hereby release Spare Mommy, its agents and all persons, agencies, and entities providing information or reports about me from any and all liability or damage, that may arise out of the requests for, or release of, such information or reports. I certify that the answers given herein are true and complete to the best of my knowledge. I authorize whatever investigation is deemed necessary to confirm statements contained in this application. I understand my application for employment may be rejected or if I am hired, that my employment may be terminated if it is determined at any time through investigation or otherwise that any untrue or misleading statements were made in this application or material information is omitted. I understand that neither this document nor any other offer of employment from the employer constitutes an employment contract, and that my employment at Spare Mommy would be "at will". If extended a contingent job offer, I understand that I must successfully complete a background check and a medical exam, including a drug screen. If I am employed by Spare Mommy or an affiliate or subsidiary, I hereby authorize Spare Mommy or its agents to request from various investigative services and/or Social Security Administration a statement of my earnings and any other information as may be reasonably necessary in order to properly calculate retirement or other benefits. This authorization will remain in effect until it is expressly revoked in writing addressed to Spare Mommy’s Human Resources.
Agreed to by (Name): _______________________________________________________
Agreed to by (signature): _____________________________________________________
Terms of Service v.1.0
These Terms of Service constitute a legally binding agreement (“Agreement”) between you and SpareMommy.com, (“Company” or “SpareMommy.com”) governing your use of the SpareMommy.com Platform (defined below), the Company’s website (SpareMommy.com.com or the “Site”) or mobile applications. The platform services provided by Company, the Site and mobile applications together are hereinafter collectively referred to as the “SpareMommy.com Platform.”
This document contains references to “SpareMommy.com” and “Spare Mommy” in various manners. SpareMommy.com is the Company which is engaged in arranging Spare Mommies and clients to connect. A Spare Mommy is the person who performs the various work in this case.
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 20) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SPAREMOMMY.COM PLATFORM.
A few highlights of these Terms of Service include:
- Your agreement that the SpareMommy.com Platform is provided “as is” and without warranty (Section 17).
- Your agreement that Company has no liability regarding the SpareMommy.com Platform (Section 18).
- Your acknowledgment and agreement that Company does not supervise, direct or control a Spare Mommy’s work or the Works in any manner (Section 1).
- Your agreement that the Company has no liability regarding the performance of Works.
- Your consent to release Company from liability based on claims between Users (Section 2) and generally (Section 18).
- Your agreement to indemnify Company from claims due to your use or inability to use the SpareMommy.com Platform or content submitted from your account to the SpareMommy.com Platform (Section 19).
- Your consent to submit any claims against Company to binding arbitration on an individual basis only (Section 20).
1. SpareMommy.com Platform Connects Spare Mommies and Clients
The SpareMommy.com Platform is a web-based communications platform which enables the connection between Clients and Spare Mommies. “Clients” are individuals and/or businesses seeking to obtain work services (“Works”) from Spare Mommies and are therefore clients of Spare Mommies, and “Spare Mommies” are individuals and/or businesses seeking to perform Works for Clients. Clients and Spare Mommies together are hereinafter referred to as “Users.” If you agree on the terms of a Work with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
SPARE MOMMIES ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF COMPANY. COMPANY DOES NOT PERFORM WORKS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM WORKS. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A SPARE MOMMY’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE WORKS IN ANY MANNER.
The SpareMommy.com Platform only enables connections between Users for the fulfillment of Works. Company is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Works, Spare Mommies, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Works requested and services provided by Users identified through the SpareMommy.com Platform whether in public, private, or offline interactions.
2. User Vetting and User Representation and Warranties
In the Company’s sole discretion, Users may be subject to an extensive vetting process before they can register for and during their use of the SpareMommy.com Platform, including but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. Users hereby give consent to Company to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although Company may perform background checks of Users, as outlined above, Company is not required to do so and cannot confirm that each User is who they claim to be and therefore, Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the SpareMommy.com Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SPAREMOMMY.COM PLATFORM AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SPAREMOMMY.COM PLATFORM.
