- CONTRACTUAL RELATIONSHIP
These Terms govern the access and use by you (“Job Provider” or “you”) of the Platform made available by INSTIRE. By accepting these Terms, you represent and warrant that you are authorized to agree to these Terms on behalf of Job Provider and to bind Job Provider to these Terms.
Supplemental terms may apply to the Platform, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you and you must accept such supplemental terms in order to receive the applicable service(s). Such supplemental terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable services.
Any new features or tools which are added to the current Platform or our services shall also be subject to these Terms. You can review the most current version of these Terms at any time on this page. We reserve the right to update, change, modify, or replace all or any part of these Terms by posting updates, modifications, and/or changes to our Platform. It is your responsibility to check this page periodically for any such changes or updates. Your continued use of or access to the Platform or our services following the posting of any changes, modifications, or updates constitutes your express acceptance thereof.
- THE PLATFORM
INSTIRE has created a technology platform that connects Job Providers with Job Applicants to arrange and schedule jobs/shifts. YOU ACKNOWLEDGE THAT INSTIRE DOES NOT PROVIDE INSTIRE JOBS/SHIFTS SERVICES.
Job Providers are responsible to obtain and maintain all necessary insurance policies for Job Applicant to be able to provide such jobs/shifts requested by Job Provider, including, but not limited to, workers’ compensation.
2.1 License. Subject to your compliance with these Terms, INSTIRE grants you a limited, non-exclusive, non-sub licensable, revocable, non-transferrable license to: (i) access and use the INSTIRE Platform on your personal device solely in connection with your use of the Platform; and (ii) access and use any content, information and related materials that may be made available through the Platform, in each case solely in connection with your use of the Platform. Any rights not expressly granted herein are reserved by INSTIRE and INSTIRE’s licensors.
2.2 Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Platform; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform except as expressly permitted by INSTIRE; (iii) decompile, reverse engineer or disassemble the Platform except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Platform; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Platform or unduly burdening or hindering the operation and/or functionality of any aspect of the Platform; or (vi) attempt to gain unauthorized access to or impair any aspect of the Platform or its related systems or networks.
2.4 Ownership. The Platform and all rights therein are and shall remain INSTIRE’s property or the property of INSTIRE’s licensors. Neither these Terms nor your use of the Platform convey or grant to you any rights: (i) in or related to the Platform except for the limited license granted above; or (ii) to use or reference in any manner INSTIRE’s company names, logos, product and service names, trademarks or services marks or those of INSTIRE’s licensors.
2.5 User Submissions. Anything you post, upload, share, store, or otherwise provide through the Platform is your “User Submission,” which may include your chat data or job/shift postings. Some User Submissions are viewable by other users. In order to display your User Submissions on the Platform, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions.
For all User Submissions, you hereby grant INSTIRE a license to translate, modify (for technical purposes), for example making sure your content is viewable on a Device and reproduce and otherwise act with respect to such User Submissions, in each case to enable INSTIRE to operate the Platform. This is a license only – your ownership in User Submissions is not affected.
If you store a User Submission in your own personal account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant INSTIRE the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited User Submission”), then you grant INSTIRE the licenses above, as well as a license to display, perform, and distribute your Limited User Submission for the sole purpose of making that Limited User Submission accessible to such other specified users, and providing the services necessary to do so. Also, you grant such other specified users a license to access that Limited User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Platform.
If you share a User Submission publicly on the Platform and/or in a manner that more than just you or certain specified users can view (a “Public User Submission”), such as your job/shift posting, then you hereby grant INSTIRE the licenses above, as well as a license to use, copy, modify, translate, distribute, perform, publish, and process your Public User Submission for the purpose of making that Public User Submission accessible to all INSTIRE users and providing the services necessary to do so, as well as all other rights necessary to use and exercise all rights in the Public User Submission in connection with the Platform and/or otherwise in connection with INSTIRE’s business for any purpose, provided that INSTIRE will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Platform. Also, you grant all other users of the Platform a license to access that Public User Submission and to use and exercise all rights in it, as permitted by the functionality of the Platform. You agree that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide. When you delete your account, we will stop displaying your User Submissions to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from INSTIRE’s records, and that your User Submissions may remain viewable elsewhere to the extent it was copied or stored by others. You further understand and agree that INSTIRE, in performing the required technical steps to provide the Platform to our users (including you), may need to make changes to your User Submissions to conform and adapt such User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
2.6 Content on the Platform. The materials displayed or available on or through the Platform, including but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Platform, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you (i) without the prior consent of the owner of that Content, or (ii) in a way that violates someone else’s (including INSTIRE’s) rights.
