Terms.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY.
This Agreement constitutes a legal agreement between you ("you" or "User") and NearHero LLC. d/b/a NearHero ("NearHero" or "us"). This Agreement governs your use of our services and platform that facilitates communications between Users offered through our mobile application (the “App”) available on iOS and Android mobile device, and our website (the “Site”) located at NearHero.com Our services, platform, Site and Apps are collectively referred to as the "NearHero Platform".
By accessing, using or registering with the NearHero Platform or any portions thereof, you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as we may publish from time to time. Please read this Agreement carefully. If you do not agree to accept and be bound by this Agreement, you must immediately stop using the NearHero Platform. NearHero 's acceptance is expressly conditioned upon your assent to this Agreement in its entirety. If this Agreement is considered to be an offer by us, acceptance is expressly limited to this Agreement.
By using the NearHero Platform, you represent and warrant that: (i) you are at least 18 years old, are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
To the extent permitted and except where prohibited by applicable law, these Terms of Use include:
Your agreement that either party may compel binding arbitration for most types of disputes, and your agreement to submit to an informal dispute resolution process for at least 30 days prior to the initiation of any claim (Section 19).
Your agreement that no claims can be adjudicated on a class basis (Section 19).
Your agreement that the NearHero Platform is provided "as is" and without warranty (Section 17).
Your agreement that the NearHero Platform is solely a communications platform providing a method for Professional Services to be booked, that all Professional Services are performed by third parties, and that NearHero has no liability for any Professional Services or any acts or omissions of third parties (Sections 1 and 17)
Your acknowledgment of and agreement to pay NearHero 's Trust and Support Fee that will be applied to each appointment of a Professional Service requested through the NearHero Platform (Section 3(f)).
Your acknowledgment of and agreement to NearHero 's cancellation policies and cancellation fees (Section 4).
Your agreement to release NearHero from liability based on claims relating to Services and otherwise (Section 17) and your agreement to the limitation of time within which a claim can be brought (Section 22).
Your agreement to indemnify NearHero from claims due to your use, misuse or inability to use the NearHero Platform, the Merchandise and/or Professional Services, your violation of this Agreement, applicable laws or third party rights, and/or content or information submitted from your account to the NearHero Platform (Section 18).
Your consent to any modifications or amendments to this Agreement (Section 23).
Your consent to the collection, use, sharing and transfer of your data as outlined in the Privacy Policy as updated from time to time.
2. Personal Information; User Accounts.
a. Collection of your Personal Information. Some of the materials available on the NearHero Platform may require prior registration to access. If you decide to access such materials you will be required to register. We may refuse to grant you, and you may not use, a username, email address or screen name that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion. When you complete a registration with us, you will be required to provide certain personal information. You agree that such information will be true, accurate and complete, and that you will update this information promptly when it changes. If you provide any information that is untrue or inaccurate, not current, or incomplete, or if we suspect that your information is untrue or inaccurate, not current, or incomplete, we may, in our sole discretion, suspend or terminate your right to access any material for which registration is required. Any personally identifiable information supplied hereunder will be subject to the terms of the Privacy Policy.
b. Account, Password and Security. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any username, password and account provided by you or us for accessing the NearHero Platform. You are solely and fully responsible for all activities that occur under your password or account, except that NearHero may, in certain circumstances, access your account to make changes that you request, such as rescheduling a Service appointment. NearHero has no control over the use of any User's account by the User or third parties 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 must contact us immediately at info@nearhero.com. Nothing in this section shall affect NearHero 's rights to limit or terminate the use of the NearHero Platform, as provided below in section 4(b).
c. Proof of Identity. You will provide us with such proof of identity as we may reasonably request from time to time.