User Representations and Warranties
Contract between Clients and Spare Mommies
You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a Work with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the SpareMommy.com Platform, and any other contractual terms accepted by both the Spare Mommy and their Client to the extent such terms do not conflict with the terms in this Agreement including this Section 3 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 Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Spare Mommy.
Where approved in advance by the Client, the Spare Mommy is not obligated to personally perform the Services. Before any Work services are performed by any assistants, helpers, subcontractors or other personnel (collectively “Assistants”) engaged by the Spare Mommy, the Spare Mommy shall require any such individuals to become registered Spare Mommies on the SpareMommy.com Platform pursuant to Company policies as described on the SpareMommy.com Platform. A Spare Mommy’s failure to bring an Assistant who is not a registered Spare Mommy could lead to removal from the platform. The Spare Mommy assumes full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable state and federal income tax withholdings as to the Spare Mommy and all persons engaged by the Spare Mommy in the performance of the Work services.
The Client shall pay their Spare Mommy directly for completed Work services through the PSP (as defined below) as indicated on the SpareMommy.com Platform at the rates agreed to by the parties in the Service Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a Work. Both parties 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 between the parties.
4. Billing and Payment
Users of the SpareMommy.com Platform contract for Works directly with other Users. Company will not be a party to any contracts for Works or services. Payment for Work services through the SpareMommy.com Platform is made directly from the Client to the Spare Mommy and not by Company. If a Client fails to pay a Spare Mommy for services provided through the platform, Company may, in its sole discretion, pay the Spare Mommy for such services but Company is not obligated to do so. Notwithstanding the foregoing, Company is not obligated to pay Spare Mommy for Client’s failure to pay for services.
Users of the SpareMommy.com Platform will be required to provide their credit card and/or bank account details to Company and the Payment Service Provider retained by Company (the “PSP”). Clients will be responsible for paying the invoice for each Work (the “Invoice”), which will include (i) the pricing terms of the Work agreed with and provided by a Spare Mommy (“Work Payment”), (ii) any out of pocket expenses agreed with and submitted by a Spare Mommy in connection with the Work, (iii) any tip or gratuity, if applicable, (iv) the service charge Company assesses for the SpareMommy.com Platform, variable based on the Work Payment amount, and (v) the platform fee (sometimes referred to as Trust & Support Fee), which is used to offset Company's cost of providing Users with customer support, providing the Happiness Pledge set forth in Section 13, and other various business objectives, and (vi) cancellation fees, if applicable. Spare Mommies will be responsible for paying (i) registration fees (applicable to Spare Mommy registrants), (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments.
To help prevent fraud and safeguard User information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a very temporary charge is placed on account associated with the User and then refunded within 1-3 business days. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary between $0.01 US to $5000.00 US depending on the estimated value of the work and reimbursements.
When Client receives confirmation through the SpareMommy.com Platform or via email that a Work has been completed, Client automatically authorizes Company to provide Client's payment details to the PSP for processing of Work Payment, out of pocket expenses owed to Spare Mommy, and the service charge and trust and support fees owed to Company for the use of the SpareMommy.com Platform. You may be charged a cancellation fee through the PSP if you book a Work, but cancel it before it is completed, as set forth in the Work pricing terms or if you agree to perform a Work but fail to complete it, as may be set forth in the Work pricing terms.
Company reserves the right, in its sole discretion (but not the obligation), upon request from Client or Spare Mommy or upon notice of any potential fraud, unauthorized charges or other misuse of the SpareMommy.com Platform, to (i) place on hold any Work Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
Work Payment and fees must be paid through the PSP as indicated on the SpareMommy.com Platform. Clients may pay using a Gift Card (see Section 5).
Users of the SpareMommy.com Platform will be liable for any taxes (including VAT, if applicable) required to be paid on the Work services provided under the Agreement (other than taxes on Company’s income).