Any information or content publicly posted or privately transmitted through the Platform is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and INSTIRE is not liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. INSTIRE cannot control and has no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release INSTIRE from all liability for you having acquired or not acquired Content through the Platform.
You are responsible for all Content you contribute, in any manner, to the Platform and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You may not upload, distribute or otherwise publish any Content that is invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, threatening, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful or otherwise objectionable, including but not limited to any Content that encourages conduct that would constitute a criminal offense or otherwise violates any applicable U.S. or foreign laws.
2.7 Copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable any content posted through the Platform that is alleged to be infringing, and to terminate the accounts of repeat alleged infringers, in accordance with the Digital Millennium Copyright Act (the “DMCA“). To report potentially infringing content, please e-mail us at firstname.lastname@example.org.
- YOUR USE OF THE SERVICES
3.1 User Accounts. In order to use most aspects of the Platform, you must register for and maintain an active Platform account (“Account“). Account registration requires you to submit to INSTIRE certain personal information, such as your name, company name, address, picture, and phone number, as well as valid Payment Method (defined below). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Platform or INSTIRE’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by INSTIRE in writing, you may only possess one Account.
3.2 User Requirements and Conduct. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Platform, and you may only use the Platform for lawful purposes. You will not in your use of the Platform cause nuisance, annoyance, inconvenience, or property damage, whether to the Job Applicants or any other party. You may not solicit any Job Applicant for employment or contracting purposes outside of the jobs/shifts as facilitated through the INSTIRE Platform without prior written permission from us. In certain instances, you may be asked to provide proof of identity to access or use the Platform, and you agree that you may be denied access to or use of the Platform if you refuse to provide proof of identity.
3.3 Text Messaging/Push Notifications. By creating an Account, you agree that the Platform may send you informational text (SMS) messages and/or Push Notifications as part of the normal business operation of your use of the Platform and that use of SMS is necessary to utilize the Platform. We may send you SMS messages, for example, to communicate with you regarding the INSTIREPlatform (such as reminders to update your profile), to provide status updates, and to provide alerts regarding your requested jobs/shifts (such as when a Job Applicant applies for a job/shift you posted or when a hired Job Applicant cancels a job/shift). When you create an account, we will send you an SMS message to confirm your sign-up.
In the event you no longer want to receive any Push Notifications from INSTIRE, you can cancel the notifications service on your smartphone’s settings.
In the event you no longer want to receive any text messages from INSTIRE, you can cancel the SMS service at any time by e-mailing us at email@example.com.
Message and data rates may apply for any messages sent to you from us and to us from you. Message frequency depends on your use of the Platform. If you have any questions about your text plan or data plan, please contact your wireless provider. For all other questions about the SMS services, you can send an email to firstname.lastname@example.org.
3.4 Network Access and Devices. You are responsible for obtaining the data network access necessary to use the Platform. Your mobile network’s data and messaging rates and fees may apply if you access or use the Platform from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Platform and any updates thereto. INSTIRE does not guarantee that the Platform, or any portion thereof, will function on any particular hardware or devices. In addition, the Platform may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. “Device” means a mobile device, smartphone, smart watch, tablet, computer owned or controlled by you on which the INSTIRE Platform has been installed as authorized by INSTIRE solely for the purpose of providing jobs/shifts, or on which you receive SMS text messaging/push notifications in connection with providing jobs/shifts.
- YOUR RELATIONSHIP WITH JOB APPLICANTS
You acknowledge and agree that your arranging and obtaining of jobs/shifts from a Job Applicant creates a direct business relationship between you and that Job Applicant, and your interactions and dealings with such Job Applicant are solely between you and such Job Applicant. Job Applicants are independent contractors and are not employees of INSTIRE. INSTIRE is not responsible or liable for the actions or inactions of any Job Applicant in relation to the jobs/shifts. You are responsible for making sure that Job Applicant has any and all appropriate documentation for eligibility to work in the United States. INSTIRE is not responsible for reviewing or making sure JOB APPLICANT has all such necessary documentation and shall be released of any claims related to such documentation. You shall have the sole responsibility for any obligations or liabilities to Job Applicant or other third parties that arise from your arranging and obtaining such jobs/shifts. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a Job Applicant or other third party.
- PAYMENT; RATINGS
5.1 Charges. You understand that use of the Platform is currently free of charge, but INSTIRE reserves the right, at any time, to make changes to its payment policy.