d. Text Messages and Phone Calls. By using the NearHero platform, you expressly consent and agree to accept and receive communications from us, including via text message, calls, and push notifications to the cellular telephone number you provided to us. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. By consenting to being contacted by NearHero , you understand and agree that you may receive communications, including marketing communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages, sent by or on behalf of NearHero , its affiliated companies and/or Users/Professionals, including but not limited to: operational communications concerning your account or use of the NearHero Platform or Services, updates concerning new and existing features on the NearHero Platform, communications concerning promotions run by us, and news concerning NearHero and industry developments. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the NearHero Platform or the Services. If a contact number you have provided to us is no longer your number, you agree to notify us promptly that you can no longer be reached at that number. You represent that you have received, and are authorized to convey to us, the consent of any authorized users on your account to be contacted by us as described in this Section. You agree that all consents provided in this Section will survive cancellation of your account. You may opt-out of receiving promotional or marketing texts or calls from NearHero at any time. You may opt-out of receiving all text (SMS) messages from NearHero (including informational or transactional messages) by replying with the word “STOP” to a text message from us; however you acknowledge that opting out of receiving all texts may impact your use of the NearHero Platform or the Services. You also acknowledge that NearHero or its third party service providers may record customer service calls after notice to you and with your consent, in order to assist you when you contact our customer support services. You agree to NearHero ’s use of a service provider to mask your telephone number when you call or exchange text (SMS) messages with a Service Professor or Service Requestor using a telephone number provided by NearHero . During this process, NearHero and its service provider will receive in real time and store call data, including the date and time of the call or text (SMS) message, the parties’ phone numbers, and the content of the text (SMS) messages. You agree to the masking process described above and to NearHero ’s use and disclosure of this call data for its legitimate business purposes. You agree to NearHero ’s use of a service provider to mask your telephone number when you call or exchange text (SMS) messages with a Service Professor or Service Requestor using a telephone number provided by NearHero . During this process, NearHero and its service provider will receive in real time and store call data, including the date and time of the call or text (SMS) message, the parties’ phone numbers, and the content of the text (SMS) messages. You agree to the masking process described above and to NearHero ’s use and disclosure of this call data for its legitimate business purposes.
e. Emails. NearHero may send you confirmation and other transactional emails regarding the Professional Services. NearHero and its affiliates may also send you emails about other services that we think might interest you ("Promotional Emails"). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting us.
3. Payments; NearHero Guarantee; Claims.
a. Payments. Users of the NearHero Platform contract for Professional Services directly with other Users. NearHero is not a party to any contracts for Professional Services. The NearHero Platform facilitates these contracts by supplying a medium through which Requesters can connect with Professionals, schedule Professional Services, and make payments for Professional Services ("Payments"). Requesters are obligated to pay in advance for the Professional Services and/or Merchandise they order through the NearHero Platform. Prior to the scheduled Professional Service, we will charge the Requester's credit card according to the amount the Requester has agreed to on the NearHero Platform with respect to all Professional Services and/or Merchandise, the Requester has ordered, and for all purchases and payments for reimbursement costs, fees or expenses associated with a Professional Service. The Requester hereby authorizes us to charge the credit card on file in the Requester's NearHero Platform account for such amounts. We will use third party services to process credit card information. By accepting this Agreement, you are giving NearHero (or a third-party payment processor on NearHero ’s behalf) permission to charge your on-file credit card, debit card, or other approved methods of payment for fees that you owe NearHero . Depending on the transaction you selected or services requested, NearHero may charge you on a one-time or recurring basis. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Professional Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with NearHero at the prices in effect when such charges are incurred. We retain the right, in our sole discretion, to place a hold on the Requester's credit card for an ordered or completed Professional Service transaction. Seventy-two (72) hours after a Professional Service is completed, if there is no complaint by the Requester, we will mark the Professional Service as closed. If the Requester has agreed with the Professional to extend or reduce the hours in or to reschedule a requested Professional Service, the Requester bears the responsibility for notifying NearHero . Requesters must notify NearHero by contacting us at info@nearhero.com All Payments by Requesters must be made through the NearHero Platform. Any Payments paid or Professional Services scheduled outside of the NearHero Platform are not subject to our NearHero Guarantee. While we will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. Requesters will be liable for all transaction taxes on the Professional Service(s) provided (other than taxes based on NearHero 's income). If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to NearHero or third parties, then NearHero may withhold any payments to you for as long as we determine any related risks to NearHero or third parties persist. For any amounts that we determine you owe us, we may (a) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (b) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (c) reverse any credits to your bank account; or (d) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate this Agreement, then we may in our sole discretion permanently withhold any payments to you.
b. Job Rate. The rate per hour for a Professional Service ("Job Rate") depends on factors, such as location and the service provider’s fee and payment terms may increase. Therefore, the same Professional Service may cost more if ordered from another service provider if the Professional Service.
