Chamba LLC Terms of Service
Last updated: April 23, 2020
These Terms of Service constitute a legally binding agreement between you and Chamba, LLC (“Chamba”) governing your use of the Chamba Platform. Chamba’s website www.lachamba.app (the “Site”), mobile applications (the “Apps”), and related services, information and communications are collectively referred to as the “Chamba Platform.”
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND ABIDE BY ITS TERMS, YOU MAY NOT USE OR ACCESS THE CHAMBA PLATFORM.
PLEASE NOTE: SECTION 28, WHICH CONTAINS JURISDICTION-SPECIFIC PROVISIONS, SPECIFIES HOW USERS AND CHAMBA RESOLVE DISPUTES. FOR U.S. USERS, SECTION 28 CONTAINS AN ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT, WITH LIMITED EXCEPTION, REQUIRES YOU TO SUBMIT DISPUTES AND CLAIMS YOU HAVE AGAINST CHAMBA TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE READ IT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR USING THE CHAMBA PLATFORM, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
A few highlights of these Terms of Service include:
- You must be at least the legally required age in the jurisdiction in which you reside (18 years old for U.S. based users), and otherwise capable of entering into binding contracts, in order to use or access the Chamba Platform (Section 2).
- Your agreement that the technology for the Chamba Platform is provided “as is” and without warranty (Section 17).
- Your agreement that Chamba provides no warranty and has no liability regarding User action on the Chamba Platform or the performance of Chambas (Section 17).
- Your acknowledgment and agreement that Chamba does not supervise, scope, direct, control, or monitor a worker’s work and the Chambas performed (Section 1).
- Your acknowledgement and agreement that Clients are solely responsible for determining if the worker they hire is qualified to perform the Chamba (Sections 1 and 23).
- Your acknowledgement and agreement that workers are independent contractors of Clients and not employees, independent contractors or service providers of Chamba (Section 1).
- Your agreement to hold harmless and indemnify Chamba from claims due to your use or inability to use the Chamba Platform or content submitted from your account to the Chamba Platform (Section 18).
- For U.S. Users, your agreement to arbitrate disputes with Chamba on an individual basis to the fullest extent permitted by applicable law.
1. The Chamba Platform Connects Workers and Clients
The Chamba Platform is a web-based communications platform which enables connections between Clients and Workers. “Clients” are individuals and/or businesses seeking to obtain short-term services (“Chambas”) from Workers and are therefore clients of Workers, and “Workers” are businesses seeking to perform Chambas for Clients. Clients and Workers together are hereinafter referred to as “Users.” If you agree on the terms of a Chamba with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
WORKERS ARE INDEPENDENT BUSINESS OWNERS. WORKERS ARE INDEPENDENT CONTRACTORS OF CLIENTS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF CHAMBA. CHAMBA DOES NOT PERFORM CHAMBAS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM CHAMBAS. BY CONNECTING PEOPLE AND BUSINESSES SEEKING SERVICES WITH SERVICE PROVIDERS, CHAMBA OPERATES AS AN ONLINE MARKETPLACE THAT CONNECTS CLIENTS WITH SERVICE PROVIDERS (WORKERS) WHO WISH TO PERFORM A VARIETY OF CHAMBAS.
USERS HEREBY ACKNOWLEDGE THAT CHAMBA DOES NOT SUPERVISE, SCOPE, DIRECT, CONTROL OR MONITOR A WORKER’S WORK AND EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE CHAMBAS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE.
Any reference on the Chamba Platform to a Worker being licensed or credentialed in some manner, or "badged," “reliable,” “reliability rate,” “elite,” “great value,” "background checked," “vetted” (or similar language) designations indicates only that the Worker has completed a relevant account process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Chamba of such Worker’s skills or qualifications or whether they are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for Clients to evaluate when they make their own decisions about the identity and suitability of Workers whom they contact or interact with via the Chamba Platform.
The Chamba Platform enables connections between Users for the fulfillment of Chambas. Chamba is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Chambas, Workers, or Clients, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings or reviews provided by Users with respect to each other. Chamba makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Chambas requested or services provided by, or the communications of or between, Users identified through the Chamba Platform, whether in public or private, via on- or off-line interactions, or otherwise howsoever.