The SpareMommy.com Platform is only a venue for connecting Users. Because Company is not involved in the actual contact between Users or in the completion of the Work, in the event that you have a dispute with one or more Users, you release Company and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS SPAREMOMMY.COM PLATFORM. Company’s sole liability with respect to disputes between Users is as set forth in the Happiness Pledge described in Section 13
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
6. Public Areas; Acceptable Use
The SpareMommy.com 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 material that are relevant and proper to the applicable forum. For the safety and integrity of the SpareMommy.com Platform, you may not share your personal contact information with other Users.
Without limitation, while using the SpareMommy.com Platform, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Company staff, or use information learned from the SpareMommy.com Platform or during the performance of Works to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of any other User or Company staff outside of the SpareMommy.com Platform.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the SpareMommy.com Platform.
- Use the SpareMommy.com Platform for any purpose, including, but not limited to posting or completing a Work, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
- 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 SpareMommy.com Platform which are not relevant to the Work services offered through the SpareMommy.com Platform.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
- Post the same Work repeatedly (“Spamming”). Spamming is strictly prohibited.
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the SpareMommy.com Platform.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Company, without the prior written consent of Company.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the SpareMommy.com Platform in any manner.
- Hack or interfere with the SpareMommy.com Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the SpareMommy.com Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Company.
- Upload content to the SpareMommy.com 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 under the age of 18 in an abusive, violent or sexual manner.
- Use the SpareMommy.com 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 SpareMommy.com Platform as set forth herein.
- Use the SpareMommy.com Platform to collect usernames and or/email addresses of Users by electronic or other means.
- Use the SpareMommy.com Platform or the Work services in violation of this Agreement.
- Use the SpareMommy.com Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
- Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the platform, including 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 identities.
- Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
7. Termination and Suspension
Company may terminate, limit or suspend your right to use the SpareMommy.com Platform in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.
If Company terminates, limits, or suspends your right to use the SpareMommy.com Platform as a Client for a User Breach, you will not be entitled to any refund of unused balance in your account, and 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. In addition to terminating, limiting, or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing arbitration, criminal, and injunctive redress in accordance with Section 20.
Even after your right to use the SpareMommy.com Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the SpareMommy.com Platform at its sole discretion. Except for refundable fees you have advanced to Company (if any), Company is not liable to you for any modification or discontinuance of all or any portion of the SpareMommy.com Platform. Notwithstanding anything to the contrary in this Section 8, Company has the right to restrict anyone from completing registration as a Spare Mommy if Company believes such person may threaten the safety and integrity of the SpareMommy.com 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 SpareMommy.com Platform. All sections 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.
8. Account, Password, Security, and Mobile Phone Use, Texts and Calls
You must register with Company and create an account to use the SpareMommy.com Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Company for accessing the SpareMommy.com Platform. You are solely and fully responsible for all activities that occur under your password or account. Company has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact Company immediately.
By providing your mobile phone number and using the SpareMommy.com Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the SpareMommy.com Platform, (b) facilitate the carrying out of works through the SpareMommy.com Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Works, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming works and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Company’s mobile application, texting “STOP” in response to any texts, or by emailing us and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
9. Your Information and Likeness
“Your Information” is defined as any information and materials you provide to Company or other Users in connection with your registration for and use of the SpareMommy.com Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to Company that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The SpareMommy.com Platform hosts User Generated Content relating to reviews and ratings of specific Spare Mommies (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake their own research to be satisfied that a specific Spare Mommy is the right person for a Work. You agree that Company is not liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Company do so.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the SpareMommy.com Platform.
Each Spare Mommy who provides to Company any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the SpareMommy.com Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- Use any videotape, film, record or photograph that such Spare Mommy provides to Company or that Company takes of Spare Mommy, and use, reproduce, modify, or creative derivatives of such Spare Mommy picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”), in and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such Spare Mommy in connection with the SpareMommy.com Platform.
- Reproduce in all media any recordings of such Spare Mommy’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the SpareMommy.com Platform.
- Use, and permit to be used, such Spare Mommy’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the SpareMommy.com Platform in any media.