4. Term and Termination; Cancellation of Professional Services; Minimum Commitment; Membership; Survival.
a. Term. This Agreement shall continue in full force and effect until such time as it is terminated by you or by us.
b. Termination by NearHero . We may terminate this Agreement or terminate or suspend your right to use the NearHero Platform at any time for any or no reason (including, without limitation, in the event that we believe that you have breached this Agreement or any policy posted on the NearHero Platform, or if we otherwise find that you have engaged in inappropriate and/or offensive behavior (collectively, "Prohibited Conduct") by providing you with written or email notice of such termination to the physical or email address you have provided us, and termination will be effective immediately upon such notice. Except in the event that we terminate or suspend your right to use the NearHero Platform due to any Prohibited Conduct, we will refund in full any payments for Professional Services that have not been performed or completed. If we terminate or suspend your account for any reason, 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 or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. When terminating your account, NearHero may delete the account and all the information in it. You have no ownership rights to your account.
c. Termination by You. You may terminate this Agreement by completely and permanently ceasing to use the NearHero Platform (provided that there are no outstanding Professional Services ordered under your password or account) and by closing any account you have opened on the NearHero Platform. If you attempt to terminate this Agreement while there are still outstanding Professional Services ordered under your password or account, this Agreement shall not terminate until such Professional Services have been performed or otherwise canceled as permitted by NearHero.
5. Links to and Plug-Ins from Other Websites or Media.
Links (such as hyperlinks) from the NearHero Platform to and plug-ins from sites or applications owned, operated or controlled by third parties (collectively, "Third Party Sites") do not constitute the endorsement by NearHero of the Third Party Sites or their content. Such links and plug-ins are provided as an information service, for reference and convenience only. NearHero does not control any Third Party Sites, and is not responsible for their content. It is your responsibility to evaluate the content and usefulness of the information obtained from Third Party Sites. The use of any Third Party Site is governed by the terms and conditions of use and privacy policy of that Third Party Site. YOU ACCESS THIRD PARTY SITES AT YOUR OWN RISK. NEARHERO EXPRESSLY DISCLAIMS ANY LIABILITY ARISING IN CONNECTION WITH YOUR USE AND/OR VIEWING OF ANY THIRD PARTY SITES, AND YOU HEREBY AGREE TO HOLD NearHero HARMLESS FROM ANY LIABILITY THAT MAY RESULT FROM THIRD PARTY SITES.
6. Submission Areas.
The NearHero Platform may contain blogs, message boards, applications, opportunities to provide reviews, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Users to communicate with other Users and with NearHero (collectively, "Submission Areas"). Some areas in the Submission Areas within the NearHero Platform will be public and NearHero will not be responsible for any information or materials posted in such public areas. NearHero may, in its discretion, publicly post submissions you submit to a non-public area of the NearHero Platform. You may only use Submission Areas to send and receive messages and material that are relevant and proper to the applicable forum and that comply with this Agreement. "Your Information" is defined as any information and materials you provide to us or other Users in connection with your registration for and use of the NearHero Platform, including without limitation, information and materials that are posted or transmitted for use in Submission Areas. You are solely responsible for Your Information, and we are merely a passive conduit for your online distribution and publication of Your Information. You hereby represent and warrant that Your Information: (a) will comply at all times with this Agreement, including but not limited to Section 7 (Rules for Use of the NearHero Platform) below, and with Section 2 (Personal Information; User Accounts) above; and (b) will not create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers (ISPs), customers, or other partners or suppliers. You hereby grant us a non-exclusive, transferable, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all of Your Information that is posted to Submission Areas from or through your account on the NearHero Platform, including but not limited to all images, videos, musical works and text included in such postings and to such other persons and/or entities as NearHero may designate. The rights you grant in this license are for the limited purpose of operating, advertising, marketing, promoting, and improving the NearHero Platform. We reserve the right to remove postings from Submission Areas in our sole discretion.
