User Agreement

Effective Date: April 2, 2018.

This Terms of Use Agreement (the “Agreement”), effective as of April 2, 2018 states the terms and conditions that govern the contractual agreement between Mirach LLC, (the “Company”) and you (the “User”) who agrees to be bound by this Agreement in regard to the User’s access to www.kounsel.io and the affiliated mobile platform (collectively, the “Platform”), which is owned and operated by the Company.

Subject to the conditions set forth herein, the Company may, in its sole discretion, amend this Agreement at any time by posting a revised version on the Platform and will provide reasonable advance notice of any amendment that includes a material change. If such material change includes an increase to fees charged by the Company, the Company will provide at least thirty (30) days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in fees or any temporary or promotional fee change. Any revisions to the Agreement will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).

The User’s continued use of the Platform or the Services after the Effective Date of a revised version of this Agreement constitutes the User’s acceptance of and agreement to be bound by the Agreement as revised. In the event of a conflict between this Agreement and the other documentation on the Platform, this Agreement will control unless the other Agreement explicitly states that it controls.

The User hereby acknowledges and agrees that the Service and any related content is exclusive property of the Company and the Company may offer access to the Service in any way it sees fit. By logging onto the Platform and/or using the Service, the User agrees to these Terms of Use, the Confidentiality Policy, the Escrow Agreement, the Fee and ACH Authorization Agreement, and the Privacy Policy located elsewhere on the Platform.

THE USER HEREBY UNDERSTANDS THAT BY USING THE PLATFORM OR SERVICES AFTER THE EFFECTIVE DATE, THE USER AGREES TO BE BOUND BY THE AGREEMENT, INCLUDING THE MANDATORY BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 22 OF THIS AGREEMENT. IF THE USER DOES NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, THE USER MUST NOT ACCESS OR USE THE PLATFORM OR THE SERVICES AFTER THE EFFECTIVE DATE. IF THE USER AGREES TO THE AGREEMENT ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY, THE USER REPRESENTS AND WARRANTS THAT THE USER HAS THE AUTHORITY TO BIND THAT ENTITY TO THE AGREEMENT. IN THAT EVENT, THE “USER” WILL REFER AND APPLY TO THAT ENTITY.