2. User Background Checks and User Representations and Warranties
User Background Checks
Users may be subject to a review process before they can register for and during their use of the Chamba Platform, which may include but is not limited to: identity verification, right to work checks, and criminal background checks, using third party services as appropriate (“Background Checks”). Although Chamba may perform Background Checks, Chamba cannot confirm that each User is who they claim to be, and Chamba cannot and does not assume any responsibility for the accuracy or reliability of Background Check information.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Chamba will not be liable for any false or misleading statements made by Users of the Chamba Platform.
NEITHER CHAMBA, NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY REFERRED TO AS “AFFILIATES”) IS RESPONSIBLE OR LIABLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE CHAMBA PLATFORM AND, TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE CHAMBA AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE CHAMBA PLATFORM.
User Representations and Warranties
All Users represent and warrant that:
- You are at least of the legally required age in the jurisdiction in which you reside (18 years of age or older for U.S. based users), and are otherwise capable of entering into binding contracts;
- 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;
- You will respect the privacy (including without limitation private, family and home life), property, and data protection rights of Users and will not record (whether video or audio or otherwise) any Chamba or any interaction by or with any User and/or Chamba in connection with the Chamba Platform without the prior written consent of Chamba and/or the relevant User, as applicable;
- You will fulfill the commitments you make to other Users, communicate clearly and promptly through the chat thread, be present and/or available at the time you agree upon with your Worker or Client as the case may be.
- You will act professionally and responsibly in your interactions with other Users;
- You will use your real name or business name and an up-to-date photo on your profile;
- When using or accessing the Chamba Platform, you will act in accordance with all applicable local, state, provincial, national, or international law or custom and in good faith;
- You will not use the Chamba Platform for the purchase or delivery of alcohol, or any other controlled or illegal substances or services.
- 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.
- Other than as fully and promptly disclosed in writing to Chamba, you do not have any motivation, status, or interest that Chamba may reasonably wish to know about in connection with the Chamba Platform, including without limitation, if you are using or will or intend to use the Chamba Platform for any journalistic, academic, investigative, or unlawful purpose.
Workers additionally represent and warrant that:
- When using the Chamba Platform, you are operating as a sole proprietor, partnership, limited liability company, limited liability partnership, corporation or other business entity;
- You are customarily engaged in an independently established business of the same nature as the services performed for Clients through the Chamba Platform, and maintain an independent clientele;
- You have the unrestricted right to work in the jurisdiction in which you will be performing Chambas;
- If the Chamba is performed in a jurisdiction that requires you to have a business license or business tax registration, you have the required business license or business tax registration;
- You are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Chambas; and all insurance required to operate your business and provide your services;
- You will honor your commitments to other Users on the Platform, including by responding to invitations promptly; performing the Chamba(s) as agreed upon with your Client; and providing timely, high-quality services to your Clients;
- You will only offer and provide services for which you have the necessary skills and expertise, and provide those services safely and in accordance with all applicable laws.
3. Contract between Clients and Workers
You acknowledge and agree that a legally binding contract with another User (the “Service Agreement”) is formed when you and that User agree on the terms of a Chamba. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the Chamba Platform, and any other contractual terms accepted by both the Worker and their Client to the extent such terms do not conflict with the terms in this Agreement, including this Section 3, and do not expand Chamba’s obligations or restrict Chamba’s rights under this Agreement. Chamba is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstances, create an employment or other service relationship between Chamba and the Worker, nor will it create an employment relationship between the Client and the Worker. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Chamba. Chamba’s role is to solely enable connections between Clients and Workers via it’s web-based communications platform and app. Chamba disclaims any other agency or authority to act on behalf of the Worker, and assumes no liability or responsibility for any acts or omissions of the Worker, either within or outside of the Chamba Platform.
Where approved in advance by the Client, the Worker is not obligated to personally perform the Chamba. Workers may engage assistants, helpers, subcontractors or other personnel (collectively “Worker Assistants”). For safety reasons, such Worker Assistants shall have been background checked through the Chamba Platform. A Worker’s failure to comply with this provision shall be a violation of these Terms of Service and could lead to removal from the Chamba Platform. The Worker assumes full and sole responsibility for the acts and omissions of such Worker Assistants and is fully responsible for the lawful payment of all compensation, benefits and expenses of Worker Assistants, if any, and for all required and applicable tax withholdings as to such Worker Assistants. Clients are responsible for confirming with their Worker that any Worker Assistants are registered Workers on the Chamba Platform and Clients understand that they are entering into separate Service Agreements with the Worker and each Worker Assistant.