- Use, and permit to be used, such Spare Mommy’s name and identity in connection with the SpareMommy.com Platform.
Each Spare Mommy hereby waives all rights and releases Company from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Spare Mommy’s identity, likeness or voice in connection with the SpareMommy.com Platform.
Each Spare Mommy acknowledges that Company shall not owe any financial or other remuneration for using the recordings provided hereunder by such Spare Mommy, either for initial or subsequent transmission or playback, and further acknowledges that Company is not responsible for any expense or liability incurred as a result of such Spare Mommy’s recordings or participation in any recordings, including any loss of such recording data.
10. Links to Other Websites
The SpareMommy.com Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by Company of those sites or their content. They are provided as an information service, for reference and convenience only. Company does not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the SpareMommy.com Platform to such websites (including without limitation external websites that are framed by the SpareMommy.com Platform as well as any advertisements displayed in connection therewith) does not mean that Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the SpareMommy.com Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the SpareMommy.com Platform; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the SpareMommy.com Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the SpareMommy.com Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the SpareMommy.com Platform. You will have the ability to disable the connection between your account on the SpareMommy.com Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the SpareMommy.com Platform. At your request made via e-mail to privacy@SpareMommy.com.com, Company will deactivate the connection between the SpareMommy.com Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
11. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM WORKS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM WORKS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, control or monitor a Spare Mommy’s work or Works performed in any manner. Company does not set a Spare Mommy’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a particular Work. Company does not provide any supervision to Users.
The SpareMommy.com Platform is not an employment service and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Work services.
12. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the SpareMommy.com Platform is owned by Company, excluding User Generated Content that Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the SpareMommy.com Platform without Company's express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the SpareMommy.com Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
13. Copyright Complaints and Copyright Agent
Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the SpareMommy.com Platform infringe upon your copyright or other intellectual property right, please contact us.
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the SpareMommy.com Platform where the material you claim is infringed is located. Include enough information to allow Company to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
14. Confidential Information
You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
15. Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE SPAREMOMMY.COM PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SPAREMOMMY.COM PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE SPAREMOMMY.COM PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SPAREMOMMY.COM PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SPAREMOMMY.COM PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE SPAREMOMMY.COM PLATFORM WILL BE UNINTERRUPTED OR THAT THE SPAREMOMMY.COM PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SPAREMOMMY.COM PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY WORK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SPAREMOMMY.COM PLATFORM. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SPAREMOMMY.COM PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE SPAREMOMMY.COM SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE WORK AND SELECTING THEIR SPARE MOMMY AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR SPARE MOMMY. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY SPARE MOMMY’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
16. No Liability
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE SPAREMOMMY.COM PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SPAREMOMMY.COM PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION, OTHER THAN PURSUANT TO THE HAPPINESS PLEDGE.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SPAREMOMMY.COM PLATFORM OR THE WORK SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE SPAREMOMMY.COM PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES IN EXCESS OF THE HAPPINESS PLEDGE, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, successors and assigns, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys' fees and costs incurred, in connection with (i) your use or inability to use the SpareMommy.com Platform or Work Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law the rights of any User or third party (iv) any content submitted by you or using your account to the SpareMommy.com Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
18. Dispute Resolution – Arbitration
(a) Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Company (each a “Claim” and collectively “Claims”), you and Company 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 or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Company. Company’s address for such notices is SpareMommy.com, LLC, 425 Second Street, 5th Floor, San Francisco California, 94107 Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Company may initiate arbitration while engaging in the informal negotiations.
(b) Binding Arbitration.
YOU AND COMPANY 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 Section 20, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Company. Claims 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 SpareMommy.com Platform, services, Works, your relationship with Company, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, 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, offers made by Company, breach of any express or implied contract or breach of any express or implied contract or covenant, 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. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED 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 TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief.