DIGITAL SIGNATURE. By registering for a user account on the Platform (see below), or by clicking to accept the this Agreement when prompted on the Platform, the User is deemed to have executed this Agreement electronically, effective on the date the User registers his or her account or clicks to accept this Agreement, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). The User’s account registration constitutes an acknowledgement that the User is able to electronically receive, download, and print this Agreement, any other referenced documentation, and any amendments.
CONSENT TO USE ELECTRONIC RECORDS.
1. Consent Granted. In connection with the Agreement, the User may be entitled to receive certain records from the Company, such as contracts, notices, and communications, in writing. To facilitate the User’s use of the Platform and the Services, the User gives the Company permission to provide these records to the User electronically instead of in paper form. However, the Company reserves the right, in its sole discretion, to communicate with the User via the U.S. Postal Service and other third-party mail services using the address under which the User Account is registered. The User’s consent to receive records and notices electronically will remain in effect until the User withdraws it. The User may withdraw its consent to receive further records and notices electronically at any time by contacting legal@mirach.co. If the User withdraws its consent to receive such records and notices electronically, the Company will revoke its access to the Platform and the Services, and the User will no longer be permitted to use the Platform or the Services. Any withdrawal of the User’s consent to receive records and notices electronically will be effective only after the Company has had a reasonable period of time to process the User’s request for withdrawal. Please note that the User’s withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by the Company to the User before the withdrawal of the User’s consent becomes effective.
2. Keeping Information Current. The User must keep any information required to provide pursuant to this Section or the Agreement generally, up to date, current, and Accurate.
3. Requirements. To access and retain the records and notices the Company provide to the User electronically, the User will need: (i) a valid email address; (ii) a computer system that operates on a platform like Windows or Mac; (iii) a connection to the Internet; (iv) current versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Platform (Users utilizing other browsers may experience compatibility difficulties); (v) a current version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader; (vi) a computer or device and an operating system capable of supporting all of the above; and (vii) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. The Company may change these requirements from time to time and will update this Agreement accordingly. The User should retain a copy of all of the records and notices the Company send to the User electronically.
ACCESS AND USE OF THE SERVICES.
1. User Account. The User may register to the Platform with an account in order to make use of certain functions and/or the Service (the “User Account”). By registering for a User Account on the Platform, or by clicking to accept the Agreement when prompted on the Platform, the User is deemed to have executed this Agreement and any other document listed on such prompt electronically, effective on the date the User registers its User Account or clicks to accept the Agreement. The User’s Account registration constitutes an acknowledgement that the User is able to electronically receive, download, and print this Agreement, the other Agreement, and any amendments. The Company reserves the right to terminate or suspend any User’s User Account and/or access to the Platform and the Service if the Company determines (in its sole discretion) that any such User has violated this Agreement.
2. Profile. Upon registering for a User Account, the User may complete a User profile (a “Profile”), which the User consents to be shown to other Users and, unless the User change the User’s privacy settings, the public. If the User is a Counselor (i.e., a User that is providing the service), the User represents and warrants that the User uses its Profile to market its business to others for the purpose of entering into independent contractor relationships with Hosts (i.e., a User that is requesting and paying for the service). The User agrees to provide true, accurate, and complete information on its Profile and all registration and other forms the User’s access on the Platform or provide to the Company and to update the User’s information to maintain its truthfulness, accuracy, and completeness. The User agrees not to provide and to correct any information about the User’s location, its business, its skills, or the services its business provides that is or becomes false or misleading. The User agrees not to register for more than one Counselor Profile and one Host Account without express written permission from the Company. The User agrees not to ask or allow another person to create a User Account on its behalf, for its use, or for its benefit.
3. Identity Verification. When the User registers for an Account and from time to time thereafter, the User’s Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm the User’s identity and the User’s ability to represent its business on the Platform, if it is a separate legal entity. The User authorizes the Company, directly or through third parties, to make any inquiries necessary to validate its identity and confirm its ownership of its email address or financial accounts, subject to applicable law. When requested, the User must provide the Company with information about the User and the User’s business.
4. User Names and Passwords. The User is responsible for maintaining the confidentiality of the username and password that the User designates during the registration process, and the User is fully responsible for all activities that occur under the User Account. The User agrees to: (i) immediately notify the Company of any unauthorized use of the User Account or any other breach of security, and (ii) ensure that the User exits from the User Account at the end of each session. The Company will not be liable for any loss or damage arising from the User’s failure to comply with this provision. The User should use particular caution when accessing the User Account from a public or shared computer to ensure that others are not able to view or record the User Account’s username and password and/or other personal information.