While using the Chamba Platform, Clients, in their sole discretion, determine whether they will be present or not when a Chamba is performed. Clients who elect not to be present when a Chamba is performed agree that if someone other than them books the Chamba on their behalf or is present when the Chamba is performed, they are appointing that person as their agent (“Client’s Agent”) and the Worker may take and follow direction from the Client’s Agent as if such direction was given from the Client him or herself. If you are a Client’s Agent and accessing and using the Chamba Platform on behalf of a Client, you represent that you have the authority to act as their agent and to bind that person as the principal to all provisions of the Terms of Service. Client assumes full and sole responsibility for the acts and omissions of Client’s Agents. Client’s Agents are deemed third parties for the purposes of the Satisfactions Pledge and are thereby excluded from it.
4. Billing and Payment
Users of the Chamba Platform contract for Chambas directly with other Users. Chamba will not be a party to any contracts for Chambas or services. Chamba is not obligated to compensate Worker for Client’s failure to pay for services. Workers are responsible for accurately invoicing their Clients within 24 hours of the work being performed, even if the Chamba is not completed in its entirety or is designated as “ongoing”. Clients will be responsible for paying the invoice(s) for each Chamba (the “Invoice(s)”), which will include (i) the pricing terms of the Chamba provided by the Worker and agreed upon by the parties (“Chamba Payment”), (ii) any out of pocket expenses agreed upon by the parties and submitted by the Worker in connection with the Chamba.
Users of the Chamba Platform will be liable for any taxes (including VAT, if applicable in the country where the Chamba is performed) required to be paid on the Chambas provided under the Agreement.
5. Contests, Gift Cards, and Promotional Codes
Chamba may from time to time provide certain promotional opportunities and contests to Users. All such promotions will be run at the sole discretion of Chamba, and can be implemented, modified, or removed at any time by Chamba without advance notification. The liability of Chamba and Affiliates, as well as any of Chamba’s corporate partners pursuant to such promotional opportunities and contests, shall be subject to the limitations set forth in Section 17 of these Terms of Service.
Chamba gift cards (“Gift Cards”) and promotional codes (“Promo Codes”) may be available and can be used to pay Chamba Payments and Chamba service charge and platform fee in part or in full, but may not be used to pay for reimbursement of out of pocket expenses or tips or gratuity associated with a Chamba provided through the Chamba Platform.
(a) Promo Codes
Promo Codes are an offer by Chamba to reduce the amount a Client has to pay in relation to a Chamba Payment, service charge, and/or platform fee. Promo Codes will not affect the amount of the Chamba Payment a Worker ultimately receives. The use or application of any Promo Code is solely intended as a promotional initiative and does not in any way create a relationship or engagement between Chamba or the Worker or Client, or constitute wages, fees or other amounts paid to the Worker by Chamba. You agree that you will use Promo Codes in accordance with the terms and conditions governing the Promo Code. A new user Promo Code may only be used once by any User, regardless of the email address used during registration. Chamba reserves the right to withhold or deduct credits or other features or benefits obtained through the use of a Promo Code by you or any other User in the event that the use or redemption of a Promo Code was in error, fraudulent, illegal, or otherwise in violation of the applicable Promo Code terms and conditions or this Agreement.
(b) Gift Cards
Gift cards can only be used in connection with Chambas performed on the Chamba Platform, are not replaceable if lost or stolen and have no expiration date. Gift cards have no cash value and cannot be exchanged for cash except as required by law. Gift Cards must be entered directly into the Client account; they may not be directly accepted by Workers as a payment method.
A Gift Card cannot be combined with any other Gift Cards, gift certificates or Promo Codes. No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Card. You cannot “reload” (or add value/balance) to your Gift Card at this time. If a Gift Card holder’s purchase exceeds the amount of that Gift Card’s balance, the Gift Card holder must pay the difference by another means. Unused Gift Card balances are not transferable. Chamba reserves the right to correct the balance of a Gift Card if Chamba believes that a billing error has occurred. Chamba reserves the right to limit quantities of Gift Cards purchased by any person or entity, and to cancel a Gift Card if it believes that the Gift Card was obtained through fraudulent or unauthorized means. Gift Cards and their use are subject to this Agreement, and use of a Gift Card constitutes acceptance thereof.