7. Rules for Use of the NearHero Platform.
During the term of this Agreement, Requesters may use the NearHero Platform for your personal use only (or for the use of a person, including a company or other organization that you validly represent). Requesters may use the NearHero Platform to request Professional Services solely with respect to a location where the Requester is legally authorized to have Professional Services performed. Requesters may not use the NearHero Platform for any other purposes or in connection with any commercial endeavors whatsoever without our express prior written consent. Requesters agree that an order for Professional Services is an offer, which is only accepted when the Requester receives a confirmation of the order. Requesters agree to treat Professionals courteously and lawfully, to provide a safe and appropriate working environment for them that is in compliance with all applicable laws and regulations, and to provide reasonable co-operation to Professionals to enable them to supply Professional Services. Requesters agree to comply with our complaint and other policies designated on the Site. Requesters acknowledge that their selected Professional may be unavailable from time to time. Professionals agree to provide Professional Services in accordance with all applicable laws and regulations and with the Service Agreement. You shall NOT use the NearHero Platform (including but not limited to any Submission Areas) to do any of the following:
a. Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
b. Upload files that contain software or other material that violates the intellectual property rights or rights of privacy or publicity of any third party.
c. 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 but not limited to our staff and other Users.
d. Post a review or rating unless such review or rating contains your independent, honest, genuine opinion.
e. Use the NearHero Platform or any Professional Service for any purpose or in any manner that is in violation of local, state, national, or international law.
f. Publish, post, upload, distribute or disseminate any profane, defamatory, false, misleading, fraudulent, threatening or unlawful topics, names, materials or information, or any materials, information or content that involve the sale of counterfeit or stolen items.
g. Advertise or offer to sell any goods or services for any commercial purpose or solicit employment or contract work which is not relevant to services offered through the NearHero Platform. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to Professional Services facilitated through the NearHero Platform without express written permission from us.
h. Use the NearHero Platform to collect usernames and/or email addresses of members by electronic or other means without our express prior written consent. i. Conduct or forward surveys, contests, pyramid schemes, or chain letters.
j. Impersonate another person or allow any other person or entity to use your identification to post or view comments or otherwise use your account.
k. Post the same note repeatedly (referred to as 'spamming'). Spamming is strictly prohibited.
l. Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the NearHero Platform, or post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
m. Restrict or inhibit any other User from using and enjoying the NearHero Platform.
n. Imply or state that any statements you make are endorsed by us, without our prior written consent.
o. Reverse engineer, disassemble, decompile, translate, modify, adapt, license, sublicense, alter, copy, distribute, hack or interfere with the NearHero Platform, its servers or any connected networks, use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the NearHero Platform in any manner, or attempt to do any of the foregoing.
p. Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
q. Upload content 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.
r. Upload content that provides materials or access to materials that are obscene, adult or sexual or that exploit anyone, and in particular people under the age of 18, in an abusive, violent or sexual manner.
s. Register to use the NearHero Platform under different usernames or identities, after your account has been suspended or terminated.
t. Mirror or archive any part of the NearHero Platform or any content or material contained on the NearHero Platform without NearHero 's written permission.
u. Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting or providing false or misleading representations in the sender information, subject line, locator, or content of any electronic message.
v. Alter transmission data without NearHero 's consent
w. Purchase Merchandise for the purposes of reselling it.
8. No Employment.
NearHero provides a software platform which allows you to connect with independent Professionals. NearHero is not the employer of any Professional. You acknowledge that we do not supervise, direct, or control a Professional’s work or Professional Services performed in any manner. A Professional provides services to you as an independent contractor, and is not an employee, joint venture, partner, agent, or franchisee of NearHero for any purpose whatsoever.
9. Special Promotions; Gift Cards and Vouchers.
i. Promotional credit is only eligible for the specific services designated by NearHero. Promotional credit is valid for a limited time only and expires on the date indicated when you receive the applicable promotional credit. Failure to use promotional credit before such expiration date will result in the forfeiture of promotional credit. NearHero reserves the right to cancel promotional credit at any time. No refunds will be granted for any expired or canceled promotional credit.
ii. NearHero promotional credit has no intrinsic value, is not redeemable for cash, has no cash value, and serves merely as a means to recognize and provide an incentive to use the NearHero Platform. Promotional credits may not be purchased for cash and NearHero does not sell promotional credit. Promotional credit is nonrefundable.
iii. Promotional credits will not be applied against any sales, use, gross receipts or similar transaction based taxes that may be applicable to you, and/or fees or charges for use of any ineligible services.
iv. Your NearHero account will be billed for all fees and charges for use of any ineligible services. Each promotional credit can only be used once and your NearHero account will be billed for all fees and charges for use of any eligible service in excess of the amount of available promotional credit.
v. Promotional credit you receive is personal to you. You may not sell, license, rent, or otherwise transfer promotional credit. Promotional credit may be applied only to your account, and may not be applied to any other account.