5. Marketplace Feedback. The User acknowledges and agrees that feedback benefits the marketplace, all Users, and the efficiency of the Platform and the User specifically request that the Company post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Platform. The User acknowledges and agrees that feedback results for the User, including its Job Success Score (“JSS”), if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. The User further acknowledges and agrees that the Company will make feedback results available to other marketplace Users, including composite or compiled feedback. The Company provides this feedback system as a means through which Users can share their opinions publicly and the Company does not monitor or censor these opinions. The User acknowledges and agrees that posted composite or compiled feedback and any JSS relate only to the business advertised in the User Profile and not to any individual person. The User agrees not to use the JSS to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User. The Company does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that the Company do so. The User may be held legally responsible for damages suffered by other Users or third parties as a result of the User’s remarks if such remarks are legally actionable or defamatory. The Company is not legally responsible for any feedback or comments posted or made available on the Platform by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, the Company reserves the right (but is under no obligation) to remove posted feedback or information that, in The Company’s sole judgment, violates this Agreement or negatively affects the Company’s marketplace. The User acknowledges and agrees that the User will notify the Company of any error or inaccurate statement in the User’s feedback results, including the JSS, and that if the User does not do so, the Company may rely on the accuracy of such information.
6. Text Messaging. The Company may use SMS text message for various account-related purposes, including (but not limited to) phone number verification and one-time password confirmation. By requesting this service the User agrees to receive SMS text messages from the Company for such services.
7. Phone Consultations. Should the User provide his or her phone number to the Platform for the purpose of performing services, such User agrees to receive telephone calls from Users for that purpose.
PURPOSE OF THE SITE AND THE SERVICES. Through the Platform, the Company offers its Users a venue through which Users may connect to certain other parties for certain advisory services (the “Service”).
1. License. Subject to the User’s compliance with these Terms, the Company grants the User a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Platform on the User’s personal device solely in connection with the User’s use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for the User’s personal, noncommercial use. Any rights not expressly granted herein are reserved by the Company and its licensors.
2. Eligibility/General Restrictions. The User’s limited license to access and make personal use of the Platform is contingent on the following: (i) the User must be at least 18 years of age; (ii) the User must provide information (e.g., address, email address, phone number, etc.) that is truthful to the best of the User’s knowledge and in the event any such information changes, the User shall notify the Company of any such change within a reasonable amount of time; (iii) the User shall not use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of the Platform. The User will not take any action that imposes an unreasonable or disproportionately large load on the Platform’s infrastructure. The User agrees not to use any robot, spider, other automatic device, or manual process to monitor or copy any content from the Platform without the prior express consent from an authorized Company representative, unless such use is by a search engine employed to direct Internet users to the Platform; and (iv) the User shall not use any of the Services for any unlawful or harmful purposes. Any unauthorized use automatically terminates the permission or license granted by the Company.
PAYMENT.
1. 1. Service Fee. The fees to use the Platform and the Services are paid mostly by the Counselors. When a Host pays a Counselor, or when funds related to an engagement are otherwise released to a Counselor as required by the applicable Escrow Instructions, The Company Escrow will credit the Counselor Escrow Account for the full amount paid or released, and then subtract and disburse to the Company a service fee in the amount specified in the Company’s fee schedule (the “Service Fee”). Counselor agrees to pay the Company the Service Fee for using the Platform’s communication, invoicing, dispute resolution and payment services, including Payment Protection.
  2. Ratings and Service Fees. The User acknowledges and agrees that the ratings received pursuant to performing services through the Platform will have an effect on the amount of Service Fees the Company receives, pursuant to the relevant fee schedule.
  3. No Fee for Introducing or For Finding Engagements. The Company does not introduce Hosts to Counselors and does not help Counselors secure engagements. The Company merely makes the Services available to enable Counselors to do so themselves. Therefore, the Company does not charge a fee when a Counselor finds a suitable Host or finds an engagement. However, a Host and a Counselor are obligated to use the Platform to pay and receive payment for their work together if they identified each other through the Platform, as detailed in the Company’s Non-Circumvention Section below. In addition, the Company does not charge any fee or dues for posting public feedback and composite or compiled feedback, including JSS.
  4. Disbursements to Counselors. Under the relevant Escrow Instructions, Company Escrow disburses funds that are payable to a Counselor for the engagement (less any applicable Service Fees) to Counselors within 90 days after the Counselor Fees are due and payable from Host (or for amounts less than $100, within 180 days after the Counselor Fees are due and payable from Host). Counselor agrees that it will not receive interest or other earnings on the funds held by Company Escrow prior to disbursement to Counselor. Funds become payable to Counselors following the expiration of the dispute period and the security period. The security period begins after the Host or Counselor completes a counseling session. The Company may, in its sole discretion, deviate from the typical billing cycle and charge the Host for any and all Transaction Logs at any time. To the extent the Escrow Instructions are inconsistent with this paragraph, the Escrow Instructions govern.
Notwithstanding any other provision of this Agreement or the Escrow Instructions, and except as prohibited by applicable law, if the Company determine in the Company’s sole discretion that the User has violated the conditions and restrictions of the Platform or this Agreement, the Company may hold the disbursement of the Counselor Fees. Additionally, the Company Escrow may also hold the disbursement of the Counselor Fees if: (i) the Company requires additional information, such as Counselor’s tax information, government-issued identification, address, or date of birth; (ii) the Company has reason to believe the Counselor Fees may be subject to dispute or chargeback; (iii) the Company suspects fraud; (iv) the Company believes there are reasonable grounds for insecurity with respect to the performance of obligations under a Service Contract, this Agreement, or other agreements with the Company; (v) the Company deems it necessary in connection with any investigation; or (vi) required by applicable law.