You and Company agree that any arbitration will be limited to the Dispute between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Company 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. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against the Company which are addressed separately in Section 20 (d) below. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, 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: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated 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 or the Arbitration Agreement, to the fullest extent allowed by law: (1) you and Company 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., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Company agree that any such Dispute will be resolved in arbitration on an individual basis only (that is, 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; 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 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 Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) 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.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. 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 will 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 shall not be bound by rulings in prior arbitrations involving different Spare Mommies or Clients, but is bound by rulings in prior arbitrations involving the same Spare Mommy or Client to the extent required by applicable 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, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
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. If a Client or Spare Mommy, however, files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD 10,000, Company will pay all such fees unless 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)); (ii) For Claims that (A) are based on an alleged employment relationship between Company and the Spare Mommy; (B) arise out of, or relate to, the Company’s actual or threatened deactivation of a Spare Mommy’s User account; (C) arise out of, or relate to the Company’s actual or threatened termination of a Spare Mommy’s Agreement with the Company; or (D) arise out of, or relate to, monies earned or paid for Work services (as defined above, including the service chargeor Trust and Support Fee), tips, bonuses or monies owed by Clients or Company to a Spare Mommy, other than disputes relating to referral bonuses, other Company sponsored promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Spare Mommy Claims”), 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 (to the extent not paid by Company pursuant to the fee provisions above). However, if you are the party initiating the Spare Mommy Claim, 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 provide Services to Clients, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection 20(e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. (iii) Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, 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 Dispute(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.). (iv) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Unless you and Company agree otherwise, any arbitration hearings between Company and a Spare Mommy will take place in the county of your billing address, and any arbitration hearings between Company and a Client will take place in the county in which you received Work services. 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 are not required to be arbitrated under the Arbitration Agreement:
- Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
- Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
- A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section __ is deemed unenforceable by a court of competent jurisdiction;
- Claims that may not be subject to arbitration as a matter of law.
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 Provision and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in Section 20(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 30 days of the date you first registered for the SpareMommy.com Platform or 30 days from the date this Agreement was last updated. To opt out, you must send a written notification to Company at SpareMommy.com, LLC, 425 Second Street, 5th Floor, San Francisco California, 94107 Attention: Legal, 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.
19. Governing Law
Except as provided in Section 20 or expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles.
20. No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
21. General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
22. Changes to this Agreement and the SpareMommy.com Platform
Information Received by SpareMommy.com
Personal Information. SpareMommy.com collects Personal Information (i.e. data that allows someone to identify or contact you such as your name, address, geographic location of your computer or mobile device, telephone number, email address and bank account and other Financial Information, information about you child or children in regards to their needs) only if you voluntarily choose to share such information with SpareMommy.com. However, in order for you to take advantage of particular opportunities provided through the SpareMommy.com Platform, we may require that you furnish Personal Information. When you register your account, sign up for newsletters, complete forms for optional programs, surveys, contests and other entries, and through communications transmitted through SpareMommy.com, applications and your use of the SpareMommy.com mobile application, we collect information including your name, address, phone number and email address. You also may choose to send SpareMommy.com personally identifying information in an email message containing information or inquiries about the SpareMommy.com Platform.
Cookies and Other Technologies. When you visit websites on the Internet, your browser may automatically transmit information to the websites you visit throughout every visit. Like many websites, we may use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We may utilize persistent cookies that only SpareMommy.com can read and use to save your login information for future logins to the SpareMommy.com Platform, to assist in processing items in your shopping basket, to hold session information, and to track user preferences. We may utilize session ID cookies to enable certain features of the SpareMommy.com Platform, to better understand how you interact with the Site and to monitor aggregate usage by our users and web traffic routing on the SpareMommy.com Platform, to track the number of entries in SpareMommy.com promotions, sweepstakes and contests and to identify visited areas of the SpareMommy.com Platform. Unlike persistent cookies, session cookies are deleted from your computer when you log off from the SpareMommy.com Platform and then close your browser. Third party advertisers on the Site may also place or read cookies on your browser and we may use Flash cookies (or local shared objects) to store your preferences or display content based upon what you view on the Site to personalize your visit. You can instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you do not accept cookies, however, you will not be able to use all portions or all functionalities of the SpareMommy.com Platform.