c. Referral Credits. In the event that you are given a code through which you may refer a friend to the NearHero Platform in exchange for a referral credit, you shall not use any online marketing or advertising to promote such code or to artificially increase the amount of credits awarded. By way of example, you may not post, or cause, request or permit a third party to post any such code on a coupon website, nor use any paid search marketing, online advertising, forum posting, newsgroup posting or bulk email to disseminate such code. You may only share such code with your personal friends and acquaintances for legitimate referral purposes, as determined by us in our sole discretion. NearHero referral credits are redeemable only for Professional Services. NearHero referral credits have no cash value and are not redeemable for cash unless otherwise required by law. Without limiting our other rights and remedies, we may terminate such code and/or your account for any breach of this Section. For questions or additional information, contact us at info@nearhero.com
d. Vouchers. i. NearHero vouchers or promotional codes for special offers or discounts ("Vouchers") may be available and can be used to pay in part or in full for Professional Services. ii. You agree that you will only use one Voucher per person and will use Vouchers in accordance with the Voucher terms and conditions. iii. You agree that you will comply with all Voucher terms and conditions. iv. Use of Vouchers is further subject to the below terms and conditions regarding Gift Cards
10. Intellectual Property Rights.
The NearHero Platform, and the information, data, content and materials, which it contains ("NearHero Materials"), are the property of NearHero and/or its affiliates and licensors, excluding User-generated content, which NearHero has a right to use as described below. The NearHero Materials are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. NearHero and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the NearHero Materials. Any use of NearHero Materials, other than as expressly permitted herein, is prohibited without the prior permission of NearHero and/or the relevant right holder. The service marks and trademarks of NearHero , including without limitation NearHero book.com, NearHero .com and the NearHero logo are service marks owned by NearHero . Any other trademarks, service marks, logos and/or trade names appearing on the NearHero Platform are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the NearHero Platform without the express prior written consent of the owner.
11. Copyright Complaints and Copyright Agent.
NearHero respects the intellectual property of others, and expects Users to do the same. NearHero will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided on or in connection with the NearHero Platform infringe upon that person's or entity's copyright or other intellectual property right (such person or entity, a "Complainant") and sends to NearHero a properly submitted copyright notice as indicated below, NearHero will investigate, and if it determines, in its discretion, that the material is infringing, NearHero will remove the content and may terminate the access of the User who posted such content to the NearHero Platform in the case of repeat infringers. All notices claiming an infringement of copyright rights must contain the following: (i) Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the Complainant's ownership of the work, should be included. (ii) A statement specifically identifying the location of the infringing material, with enough detail that NearHero may find it on the NearHero Platform. Please note: it is not sufficient to merely provide a top level URL. (iii) The complete name, address, telephone number and email address of Complainant. (iv) A statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law. (v) A statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed; (vi) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed. NearHero 's contact information for notice of alleged copyright infringement is: Email: legal@NearHero .com Or via Mail:
Attn: Copyright Agent NearHero LLC d/b/a NearHero 5907 West 28 Ave Miami, FL 33016
12. The App / Mobile Devices
a. The NearHero Platform may allow you to access our services, download our Apps, upload content to the NearHero Platform, and receive messages on your mobile device (collectively "Mobile Features"). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data, and other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
b. You acknowledge that your use of the Apps is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS or Android).
c. NearHero is not liable if you do not have a compatible mobile device or if you download the wrong version of an App for your mobile device. NearHero reserves the right to terminate the use of the Apps or any other aspect of the NearHero Platform should you be using the Apps or the NearHero Platform with an incompatible or unauthorized device. d. App Store Sourced Application. (i) With respect to Apps accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only:
(i) on an Apple-branded product that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. NearHero reserves all rights in and to the Apps not expressly granted to you under this Agreement. (ii) You acknowledge and agree that (i) this Agreement is valid between you and NearHero only, and, that Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) NearHero , not Apple, is solely responsible for the App Store Sourced Application and the NearHero Platform Content. (iii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application. (iv) To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced Application. (v) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and NearHero , NearHero and not Apple is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. (vi) Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims. (vii) You acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement for App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement for App Store Sourced Applications against you as a third-party beneficiary thereof. (viii) Without limiting any provisions of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
13. Modifications to the NearHero Platform.
We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, the NearHero Platform or any content or information on the NearHero Platform with or without notice. We will not be liable to any party for any modification or discontinuance of the NearHero Platform.