In cases of fraud, abuse, or violation of this Agreement, the Company reserves the right to revoke any payments and hold and reclaim all Counselor Fees due to Counselor (not just the Counselor Fees from the Service Contract(s) under investigation) unless prohibited by applicable law. In addition, the Company reserves the right to seek reimbursement from the User, and the User will reimburse the Company, if the Company suspect fraud or criminal activity associated with the User’s payment, withdrawal, or Engagement; if the Company discovers erroneous or duplicate transactions; or if the Company has supplied its services in accordance with this Agreement yet the Company receives any chargeback from the Payment Method used by the User, or used by the Host if the User is a Counselor. The User agrees that the Company have the right to obtain such reimbursement to (and the Company will have the right to) charge an applicable Escrow Account, and any other accounts the User holds with the Company, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging the User’s Payment Method, or obtaining reimbursement from the User by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of the applicable Escrow Account and revocation of the User’s access to the Platform.
1. Non-Payment. If a Host fails to pay the Counselor Fees or any other amounts due under this Agreement, whether by canceling Host credit or debit card, initiating an improper chargeback, or any other means, the Company may suspend or close such User’s Account and revoke such User’s access to the Platform, including such User’s authority to use the Platform to process any additional payments, enter into Service Contracts, or obtain any additional Counselor Services. Without limiting other available remedies, the User must pay the Company upon demand for amounts owed under this Agreement, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, the Company may set off amounts due against other amounts received from or held by the Company for Host, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
2. No Return of Funds. The User acknowledges and agrees that the Company will charge the Host’s designated Payment Method for the Counselor Fees after successful completion of a counseling session. Therefore, and in consideration of the Services provided by the Company, the User agrees that once the Company charges the Host’s designated Payment Method for the Counselor Fees as provided in this Agreement, the charge is non-refundable, except as otherwise required by applicable law. The User also acknowledges and agrees that this Agreement provides a dispute resolution process as a way for the User resolve disputes. To the extent permitted by applicable law, the User therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Counselor Fees or other Fees charged pursuant to this Agreement for any reason. A chargeback in breach of the foregoing obligation is a material breach of this Agreement. If a User initiates a chargeback in violation of this Agreement, such User agrees that the Company may dispute or appeal the chargeback and institute collection action against such User.
3. Formal Invoices and Taxes. The Company will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to the Counselor Fees. Counselor will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Counselor Fees and for issuing any invoices so required. Counselor will also be solely responsible for determining whether: (a) Counselor or the Company is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Counselor Fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or the Company, as appropriate; and (b) the Company is required by applicable law to withhold any amount of the Counselor Fees and for notifying the Company of any such requirement and indemnifying the Company (either by the company, at the Company’s sole discretion, offsetting the relevant amount against a future payment of Counselor Fees to Counselor or Counselor reimbursing the Company for the applicable amount) for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Company, Counselor agrees to promptly cooperate with Company and provide copies of Counselor’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Counselor is engaging in an independent business as represented to Company.
4. Payment Method. In order to use certain Platform Services, Host must provide account information for at least one valid Payment Method. Host hereby authorizes the Company to run credit card authorizations on all credit cards provided by Host, to store credit card and banking or other financial details as Host’s method of payment for Services, and to charge Host’s credit card (or any other Payment Method). Credit cards and PayPal accounts and, if applicable, bank accounts in most countries will be charged by the Company. By providing Payment Method information through the Platform, Host represents, warrants, and covenants that: (a) Host is legally authorized to provide such information; (b) Host is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Host’s use of such Payment Method(s) or applicable law. When Host authorizes a payment using a Payment Method via the Platform, Host represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other agreements cannot be collected from Host’s Payment Method(s), Host is solely responsible for paying such amounts by other means.
5. US Dollars and Foreign Currency Conversion. The Platform and the Platform Services operate in U.S. Dollars. If Host’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the Platform may display foreign currency conversion rates that the Company currently makes available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which the Company obtains foreign currency will usually be different than the foreign currency conversion rates offered on the Platform. Host, at its sole discretion and risk, may authorize the charge of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Platform. A list of supported foreign currencies is available on the Platform. If foreign currency conversion is required to make a payment in U.S. Dollars and the Company does not support the foreign currency or Host does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Platform, the Company will charge Host’s Payment Method in U.S. Dollars and Host’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by Host’s Payment Method provider. Host’s Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency conversion is involved. Host’s authorization of a payment using a foreign currency conversion rate displayed on the Platform is at Host’s sole risk. The Company are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. The Company are not responsible for currency fluctuations that occur when receiving or sending payments via wire transfer, check or automated clearinghouse to and from the Escrow Account.
6. Limited Payment Protection. The Company only provides Payment Protection to Counselors if the following criteria are met: (a) Host has a verified Payment Method; (b) the time represented is captured online using the Company’s software; (c) the Counselor Services performed and recorded in the Transaction Log pertain directly to the Service Contract; and (d) each Transaction Log is annotated with descriptions of the Counselor Services performed, demonstrating Service Contract compliance. The company determines whether the foregoing criteria have been met in the Company’s sole discretion. Without limiting the foregoing, Payment Protection does not apply to: (w) Counselors, Counselor Services, or Service Contracts violating this Agreement or the other agreements; (x) Counselors that are aware of or complicit in another User’s violation of this Agreement or the other agreements; or (y) Counselors that are suspected (in the company’s sole discretion) of actual fraudulent activities or abuse of this Payment Protection. Counselor hereby irrevocably assigns to the Company the right to recover from the Host any amounts that the Company provide to the Counselor in connection with the Payment Protection membership benefit.
ESCROW. See Escrow Terms of Use.
PROMOTIONS, MANDATORY PROMOTIONS, OPT-IN PROMOTIONS, AND USER OFFERS.
1. Mandatory Promotions. The Counselor agrees and acknowledges that the following promotions shall apply to the services provided: (i) In a video counseling session, if any Host or Counselor disconnects within first 15 seconds there will be no charge; and (ii) the Host will not incur any charges for the first 60 seconds with a Counselor.
2. Opt-In Promotions. The Company will offer certain promotions into which the Users may opt in.
3. User Offers. Counselors may offer discount rates to Hosts.
PRIVILEGE POINTS. Upon successful completion of a counseling service, Counselor and Host will be able to review each other using ratings and comments. The Company maintains separate Host and Counselor ratings. Such ratings are referred to as “Privilege Points.” The Users agree and acknowledge that they will have separate ratings related to their performance as both Host and Counselor separate from one another should they register as both on the Platform. The Company has the right to ban any User or remove access from its Platform based on such ratings. The Company may restrict access to different parts of the Platform based on such ratings. E.g., Counselors/Hosts will not be able to accept/start a direct counselling session if Privilege Point ratings fall below 2.5.
FEES AND ACH AUTHORIZATION. See “Fees and ACH Authorization Agreement.”
APPOINTMENTS OR PRE-BOOKED SESSIONS. A Host can make an appointment with his or her choice of Counselor, with such Counselor’s assent to the date and time of the appointment, with 24 hours advance notice. All Service Fees as described herein shall apply to such appointment. So long as the appointment is cancelled within the stated cancellation period, either party may cancel the appointment without incurring additional fees.
SERVICES.
1. Outsource or Subcontract. Counselors may not outsource or subcontract any services agreed upon between Counselors and Hosts.
2. Limited Employee Assistance. Counselors may be assisted with employees of the Counselor’s company so long as (i) the Counselor notifies the Host that such individuals will be assisting with the services; and (ii) the Counselor is solely responsible for the performance of his or her employees.
3. Host Payments and Billing. The Host becomes obligated for Counselor Fees on a weekly basis.
4. Dispute Resolution. With respect to disputes arising between Hosts and Counselors, the User agrees to abide by the dispute resolution provisions set forth herein that apply to the User’s particular Service Contract.
5. Termination of a Service Contract. either Host or Counselor has the right to terminate the Service Contract after providing any required notice, or immediately on the end date specified in the Service Contract terms and/or upon completion of the Counselor Services, in the event of a material breach, or with the consent of the other party. Except as required by law, Host remains obligated to pay the Counselor Fees for any Counselor Services provided prior to termination.
6. Intellectual Property Rights.The following capitalized terms have the following meanings for the purposes of this Section:
  “Background Technology” means all Inventions developed by Counselor other than in the course of providing Counselor Services to Host under the Service Contract and all Inventions that Counselor incorporates into Work Product.
  