We and our service providers may also use "pixel tags," "web beacons," "clear GIFs," or similar means in connection with the SpareMommy.com Platform and HTML-formatted email messages to, among other things, track the actions of Users and email recipients, to determine the success of marketing campaigns and to compile aggregate statistics about Site usage and response rates. We may also engage one or more third party service providers to serve online advertisements on our behalf. They may use a “pixel tag” to collect information about your visits to the Site and to other websites, and they may use that information to target advertisements for goods and services. We will not share this information with third parties in a manner that personally identifies you except as provided herein.
Device Information. When you visit and interact with the SpareMommy.com Platform, SpareMommy.com may collect certain information automatically, including, but not limited to, the type of computer or mobile device you use, your mobile devices unique device ID, the IP address of your computer or mobile device, your operating system, the type of Internet browsers you use, and information about the way you use the SpareMommy.com Platform (“Device Information”). We may use Device Information to monitor the regions from which Users navigate the Site and for security and fraud prevention purposes. Device Information may be personally identifying in some circumstances. Tools are available with the goal of anonymizing certain Device Information (like the TOR network), which are forbidden on the SpareMommy.com Platform. While we respect your right to hide this information, we believe that doing so is in conflict with the spirit of our platform, and having an open and honest marketplace. When using such tools, you will not be able to use all portions or all functionalities of the SpareMommy.com Platform.
Identity Verification. We may collect Personal Information, such as your date of birth, or taxpayer identification number, and address, to validate your identity or as may be required by law, such as to complete tax filings (“Identity Information”).
Financial Information. To help Spare Mommies setup a payment account and help Clients make payments to Spare Mommies and pay the Fees, we may collect financial information, including name, address, credit card number, bank routing numbers, tax information, and any other payment information (“Financial Information”).
Location Information. When you visit the SpareMommy.com Platform via a mobile application, we may use GPS technology (or other similar technology) to determine your current location in order to determine the city you are located within and display a location map to offer a better service for our Users. We will not share your current location with other users. If you do not want us to use your location for the purposes set forth above, you should turn off the location services for the mobile application located in your account settings or in your mobile phone settings and/or within the mobile application.
Third Party Information. If you registered through a co-branded version of our SpareMommy.com Platform through one our Partners (as defined below), they may provide us with basic information such as your name, address and purchase history related to your Task needs. We may receive additional information about you, such as demographic data, payment information, or fraud detection information, from third party Agents (as defined below) and combine it with other information that we have about you. Finally, SpareMommy.com works with third party agents to perform identity checks and criminal background checks on Spare Mommies, and we receive information from them such as publicly available information about their criminal history.
Public Areas. You may have the opportunity to create a profile, which consists of information about you, and may include Personal Information, photographs, work history, skills, hourly pay rates, feedback/rating information and other information, including your username (“Profile”). The information in your Profile may be visible to all Users and the general public subject to the privacy choices you make within your Profile. If you choose to post an opening via the SpareMommy.com Platform, the contents of such listing may be publicly viewable.
SpareMommy.com's Use of Personal Information
SpareMommy.com uses Personal Information (including Identity Information and Financial Information) and non-Personal Information for the following general purposes:
- To operate and make available the SpareMommy.com Platform,
- to connect Spare Mommies and Clients and facilitate transactions and payments,
- for billing, identification and authentication, and fraud prevention,
- to analyze Site usage and improve our products and the SpareMommy.com Platform,
- to contact you and deliver administrative notices, marketing notifications and offers and communications relevant to your use of our products and the SpareMommy.com Platform via email, SMS, push notifications, or otherwise,
- to provide you with customer support,
- for internal market research, troubleshooting problems, and detecting and protecting against error, fraud or other criminal activity,
- to enforce our Terms of Service, and
- as otherwise set forth in the Policy.