5.2 Payment to Job Applicant. After you have received jobs/shifts obtained through your use of the Platform, you are responsible for paying Job Applicant directly. INSTIRE shall have no payment obligations toward the Job Applicant, and Job Provider agrees to indemnify and hold harmless INSTIRE from any and all claims related to payments to Job Applicant.
5.3 Ratings. Ratings are provided for informational purposes only. Job Provider understands that it is responsible for the accuracy of the rating it posts via the Platform. INSTIRE shall have no obligations or responsibilities for the accuracy of such rating.
Job Providers understand and agree that after jobs/shifts are completed, Job Applicants will be prompted by the Platform to provide a rating of such job/shift and Job Provider. Job Applicants may also provide comments and/or feedback about such job/shift and Job Provider.
Job Providers understand and agree that after jobs/shifts are completed, they will be prompted by the Platform to provide a rating of Job Applicant who performed such job/shift. Job Providers may also provide comments and/or feedback about Job Applicant who performed such job/shift.
In order to continue to use the Platform, Job Providers acknowledge that they must maintain an average rating by Job Applicants that exceeds the minimum average acceptable rating established by INSTIRE, which is a minimum of two (2) stars, and may be updated from time to time by INSTIRE, in its sole discretion. In the event Job Provider’s average rating falls below the Minimum Average Rating, Job Provider may be provided a limited period of time to raise his or her average rating above the Minimum Average Rating. Job Provider agrees that if it does not increase his or her average rating above the Minimum Average Rating within the time period allowed (if any), INSTIRE may deactivate such Job Provider’s access to the Platform.
INSTIRE reserves the right to use, share, and display your and Job Applicant ratings and comments in any manner in connection with INSTIRE’s business without attribution to you or your approval. You acknowledge and agree that INSTIRE is a distributor (without any obligation to verify) and not a publisher of your and Job Applicant ratings and comments, provided that INSTIRE reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws, or INSTIRE’s content policies.
- DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
6.1 DISCLAIMER. YOUR USE OF THE PLATFORM, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN THE PLATFORM, ANY PLATFORM-RELATED SERVICE OR SOFTWARE THAT IS PROVIDED TO YOU, IS AT YOUR SOLE RISK. THE PLATFORM, INCLUDING ANY CONTENT, SOFTWARE OR INFORMATION CONTAINED WITHIN THE PLATFORM AND ANY PLATFORM-RELATED SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR SUPPLIERS, LICENSORS, AND OTHER RELATED PARTIES, AND THEIR RESPECTIVE OFFICERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES, EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU. IN ADDITION, INSTIRE (ON BEHALF OF ITSELF, ITS LICENSORS, AND THE JOB APPLICANTS) MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING: (i) THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE PLATFORM OR ANY JOBS/SHIFTS OR GOODS REQUESTED THROUGH THE USE OF THE PLATFORM; (ii) THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; (iii) MATERIALS, SOFTWARE OR CONTENT AVAILABLE FROM THE PLATFORM ARE FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; (iv) THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF JOB APPLICANTS OR THE JOBS/SHIFTS THEY PROVIDE; AND (v) THAT ANY ERRORS IN OUR PLATFORM WILL BE CORRECTED. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM, AND ANY JOBS/SHIFTS REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
ANY MATERIAL DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR BUSINESS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR THE USE OF THE PLATFORM.
6.2 NO SERVICE GUARANTEE. INSTIRE AND ITS LICENSORS DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE INSTIRE PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND INSTIRE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.
6.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL INSTIRE OR INSTIRE’S EMPLOYEES, OFFICERS, REPRESENTATIVES, SUPPLIERS, LICENSORS, JOB APPLICANTS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (i) THE USE OR INABILITY TO USE THE PLATFORM OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE PLATFORM; (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE PLATFORM OR THE CONTENT, MATERIALS, SOFTWARE, INFORMATION, PRODUCTS, OR SERVICES ON OR AVAILABLE THROUGH THE PLATFORM; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; (vi) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; OR (vii) ANY OTHER MATTER RELATING TO THE PLATFORM, EVEN IF WE OR OUR AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PLATFORM OR PLATFORM-RELATED SERVICES IS TO STOP USING THE PLATFORM AND/OR THOSE SERVICES. WE ARE NOT RESPONSIBLE OR LIABLE FOR YOUR ILLEGAL, UNAUTHORIZED, OR IMPROPER USE OF INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED USING THE PLATFORM. THIS LIMITATION OF LIABILITY INCLUDES ANY OF THE FOREGOING TYPES OF DAMAGES ARISING FROM YOUR ACCESS OR USE OF THE PLATFORM OR ANY JOBS/SHIFTS PROVIDED BY JOB APPLICANTS. INSTIRE’S PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE JOBS/SHIFTS WITH JOB APPLICANTS, BUT YOU AGREE THAT INSTIRE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY JOBS/SHIFTS PROVIDED TO YOU BY JOB APPLICANTS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF US UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED TWO HUNDRED U.S. DOLLARS ($200.00).