  “Host Materials” means requests, intellectual property, and any other information or materials that Host provides to Counselor for Counselor to perform Counselor Services.
  
  “Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.
  
  Background Technology. Counselor will disclose in the Engagement Terms any Background Technology which Counselor proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. If Counselor discloses no Background Technology, Counselor warrants that it will not incorporate any Background Technology into Work Product provided pursuant thereto. Counselor will separately provide, with each delivery of Work Product to Host, a third-party bill of materials that identifies all Background Technology and other third-party materials that have been incorporated into the Work Product and provides, for each item of Background Technology identified, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Counselor, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product. Notwithstanding the foregoing, unless otherwise agreed in the Engagement Terms, Counselor agrees that it will not incorporate into Work Product or otherwise deliver to Host any software code for which the use or distribution of the code will create (or purport to create) obligations for Host to grant any rights or immunities under Host intellectual property to a third-party, including without limitation any obligation that the Work Product or Host software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.
  
  License to Background Technology. Upon Counselor’s receipt of full payment from Host for delivery of Work Product, Counselor hereby automatically grants to Host a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Background Technology incorporated or used in Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
  
  Host Materials. Host grants Counselor a limited, non-exclusive, revocable (at any time, at Host’s sole discretion) right to use the Host Materials as necessary solely for the performance of the Counselor Services under the applicable Service Contract. Host reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Host Materials. Upon completion or termination of the Service Contract, or upon Host’s written request, Counselor will immediately return all Host Materials to Host and further agrees to destroy all copies of Host Materials and Deliverables (except for Background Technology as permitted by the Service Contract) contained in or on Counselor’s premises, systems, or any other equipment or location otherwise under Counselor’s control. Within ten days of such request from Host, Counselor agrees to provide written certification to Host that Counselor has returned or destroyed all Host Materials and Work Product as provided in this subsection.
  
  Ownership of Intellectual Property Inherent In Work Product. Upon Counselor’s receipt of full payment from Host, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Host, and Host will be deemed to be the author thereof. If Counselor has any Intellectual Property Rights to the Work Product that are not owned by Host upon Counselor’s receipt of payment from Host, Counselor hereby automatically irrevocably assigns to Host all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth above, Counselor retains no rights to use, and will not challenge the validity of Host’s ownership in, such Intellectual Property Rights. Counselor hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product. If payment is made only for partial delivery of Work Product, the assignment described herein applies only to the portion of Work Product delivered.
  