14. Confidentiality.
The term "Confidential Information" shall mean any and all of NearHero 's trade secrets, confidential and proprietary information, personal information and all other information and data of NearHero that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. The NearHero Platform contains secured components that are accessible only to those who have been granted a username and password by NearHero . Information contained within the secure components of the NearHero Platform is confidential and proprietary. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of NearHero and agree that you will not use Confidential Information other than as necessary for you to make use of the NearHero Platform as expressly permitted by this Agreement and only during the term of this Agreement. You will not disclose or transfer (or seek to induce others to disclose or transfer) any Confidential Information for any purpose. You shall promptly notify NearHero in writing of any circumstances, which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall implement reasonable technical, physical and administrative safeguards to protect Confidential Information from loss or theft, as well as unauthorized access, disclosure, copying, transfer, modification or use. You shall return all originals and any copies of any and all materials containing Confidential Information to NearHero upon termination of this Agreement for any reason whatsoever.
15. Disclaimer of Warranties; Limitation on Liability.
a.USE OF THE NEARHERO PLATFORM IS ENTIRELY AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE NEARHERO 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 OR GENERAL PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER NEARHERO NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE NEARHERO PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO ANY CONTENT AVAILABLE IN OR THROUGH THE NEARHERO PLATFORM; NOR DO THEY MAKE ANY WARRANTY AS TO ANY PROFESSIONAL'S REGISTRATION, PROFESSIONAL ACCREDITATION OR LICENSE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE NEARHERO PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, QUALITY, SUITABILITY, SAFETY, COMPLETENESS OR CONTENT OF THE SERVICES, PROFESSIONAL SERVICES, ANY PRODUCTS, MERCHANDISE, CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE NEARHERO PLATFORM OR THIS AGREEMENT. ACCESS TO THE NEARHERO PLATFORM IS PROVIDED FREE OF CHARGE AS A COURTESY. NEITHER NEARHERO NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE NEARHERO PLATFORM (INCLUDING BUT NOT LIMITED TO THE CONDUCT OF ANY REQUESTERS OR PROFESSIONALS). NEITHER NEARHERO NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE NEARHERO PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. NEARHERO AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS. b. NO LIABILITY. YOU AGREE NOT TO HOLDNEARHERO , ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES' AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, "MEMBERS") LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, "LIABILITIES") THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE NEARHERO PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND LOSS OR DESTRUCTION OF PERSONAL PROPERTY), SERVICES, ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY NEARHERO OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL NEARHERO OR MEMBERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE NearHero PLATFORM OR ANY PROFESSIONAL SERVICES OR MERCHANDISE, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. .NEARHERO AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE NEARHERO PLATFORM, THE PROFESSIONAL SERVICES, THE MERCHANDISE OR THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT NearHero OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LESSER OF (1) TOTAL FEES PAID BY YOU TO NEARHERO DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE. OR (2) THE AMOUNT EXPRESSLY PERMITTED UNDER THE NEARHERO HAPPINESS GUARANTEE AS SET FORTH IN SECTION 3(d). c.RELEASE. NEARHERO AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE NEARHERO PLATFORM. THE NEARHERO PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. TO THE EXTENT THAT THE NearHero PLATFORM CONNECTS A USER TO A THIRD PARTY PROVIDER FOR THE PURPOSES OF PROVIDING OR OBTAINING MERCHANDISE HEREUNDER, NEARHERO WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE NEARHERO FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY SERVICE PROVIDER. BECAUSE NearHero IS NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY PROFESSIONAL SERVICE, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE NEARHERO AND MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT 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 DISPUTE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "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." d.ADDITIONAL DISCLAIMER. THE QUALITY OF THE PROFESSIONAL SERVICES AND/OR THE MERCHANDISE SCHEDULED, REQUESTED OR OBTAINED THROUGH THE USE OF THE NEARHERO PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE PROFESSIONAL WHO ULTIMATELY PROVIDES SUCH PROFESSIONAL SERVICES TO YOU AND/OR THE THIRD PARTY MERCHANDISE PROVIDER OR MANUFACTURER. YOU UNDERSTAND, THEREFORE, THAT BY USING THE NEARHERO PLATFORM, YOU MAY BE EXPOSED TO PROFESSIONAL SERVICES AND/OR MERCHANDISE THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE NEARHERO PLATFORM, AND SUCH PROFESSIONAL, AT YOUR OWN RISK. NOTHING IN THIS AGREEMENT OR THE NEARHERO PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL. BY USING THE NEARHERO PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE NEARHERO PLATFORM. YOU ACCEPT THAT, AS A CORPORATION, NEARHERO HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST NEARHERO’S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE NearHero 'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS NEARHERO. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
16.Indemnification.