You agree to comply with all Gift Card terms and conditions.
6. Public Areas; Acceptable Use
The Chamba Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, Chamba postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Chamba Platform, you should not share your personal contact information with other Users.
Without limitation, the Chamba Platform may not be used for any of the following purposes:
- To defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and Chamba staff;
- To publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful language, material or information;
- To upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or Chamba;
- To upload files or scripts such as Trojan horses, corrupt files, SQL injections, worms, timebombs, cancelbots or any other files or software that may damage Chamba or its Users’ computers;
- To advertise or offer to sell any goods or services for any commercial purpose through the Chamba Platform which are not relevant to the Chamba services;
- To conduct or forward surveys, contests, pyramid schemes, or chain letters;
- To impersonate another person or a User or allow any other person or entity to use your user profile to post or view comments;
While using the Chamba Platform, you may not:
- Use the Chamba Platform for any unauthorized or illegal purpose, including but not limited to posting or performing a Chamba in violation of local, state, provincial, national, or international law;
- Post or upload any content which you have not obtained the necessary rights and permissions to use accordingly;
- Post the same Chamba repeatedly (“Spamming”);
- Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the Chamba Platform;
- Restrict or inhibit any other User from using and enjoying the Public Areas;
- Imply or state that any statements you make (whether on or off the Chamba Platform) are endorsed by Chamba, without the prior written consent of Chamba;
- Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the Chamba Platform, or the electronic addresses or personal information of others, in any manner;
- Frame or utilize framing techniques to enclose the Chamba Platform or any portion thereof;
- Hack or interfere with the Chamba Platform, its servers or any connected networks;
- Adapt, alter, license, sublicense or translate the Chamba Platform for your own personal or commercial use;
- Remove, alter, or misuse, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Chamba and Affiliates;
- Upload content to the Chamba Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
- Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
- Use the Chamba Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Chamba Platform as set forth herein;
- Use the Chamba Platform to collect usernames, email addresses, or other personal information of Users by electronic or other means;
- Use the Chamba Platform or the Chamba services in violation of this Agreement;
- Use the Chamba Platform in a manner that is false or misleading (directly or by omission or failure to update information), or for the purpose of accessing or otherwise obtaining Chamba’s trade secret information for public disclosure or other purposes;
- Attempt to circumvent the payments system or service charge or platform fee in any way including, but not limited to, making or processing payments outside of the Chamba Platform, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
- Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number;
- Cause any third party to engage in the restricted activities above; or
- Use tools with the goal of masking your IP address (like the TOR network).
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. Chamba will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
7. Mobile App Updates and Upgrades
8. Deactivation and Suspension
Chamba may suspend your right to use the Chamba Platform pending its investigation of a potential breach by you of this Agreement. Chamba may deactivate your account or limit your use of the Chamba Platform upon its determination that you breached a provision of this Agreement (a “User Breach”). Chamba will provide you with written notice of its determination. If you wish to appeal this determination, please contact us within 14 days of receipt of such notice with the grounds for your appeal.
If Chamba suspends or deactivates your account or limits your use of the Chamba Platform pursuant to this Section 8, you are thereafter prohibited from registering and creating a new account under your name or business 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.
Even after your right to use the Chamba Platform is suspended, terminated or limited, this Agreement will remain enforceable against you. Chamba reserves the right to take appropriate legal action pursuant to the Agreement.
Chamba reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Chamba Platform at its sole discretion. Chamba will provide you with notice of any such modification or discontinuation as required by law. To the extent permitted by law, Chamba shall not be liable to you for any modification or discontinuance of all or any portion of the Chamba Platform. Chamba has the right to restrict anyone from completing registration as a Worker if such person may threaten the safety and integrity of the Chamba Platform, or if such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Chamba Platform and deactivating your account. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement or your use of the Chamba Platform.
9. Account, Password, Security, and Telephone Communications
You must register with Chamba and create an account to use the Chamba Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Chamba for accessing the Chamba Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. Chamba has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to notify Chamba immediately.