  License of Waiver of Other Rights. If Counselor has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Host by Counselor, Counselor hereby automatically, upon Counselor’s receipt of full payment from Host, unconditionally and irrevocably grants to Host during the term of such rights, an exclusive, even as to Counselor, irrevocable, perpetual, worldwide, fully-paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights. If Counselor has any rights to such Work Product that cannot be assigned or licensed, Counselor hereby automatically, upon Counselor’s receipt of payment from Host, unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Host or related to Host’s customers, with respect to such rights, and will, at Host’s request and expense, consent to and join in any action to enforce such rights. If payment is made only for partial delivery of Work Product, the grant described herein applies only to the portion of Work Product delivered.
  
  Assistance. Counselor will assist Host in every way, including by signing any documents or instruments reasonably required, both during and after the term of the Service Contract, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Host is unable, after reasonable effort, to secure Counselor’s signature on any document needed in connection with the foregoing, Counselor hereby designates and appoints Host and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Counselor.
  
  Immunity. A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. section 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
7. Worker Classification. Host is responsible and assumes all liability for determining whether Counselors are independent contractors or employees and engaging them accordingly; the Company disclaims any liability for such determination or the related Engagement. The Agreement does not create a partnership or agency relationship between Users. Counselor does not have authority to enter into written or oral (whether implied or express) contracts on behalf of the Company. For Service Contracts classified as independent contractor relationships, Host may not require an exclusive relationship. A Counselor classified as an independent contractor is free at all times to provide Counselor Services to persons or businesses other than Host, including any competitor of Host.
RECORDS OF COMPLIANCE. Users will each (1) create and maintain records to document satisfaction of their respective obligations under this Agreement; any Service Contract, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (2) provide copies of such records to the Company upon request. Nothing in this subsection requires or will be construed as requiring the Company to supervise or monitor a User’s compliance with this Agreement, or a Service Contract.
RELATIONSHIPS. The User acknowledges and agrees that the Company simply provides a venue through which Users may connect to do business. The Company is not a party to any agreement between Users of the Platform for any products or services. Further, the Company cannot attest to the veracity of the qualifications or background of any User. The Company does not verify any such information and does not guarantee the proficiency of any User on the Platform. The User hereby acknowledges and agrees that the Company may provide information on the Platform about a Counselor or Host, such as feedback, composite feedback, geographic location, or verification of identity or credentials. However, such information is based solely on data that Counselors or Hosts voluntarily submit to the Company and does not constitute and will not be construed as an introduction, endorsement, or recommendation by the Company; The Company provides such information solely to give Users a starting point to evaluate each other before entering into a business relationship.
1. Agreements Between Users. The User acknowledges and agrees that the agreement between Users is comprised of the following agreements (as applicable): (i) the Confidentiality Agreement located on this Platform; (ii) the engagement terms awarded and accepted on the Platform to the extent that the terms do not, and do not purport to, expand the Company’s obligations or restrict the Company’s rights under this Agreement or any other agreement on the Platform; (iii) any other contractual provisions accepted by both the Counselor and the Host, to the extent that the provisions do not, and do not purport to, expand the Company’s obligations or restrict the Company’s rights under this Agreement.
LICENSES AND THIRD PARTY CONTENT.
1. Platform License and Intellectual Property Rights. Subject to and conditioned on compliance with this Agreement, the Company grants the User a limited license to access and, if the User have created an Account, to use the Platform for the purpose of using the Services. The User must not access (or attempt to access) the Platform or Services by any means other than the interface provided, and the User will not use information from the Platform or Services for any purposes other than the purposes for which it was made available. The User agrees not to use the Platform or Services for offering any goods or services other than Counselor Services as permitted by this Agreement. The User must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Platform or Services in any way for any public or commercial purpose without the Company’s prior written consent. The User must not use any content of the Platform or Services on any other website or in a networked computer environment for any purpose except the User’s own viewing without the Company’s prior written consent. The User must not frame or link to the Platform or Services except as permitted in writing by the Company. The User must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Platform or Services unless expressly permitted by applicable law. The User will not access Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Services. The Company and its licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Platform and the Services. The Company logos and names are trademarks of the Company and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Platform or Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of the Company’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
2. User Content License. When the User posts User Content on the Platform or through the Services or provide the Company with User Content, the User represents and warrant that the User has the right, power, and authority to post that User Content and grant the licenses specified below. The User further represents and warrant that by posting or providing such User Content the User will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent the User Content may be copyrightable, the User represents, warrants, and covenants that the User is the owner of all the copyright rights to such User Content and that the Company may exercise the rights to the User’s User Content granted under this Agreement without any liability or obligation for any payment.The User retains all ownership rights in any User Content the User posts on the Platform. To the extent permitted by applicable law, the User also grants to the Company and its successors and affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and the User’s name, voice, and/or likeness as contained in the User’s User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Platform and the Company’s (and the Company’s successors’ and affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Platform (and derivative works thereof) in any media formats and through any media channels. The User also hereby grants each User a non-exclusive license to access the User’s User Content through the Platform and to use, reproduce, distribute, display, and perform such User Content to the extent permitted through the normal functionality of the Platform and subject to all applicable confidentiality and other provisions of this Agreement, the Company’s Privacy Policy, and applicable law.
  Notwithstanding the foregoing paragraph, the Company will only use or disclose User Content the User post to any non-public area of the Platform to the extent necessary to provide Services to the User as further described in the Company’s Privacy Policy.
  