6.4 Indemnity. You agree to indemnify, defend, and hold us harmless, as well as our officers, directors, agents, employees, underlying content and/or service providers, licensors, and suppliers, and each of their respective subsidiaries and affiliates from and against any claim, proceeding, loss, expense, damage and cost, including reasonable attorneys’ fees, due to or arising out of any material or any other content or information that you submit, post or upload to or transmit through the Platform, your use of the Platform, your connection to the Platform, your violation of these Terms, your use of the Platform or jobs/shifts obtained through your use of the Platform, or your violation of any law or the rights of any third party, including Job Applicants. These obligations will survive any termination of your relationship with us or your use of the Platform. We reserve the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
- APPLE APP STORE TERMS
These Terms apply to your use of the Platform, including the iPhone, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
7.1 Both you and INSTIRE acknowledge that these Terms are between you and INSTIRE only, and not with Apple, and that Apple is not responsible for the Application or any content posted to or made available via the Application;
7.2 The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the INSTIRE Platform for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they apply to the Platform;
7.3 You will only use the Application in connection with an Apple device that you own or control;
7.4 You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
7.5 In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
7.6 You acknowledge and agree that INSTIRE, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
7.7 You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, INSTIRE, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
7.8 You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
7.9 Both you and INSTIRE acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
7.10 Both you and INSTIRE acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
- ARBITRATION AGREEMENT
8.1 Arbitration. You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Platform (collectively, “Disputes“) will be settled by final and binding arbitration between you and INSTIRE. This Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). Notwithstanding anything else contained herein, each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and INSTIRE are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and INSTIRE otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Arbitration Agreement” section will be deemed void. Except as provided in the preceding sentence, this “Arbitration Agreement” section will survive any termination of these Terms.
8.2 Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be a licensed attorney or retired judge with experience in the law underlying the dispute.
8.3 Arbitration Process. If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought.
8.4 Arbitration Location and Procedure. The arbitration shall take place in Miami-Dade County, Florida. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and INSTIRE submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
8.5 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
8.6 Fees. The party initiating the arbitration must bear the costs and fees related thereto.
8.7 Severability and Survival. This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Agreement. In the event any portion of this Arbitration Agreement is deemed unenforceable, the remainder of this Arbitration Agreement will be enforceable. Therefore, terms of this Arbitration Agreement shall be severed, to the smallest extent possible, if required to uphold the enforceability of this Arbitration Agreement. The Arbitration Agreement is a contractual agreement to mutually arbitrate claims.
- OTHER PROVISIONS
9.1 Choice of Law. These Terms are governed by and construed in accordance with the laws of the State of Florida, U.S.A., without giving effect to any conflict of law principles. For all claims not subject to the Arbitration Agreement in Section 8, you agree that they will be brought exclusively in the federal or state courts of competent jurisdiction sitting in Miami-Dade County, Florida, and you expressly agree that such courts shall have jurisdiction over you. The prevailing party in any dispute arising hereunder or from your use of the Platform shall be entitled to an award of its reasonable attorney’s fees and legal costs against the non-prevailing party.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, YOU AND INSTIRE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
9.2 Notice. INSTIRE may give notice by means of a general notice on the Platform, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to INSTIRE, with such notice deemed given when received by INSTIRE, at any time by first class mail, pre-paid post, or electronic mail to INSTIRE, 2665 S Bayshore Dr, #430, Miami, FL 33133 or email@example.com.
9.3 General. You may not assign these Terms without INSTIRE’s prior written approval. INSTIRE may transfer, assign, or delegate these Terms and its rights and obligations without your consent. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, INSTIRE or any Job Applicant as a result of these Terms or use of the Platform. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. INSTIRE’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by INSTIRE in writing.
9.4 Contact Information. Questions about these Terms should be sent to us at firstname.lastname@example.org.