Analytics and Market Research. SpareMommy.com may analyze Personal Information and web navigational data based on your interests and may use the analysis from this information in a way that doesn’t reveal a User’s Personal Information (“Market Research”) in order to market the SpareMommy.com Platform, improve the likelihood of a sale to a group of Users, and increase the likelihood that a group's experience with the SpareMommy.com Platform is relevant to its interests as a whole. SpareMommy.com uses data at the individual level to sell products and services to Users who express an interest in these products and services, through a poll for example, or to Users who can be presumed to have an interest based on results from our Market Research.
Cell Phone Numbers. SpareMommy.com may use your cell phone number to call or text you in order to provide you notifications about tasks, for marketing purposes and to administer the SpareMommy.com Platform. You may be liable for standard SMS and per-minute charges by your mobile carrier. SpareMommy.com may also message you via “Push” messaging, which you can opt-out of on your mobile device. Data rates may apply.
You can opt out of receiving certain promotional communications from SpareMommy.com sent via text message at any time by following the instructions provided in text messages from SpareMommy.com to text the word, "STOP". Please note that your opt-out is limited to the phone number used and will not affect subsequent subscriptions. If you opt-out of only certain communications, other subscription communications may continue. Even if you opt-out of receiving promotional communications, SpareMommy.com may, subject to applicable law, continue to send you non-promotional communications, such as those about your account, transactions, servicing, or SpareMommy.com’s ongoing business relations.
Financial Information. We use Financial Information solely as authorized by you in accordance with the SpareMommy.com Platform. To keep your financial data secure, we do not store full credit card information on our servers. We have contracted with a third party to process your payment card information.
With Whom Does SpareMommy.com Share Information?
Third Party Agents. To operate the SpareMommy.com Platform, including processing your transactions, we may share your Personal Information with Our agents, representatives, contractors and service providers (“Agents”) so they can provide us with support services as follows:
- Email origination,
- Identity/background check requirements,
- Fraud detection,
- Receipt or support services,
- Customer relationship management services,
- Financial transaction fulfillment, and
- To otherwise help us provide the SpareMommy.com Platform, including all of the things described in the preceding section.
Other Users. As Authorized by your use of the SpareMommy.com Platform, SpareMommy.com facilitates contact between Users and reserves the right to share a User’s contact information with another User or their legal or other representative in order to facilitate the resolution of a dispute related to or arising from an interaction between two or more Users of the platform (e.g. phone number, or email and postal address).
Anonymous or Aggregated Data. SpareMommy.com collects, stores and shares certain data about the use of the SpareMommy.com Platform on an aggregate and/or anonymous basis. SpareMommy.com does not link this information to anything personally identifiable to you if shared with third parties.
Legal Obligations SpareMommy.com may disclose Personal Information or User Generated Content, including location data or communication data, to a third party if required to do so by law or pursuant to a warrant or subpoena. SpareMommy.com reserves the right to disclose Personal Information from both private and public areas of the Site in the absence of a warrant or subpoena if we are given reason to believe, in our sole discretion, that someone is causing injury to or interference with the rights of Users, the general public, or SpareMommy.com, to comply with a judicial proceeding, court order or legal process. It is our policy to provide notice to Users before producing their information in response to law enforcement requests unless (i) we are prohibited by law or court order from doing so, (ii) we have reason to believe the User’s account has been compromised such that the notice would go to the wrong person, or notice would otherwise be counterproductive or would create a risk to safety, or (iii) it is an emergency request and prior notice would be impractical (in which case we may provide notice after the fact). Law enforcement officials who do not want their requests disclosed should provide an appropriate court order or process establishing that notice is prohibited, or provide sufficient detail for SpareMommy.com to determine whether a request falls into one of the exceptions above.
Third Party Sites
As part of the functionality of the Site and the SpareMommy.com Platform, you may link your SpareMommy.com account with online accounts you may have with third party sites, such as Facebook. If you connect your account with one of these services, you may be giving such third party services access to your Personal Information or Contact Data.