  The licenses to User Content granted by the User in this Agreement will terminate within a commercially reasonable time after the User removes or deletes the User Content from the Platform, except that the User grants the Company and its successors and affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that the User have removed or deleted to the extent permitted by applicable law.
  
  The User may submit comments or ideas about the Platform and Services, including without limitation about how to improve the Platform or Services (collectively, “Ideas”). By submitting any Ideas, the User agrees that: (a) the User’s disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place the Company under any fiduciary or other obligation, (b) the User’s Ideas do not contain the confidential or proprietary information of third parties, and (c) the Company is free to use the Ideas without any additional compensation to the User and to disclose the Ideas on a non-confidential basis or otherwise to anyone. The User further acknowledge and agree that, by acceptance of the User’s submission, the Company does not waive any rights to use similar or related ideas known or developed by the Company or obtained from sources other than the User.
3. Unauthorized Access and Use; Platform Interference; Malicious Software. The Platform contains robot exclusion headers. The User agrees that the User will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without the Company’s express written permission. The User will not access the audiovisual content available on the Platform for any purpose or in any manner other than streaming. The User agrees that the User will not: (a) take any action that imposes or the Company believes may impose (in the Company’s sole discretion) an unreasonable or disproportionately large load on the Platform’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content the Company has submitted to the Platform) from the Platform, any software code that is part of the Platform, or any services that are offered on the Platform without the prior express written permission of the Company and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Platform or any activities conducted on the Platform; (d) bypass any measures the Company may use to prevent or restrict access to the Platform or any subparts of the Platform, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Platform or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Platform; (g) collect or harvest any personally identifiable information, including Account names, from the Platform; (h) access any content on the Platform through any technology or means other than those provided or authorized by the Platform; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.Additionally, the User agrees that the User will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Platform or the Platform software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow the User or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Platform or any other software, firmware, hardware, computer system, or network of the Company or any third party
4. Third Party Verification. The Platform makes available various services provided by third parties to verify a User’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of the Company. The Company neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Platform by anyone other than the Company’s authorized employees acting in their official capacities.
5. Links and Applications. The Platform may contain links to third-party websites. The Platform may also contain applications that allow the User to access third-party websites via the Platform. Such third-party websites are owned and operated by the third parties and/or their licensors. The User’s access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. The User acknowledges and agrees that the Company is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. The User is responsible for deciding if the User want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Platform does not imply that the Company endorse the linked site or application. The User uses the links and third-party websites at its own risk and agree that the User’s use of an application or third-party website via the Platform is on an “as is” and “as available” basis without any warranty for any purpose.
6. Mobile and Other Devices. When using the Company’s mobile applications, the User’s carrier’s normal rates and fees, such as text messaging and data charges, will still apply. The Company’s mobile applications may not contain the same functionality available on the website.
7. Platform Updates. The Company may from time to time in its sole discretion develop and provide Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. The User agrees that the Company does not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. The User will promptly download and install all Updates and acknowledge and agree that Services or portions thereof may not work properly should the User fail to do so. The User further agrees that all Updates will be subject to the terms of this Agreement, unless otherwise provided in terms associated with such Update. The Company reserves the right, at any time, to modify, suspend, or discontinue Services or any part thereof without notice. The User agrees the Company will not be liable to the User or any third party for any modification, suspension, or discontinuance of Services or any part thereof.
CONFIDENTIAL INFORMATION. Please refer to the “Confidentiality Agreement.”
DISCLAIMER OF WARRANTIES. THIS PLATFORM, THE CONTENT, AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THIS PLATFORM, ANY SERVICE OFFERED BY THE COMPANY, OR PRODUCT OR SERVICE PROVIDED THROUGH ANY AFFILIATE LINK IS AT THE USER’S SOLE RISK. THE COMPANY MAKES NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (B) THAT THE PLATFORM, OR THE SERVICE WILL MEET THE USER’S REQUIREMENTS; (C) THAT THE PLATFORM WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION, DATA OR CONTENT OBTAINED FROM THE PLATFORM, OR THE SERVICE WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY OR FREE FROM VIRUSES OR OTHER FORMS OF DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY THE USER FROM THE COMPANY, WHETHER IN ORAL, WRITTEN OR ELECTRONIC FORM, RELATING TO THE USER’S USE OF THIS PLATFORM, OR THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITED LIABILITY. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO THE USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE PLATFORM, THE CONTENT, ANY SERVICE OFFERED BY THE COMPANY, ANY USER POST MADE ON THE PLATFORM; ANY TRANSACTION FACILITATED THROUGH THE PLATFORM; OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) ANY PARTY’S USE OR INABILITY TO USE THE PLATFORM; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE PLATFORM; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY DATA OR ANY TRANSMISSION OF DATA; (D) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED (OR NOT TRANSMITTED OR RECEIVED) BY/FROM ANY PARTY; AND/OR (E) ANY CONTENT OR DATA FROM A THIRD PERSON ACCESSED ON OR THROUGH THE PLATFORM OR THE SERVICE (INCLUDING, BUT NOT LIMITED TO, THROUGH AFFILIATE LINKS); WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER.
RELEASE. In addition to the recognition that the Company is not a party to any contract between Users, the User hereby releases the Company, its affiliates, and its respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute the User have with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Counselor Services provided to Host by a Counselor and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Dispute Resolution Section.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.”
This release will not apply to a claim that the Company failed to meet its obligations under this Agreement.
INDEMNIFICATION. The User agrees to indemnify, hold harmless and defend the Company, along with its directors, employees, owners, and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (i) this Agreement and/or any breach or threatened breach by the User; (ii) the User’s use of the Platform or any Service offered by the Company; (iii) any unacceptable, unlawful, or objectionable use of the Platform or any Service offered to the User by the Company; or (iv) any negligent or willful misconduct by the User; (v) violation of any third party’s rights (including intellectual property rights) through the User’s use of the Platform or the Service; or (vi) any transaction between Users of the Platform.
AGREEMENT TERM AND TERMINATION.
1. Generally. This Agreement as amended from time to time, will become effective on the later of the Effective Date or the User’s first visit to the Platform and will remain in effect for the duration of the User’s use of the Platform or Services. Unless both the User and the Company expressly agree otherwise in writing, either of the Company may terminate this Agreement in the Company’s sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other agreements as well, except as otherwise provided herein. The User may provide written notice to legal@mirach.co. In the event the User properly terminates this Agreement, the User’s right to use the Platform is automatically revoked, and the User Account will be closed; however, (a) if the User has any open Engagements when it terminates this Agreement, the User will continue to be bound by this Agreement until all such Engagements have closed on the Platform; (b) the Company will continue to perform those Services necessary to complete any open Engagement or related transaction between the User and another User; and (c) the User will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Engagements, whichever is later, to the Company for any Services and to any Counselor for any Counselor Services. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release the User, any User with whom the User has entered into a Service Contract, or the Company from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of this Agreement necessary to implement the foregoing survive termination of this Agreement for any reason.Without limiting the Company’s other rights or remedies, the Company may temporarily suspend, indefinitely suspend, or permanently revoke the User’s access to the Platform and refuse to provide any or all Services to the User if: (i) the User breaches the letter or spirit of any terms and conditions of this Agreement; (ii) the Company suspects or becomes aware that the User have provided false or misleading information to the Company; or (iii) the Company believes, in its sole discretion, that the User’s actions may cause legal liability for the User, other Users, or the Company; may be contrary to the interests of the Platform or the User community; or may involve illicit activity. If the User Account is suspended or closed, the User may not use the Platform under the same Account or a different Account or reregister under a new Account without the Company’s prior written consent. If the User attempts to use the Platform under a different User Account, the Company reserves the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by the User to the extent permitted by applicable law.
  Without limiting the Company’s other rights or remedies, if the User engage in actions or activities that circumvent the Platform or otherwise reduce fees owed the Company under this Agreement, the User must pay the Company, and the User authorizes the Company to charge the User, for all fees owed to the Company and reimburse the Company for the Opt-Out Fee, if applicable, all losses and costs (including any and all time of the Company’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. In addition, violations this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
  