You hereby agree to indemnify, defend, and hold harmless NearHero , its licensors, and each such party's directors, officers, parent organizations, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys' fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use the NearHero Platform, any Merchandise and/or any Professional Service, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including but not limited to Professionals), and (v) Your Information and content that you submit or transmit through the NearHero Platform. NearHero 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 such claim or matter without the prior written consent of NearHero.
17.Mutual Arbitration Agreement.
a.Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and NearHero , including without limitation any dispute or claim related to or arising out of this Agreement ("Dispute"), you and NearHero may attempt to negotiate any Dispute informally (the "Informal Negotiations") before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this section is your email address and/or physical address that you have provided to NearHero . NearHero 's address for such notices is: info@nearher.com and/or by mail to NearHero LLC., Attn: Legal, 5907 west 28 ave, Miami FL 33016 b.Arbitration. If a Dispute is not resolved through Informal Negotiations, you and NearHero agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration ("Arbitration Agreement"). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") 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). 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). If you are unable to pay such costs, NearHero will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the "Class Action Waiver" described in Section d below. c.Excluded Disputes. You and NearHero agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Arbitration Agreement may be rendered ineffectual. d.WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION. You and NearHero agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator. e.Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator's decision/award. f.Severability. You and NearHero agree that if any portion of this section entitled "Mutual Arbitration Agreement" is found illegal or unenforceable, that portion will be severed and the remainder of this section 19 will be given full force and effect.
18.Governing Law; Jurisdiction.
Except for the Arbitration Agreement in Section 19, which is governed by the Federal Arbitration Act and except as may be prohibited by the law of the State in which you primarily reside, this Agreement is governed and interpreted pursuant to the laws of the State of Florida United States of America, notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, You agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the county of Miami, Florida.
19.Assignment.
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 shall inure to the benefit of permitted successors and assigns.
20.General Provisions.
All provisions that should by their nature survive the expiration or termination of this Agreement, including without limitation, Sections 8, 10 and 14-24, shall so survive. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. A failure by us 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 NearHero 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. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement. You agree that regardless of any statute or law to the contrary, any Dispute, claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such Dispute, claim or cause of action arose or be forever barred. All notices provided by a party in connection with this Agreement will be deemed given as of the day they are received either by email, messenger, delivery service, or in the U.S. Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: Your address for such notices is your email address and/or physical address that you have provided to NearHero . NearHero 's address for such notices is: info@nearhero.com and/or by mail to NearHero LLC 5907 west 28 ave, Miami FL 33016. The captions in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This Agreement shall not be modified except in writing signed by both parties or by means of a new posting by NearHero , as described below. This Agreement shall be interpreted as if jointly drafted by the parties. NearHero shall have no liability to you for any failure or delay in performing its obligations in this Agreement where such failure or delay is caused by an event or circumstance beyond NearHero 's reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, failure of Professionals to perform, flood, fire, explosion, acts of terrorism or accident.
Use at Your Own Risk
Any action taken upon the use of the app is strictly at your own risk, and we will not be liable for any losses and damages nor responsible for any outcome of using the app. We do not make any warranties or representations as to the content of the App, the quality or availability.
21.Changes to this Agreement.
We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the NearHero Platform. Your continued use of the NearHero Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
22.Severability.
These Terms shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
4.SMS TERMS AND CONDITIONS
By signing up to NearHero you expressly consent to receive marketing or non-marketing text messages, as applicable, from NearHero and others texting on its behalf, including text messages made with an automatic telephone dialing system at the telephone number(s) that you provide. You may opt-out of these communications at any time. Consent to receive text messages is not required. In addition, consent is not a condition of any purchase.
24.Contact Information.
If you have any questions regarding this Agreement, please contact us at
info@nearhero.com or by mail the below address:
NearHero LLC
5907 West 28 Ave
Miami, Fl 33016
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THESE TERMS OF USE AND PRIVACY POLICY, AND AGREE THAT MY USE OF THE NearHero PLATFORM IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Last updated: April 10, 2020.