You may opt-out of receiving communications from us and our partners, remove your information from our database, and choose to not receive future communications unrelated to the SpareMommy.com Platform by cancelling your account; if you wish to do so, please contact us.
During registration you choose whether to receive marketing correspondence from either SpareMommy.com or its partners and whether you want to participate in a variety of SpareMommy.com programs. This information remains on your Profile where you can, at any point, easily edit it to indicate that you have changed your mind. After logging on, click on your profile on the top right of any page, then select “Notifications.” You may then click on "email alerts," and make your selections. If you purchase anything through SpareMommy.com, we may occasionally contact you with information about special events, sales, activities, promotions, contests, submission opportunities and programs. You always have the option to ask SpareMommy.com not to contact you with this information again.
SpareMommy.com's Information Retention Policy
To preserve the integrity of our databases, we may retain information submitted by Users for an indefinite length of time as necessary to comply with our legal obligations, resolve disputes and enforce our agreements. If required by law, we will delete Personal Information by erasing it from our database. We will also respond to User requests to delete or correct account or Personal Information, which you can do by contacting SpareMommy.com at help.tr.co, or by selecting the “Notifications” option under your account icon in the top right corner of your home page or on your device.
User Generated Content
For each User seeking to provide task services via the SpareMommy.com Platform (each, a “Spare Mommy”) who has provided SpareMommy.com with any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, you consent to our use of these materials as User Generated Content in accordance with Section 14 of the Terms of Service, available at http://www.SpareMommy.com.com/terms.
SpareMommy.com’s Security of Collected Information
Your SpareMommy.com account is password-protected so that only you and authorized SpareMommy.com staff have access to your account information. In order to maintain this protection, do not give your password to anyone. Also, if you share a computer, you should sign out of your SpareMommy.com account and close the browser window before someone else logs on. This will help protect your information entered on public terminals from disclosure to third parties.
SpareMommy.com expressly disclaims any liability that may arise should any other individuals obtain the information you submit to the SpareMommy.com Platform.
How Can Users Access and Edit Their Information?
SpareMommy.com believes strongly in giving you the ability to access and edit your Personal Information. To update your Personal Information, click My Account at the top of any page. There you can view, update and correct your account information. You may edit your account information at any time -- all you need is your username and password.
So that we can protect the integrity of sensitive data, there are certain pieces of information, such as your age, that you cannot alter yourself. For example, since children under 18 are not allowed to register as Users, we need to take reasonable measures to preserve the accuracy of our Users' ages. You have a right to access your personal information. Please contact us.
Our databases automatically update any Personal Information you edit in your profile, or that you request we edit. Information transmitted through boards, chats, polls or through any other means remains in our databases and becomes the property of SpareMommy.com upon submission.
Notification of Changes
Your California Privacy Rights
California’s “Shine the Light” law permits customers in California to request certain details about how certain types of their information are shared with third parties and, in some cases, affiliates, for those third parties’ and affiliates’ own direct marketing purposes. Under the law, a business should either provide California customers certain information upon request or permit California customers to opt in to, or opt out of, this type of sharing.
SpareMommy.com may share personal information as defined by California’s “Shine the Light” law with third parties or affiliates for such third parties’ or affiliates’ own direct marketing purposes. California residents may obtain information about our compliance with this law by sending us an email or letter to the address specified in the “Contacting Us” section below. Requests must include “California Privacy Rights Request” in the first line of the description and include your name, street address, city, state, and ZIP code. Please note that SpareMommy.com is not required to respond to requests made by means other than through the provided email address or mail address.
How Can I Reach SpareMommy.com Staff?
SpareMommy.com's staff will respond to all requests sent through mail or email from Users and parents interested in knowing more about what personal information is stored on the SpareMommy.com database, or if they want their personal information nullified, or have additional questions regarding privacy.
If you have any questions about this privacy statement, the practices of the Site, or your dealings with the SpareMommy.com Platform, simply contact us at www.SpareMommy.com