  If the User Account is closed for any reason, the User will no longer have access to data, messages, files, and other material the User keep on the Platform. If practicable or required by law, the Company will retain this information along with all the User’s previous posts and proposals for a period of up to five years from the date of closure. However, the User understands that any closure of the User Account may involve deletion of any content stored in such User Account for which the Company will have no liability whatsoever.
2. Enforcement of Agreement. The Company has the right, but not the obligation, to suspend or revoke the User’s access to the Platform and Services if the Company believe that the User have violated or acted inconsistently with the letter or spirit of this Agreement or violated the Company’s rights or those of another party. Without limiting the Company’s other rights or remedies, the Company may suspend or close the User Account, use self-help in connection with the Company’s rights to reclaim funds, and refuse to provide any further access to the Platform or the Services to the User if (a) the User breaches any terms and conditions of this Agreement or other agreement with the Company; (b) the Company is unable to verify or authenticate any information the User provides to the Company; or (c) the Company believes that the User’s actions may cause legal liability for the User, other Users, or the Company.
3. Effect of Termination. Termination of this Agreement and/or closing of the User Account will not relieve Hosts of the requirement to pay for Counselor Services performed prior to the Effective Date of the termination or thereafter for any Service Contracts executed before termination of this Agreement, which fees and expenses, together with any applicable taxes, Host hereby authorizes the Company to charge to its Payment Method pursuant to the Payment Terms Section of this Agreement. Subject to the applicable Dispute Resolution Procedures, the Company will pay the Counselor, in accordance with the provisions the Payment Terms Section of this Agreemen for all time recorded in the Transaction Logs incurred prior to the Effective Date of the termination or thereafter for any Service Contracts executed before termination of this Agreement.Except as otherwise required by applicable law, the Company will notify the User if the Company close the User’s Account, unless the Company believe, in the Company’s sole judgment, that giving notice may cause damage. The User acknowledge and agree that the value, reputation, and goodwill of the Platform depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with the User. The User therefore agree as follows: IF THE COMPANY DECIDES TO SUSPEND OR CLOSE YOUR ACCOUNT, THE COMPANY HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT SUSPENSION OR CLOSURE.
4. Survival. After this Agreement terminates, the terms of this Agreement and the other agreements that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
CANCELLATIONS, REFUNDS AND DISPUTES.
1. Dispute Process and Scope. For disputes arising between Hosts and Counselors, the User agree to abide by the dispute process that is explained in the Escrow Instructions that apply to the particular Service Contract.
2. If a dispute arises between the User and the Company, the Company’s goal is to resolve the dispute quickly and cost-effectively. Accordingly, the User and the Company agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the User’s relationship with the Company, the termination of the User’s relationship with the Company, or the Services (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, any Service Contract, escrow payments or agreements, any payments or monies the User claims are due to the User from the Company or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in any state, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to the User’s relationship with the Company or the termination of that relationship. Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision.
3. The User agrees that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration and Class Action/Jury Trial Waiver.”
4. Choice of Law. This Agreement, the other agreements, and any Claim will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
5. Informal Dispute Resolution. Before serving a demand for arbitration of a Claim, the User agree to first notify the Company of the Claim at legal@mirach.co, and the Company agrees to provide to the User a notice at the User’s email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from the User must include the User’s name, pertinent account information, a brief description of the Claim, and the User’s contact information, so that the Company may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from the Company must include pertinent account information, a brief description of the Claim, and the Company’s contact information, so that the User may evaluate the Claim and attempt to informally resolve the Claim. Both the User and the Company will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
6. Pre-Booked Sessions. The Users agree and acknowledge that there shall be a full refund of any fees paid when pre-booked sessions are canceled within the cancellation period or the Counselor does not show up.
MANDATORY ARBITRATION; CLASS ACTION WAIVER. This mandatory binding arbitration and class action/jury trial waiver provision (“Arbitration Provision”) applies to all Users except Users located outside of the United States and its territories. In the unlikely event the parties are unable to resolve a Claim within sixty (60) days of the receipt of the applicable Notice, the User and the Company agree to resolve the Claim by binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com.
1. Scope. Arbitration as provided in this Arbitration Provision is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any Claim the parties may have and survives after the User’s relationship with the Company ends. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
2. Location. Except as otherwise provided herein, arbitration will be conducted in Santa Clara County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS. Notwithstanding the foregoing, any Claims by Users that allege employment or worker classification claims will be conducted within twenty five (25) miles of where the User is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures” or “JAMS Employment Arbitration Rules.” The parties agree that any party will have the right to appear at the arbitration by telephone and/or video rather than in person. The User and the Company will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
3. Limitation. This Arbitration Provision does not apply to litigation between the Company and the User to which the User is a party that is or was already pending in a state or federal court before the expiration of the User’s opt-out period. This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits. Either the User or the Company may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter
4. Administrative Claims. Regardless of any other terms of this Arbitration Provision, a claim may be brought by or to, and remedies awarded by, an administrative agency if applicable law permits the agency to adjudicate, investigate or prosecute the claim notwithstanding the existence of this agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, or the National Labor Relations Board. Nothing in this Arbitration Provision will 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, if any.
5. Scope. This Arbitration Provision is the full and complete agreement for the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement is void or voidable.
6. Severability. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver below is deemed to be unenforceable, the User and Company agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
7. Class Action Waiver. This arbitration provision affects the User’s ability to participate in class, collective or representative actions. Both the User and the Company agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding (“Class Action Waiver”). The Class Action Waiver does not prevent the User from bringing a Claim in arbitration as a private attorney general solely on the User’s own behalf and not on behalf of others. Notwithstanding any other portion of this Arbitration Provision or the JAMS Rules, the arbitrator will have authority to hear any Claim on a class, collective, or representative basis if, only if, and only to the extent that, the arbitrator determines that the waiver of such class, collective, or representative Claim is unenforceable. The User and the Company agree that the User will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights under Section 7 of the National Labor Relations Act by filing or participating in a class, collective or representative action in any forum. However, the Company may lawfully seek enforcement of this arbitration provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims.
8. Opt-Out. The User may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying the Company in writing within thirty (30) days of the date the User first registered for the Platform. To opt out, the User must send a written notification to the Company at SUTE 1300, 388 Market Street, CA 94111 that includes (i) the User’s account username, (ii) the User’s name, (iii) the User’s address, (iv) the User’s telephone number, (v) the User’s email address, and (vi) a clear statement indicating that the User does not wish to resolve claims through arbitration and demonstrating compliance with the thirty (30) day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. Alternatively or in addition, the User may send this written notification to legal@mirach.co.
GENERAL.
1. Errors and Omissions. The Platform may contain substantive errors, technical inaccuracies, or typographical errors, including but not limited to inaccuracies relating to pricing or availability applicable to certain products or services offered by the Company. The Company shall not assume responsibility or liability for any such inaccuracies, errors or omissions, and shall have no obligation to honor any order affected by such inaccuracies. The Company reserves the right to make changes, corrections, cancellations and/or improvements to any information contained on the Platform, and to the products and programs described in such information, at any time without notice, including after confirmation of a transaction.
2. Products and Services. The Platform may contain information about products and services offered by the Company, not all of which are available in every location. Any reference to a Company product or service on the Platform does not imply that such product or service is or will be available in the User’s location. Furthermore, the Company may alter what portions of the Service is available to Users at any time in its sole discretion, including (but not limited to) removing certain parts of the Service from access at any time.
3. International Use. The Company does not represent that all content, materials and services on the Platform are appropriate or available for use in all geographic locations, and accessing such from certain locations may be illegal and prohibited. Those who do access content, materials and services from such locations act on their own initiative and the Company is not responsible for such Users’ compliance with local laws or other applicable laws. The User shall not access the foregoing where prohibited by law.
4. Force Majeure. In the event that the Company is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the Company or other causes beyond the Company’s reasonable control (a “Force Majeure Event”) the Company shall immediately give notice to the User and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended.
5. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
6. Entire Agreement. This Agreement, together with the other agreements referenced, sets forth the entire agreement and understanding between the User and the Company relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between the parties, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in this Agreement are included for ease of reference only and have no binding effect. Even though the Company drafted this Agreement, the User represents that the User had ample time to review and decide whether to agree to this Agreement. If an ambiguity or question of intent or interpretation of the Agreement arises, no presumption or burden of proof will arise favoring or disfavoring the User or the Company because of the authorship of any provision of this Agreement.
7. Assignability. User may not assign this Agreement, or any of its rights or obligations hereunder, without the Company’s prior written consent in the form of a written instrument signed by a duly authorized representative of the Company (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). The Company may freely assign this Agreement without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
8. Prevailing Language. The English language version of the Terms of Use will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Platform is controlled and operated from the Company’s facilities in the United States. The Company makes no representations that the Platform is appropriate or available for use in other locations. Those who access or use the Platform from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. The User must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. The User also warrants that the User are not prohibited from receiving U.S. origin products, including services or software. The User may not use or access the Platform if the User is: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit the User’s use or access to the Platform; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Platform are solely directed to individuals, companies, or other entities located in the United States.
CONTACTING US:For further question and or assistance, please contact customer support.