You acknowledge that telephone calls to or from Chamba, together with its agents and Affiliates, may be monitored and recorded for the purposes of quality control and training.
You verify that any contact information provided to Chamba, our agents and affiliates, and Users, including, but not limited to, your name, business name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or deactivate your account. Should any of your contact information change, you agree to immediately notify Chamba before the change goes into effect by visiting help.tr.co. If the change regards ownership of your telephone numbers, you may notify Chamba by texting STOP to any text message sent to the retiring phone number.
10. User Generated Content
“User Generated Content” is defined as any information and materials you provide to Chamba, its corporate partners, or other Users in connection with your registration for and use of the Chamba Platform and participation in Chamba promotional campaigns, including without limitation the information and materials posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Chamba is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that Chamba has no obligation to monitor or review User Generated Content, but reserves the right to limit or remove User Generated Content if it is not compliant with the terms of this Agreement.
You hereby represent and warrant to Chamba that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the transfer or sale of illegal, counterfeit or stolen items; (c) will not infringe on any third party’s privacy, or copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or personality (to the extent recognized by law in the country where the Chamba is performed); (d) will not violate any law, statute, ordinance, code, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, incitement of hatred or false or misleading advertising, anti-spam or privacy); (e) will not be defamatory, libelous, malicious, threatening, or harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, scripts such as Trojan Horses, SQL injections, worms, time bombs, corrupt files, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not claim or suggest in any way that you are employed or directly engaged by or affiliated with Chamba or otherwise purport to act as a representative or agent of Chamba; and (i) will not create liability for Chamba or cause Chamba to lose (in whole or in part) the services of its Internet Service Providers (ISPs) or other partners or suppliers.
The Chamba Platform hosts User Generated Content relating to reviews and ratings of specific Workers (“Feedback”). Feedback is such User’s opinion and not the opinion of Chamba, and has not been verified or approved by Chamba. You agree that Chamba is not responsible or liable for any Feedback or other User Generated Content. Chamba encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Chamba is not obligated to investigate any remarks posted by Users for accuracy or reliability or to consider any statements or materials posted or submitted by Users about any Feedback but may do so at its discretion. You agree that Feedback enables Users to post and other Users to read about Users’ expression of their experiences and that you will not complain or take any action merely because you happen to disagree with such feedback. You may request removal of a review that violates this Agreement. Each Client should undertake their own research to be satisfied that a specific Worker has the right qualifications for a Chamba.
Chamba respects the personal and other rights of others, and expects Users to do the same. Chamba is entitled to identify a User to third parties who claim that their rights have been infringed by User Generated Content submitted by that User, so that they may attempt to resolve the claim directly.
If a User believes, in good faith, that any User Generated Content provided on or in connection with the Chamba Platform is objectionable or infringes any of its rights or the rights of others (e.g. counterfeiting, insult, invasion of privacy), the User is encouraged to notify Chamba. If a User discovers that User Generated Content promotes crimes against humanity, incites hatred and/or violence, or concerns child pornography, the User must notify Chamba. Such notification can be made to us.
11. Links to Third-Party Websites
The Chamba Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Chamba or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Chamba Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Chamba does not control any such websites, and is not responsible for their availability, accuracy, content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Chamba is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Chamba has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Chamba Platform at its sole discretion.
The use of any website controlled, owned or operated by a third party is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Chamba expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Chamba Platform. You hereby agree to hold Chamba harmless from any liability that may result from the use of links that may appear on the Chamba Platform.
As part of the functionality of the Chamba Platform, you may link your account with online accounts you may have with third party social networking service providers (such as Facebook or Google) (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Chamba Platform; or (ii) allowing Chamba to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Chamba and/or grant Chamba access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Chamba to pay any fees or making Chamba subject to any usage limitations imposed by such third-party service providers. By granting Chamba access to any Third-Party Accounts, you understand that (i) Chamba may access, make available and store (if applicable) your public profile that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the Chamba Platform via your Chamba account, including without limitation any friend lists, and (ii) Chamba may submit to and receive additional information from your Third-Party Account to the extent specified when you link your account with the Third-Party Account. Unless otherwise stated in these Terms of Service, all SNS Content shall constitute User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information or personal data that you post to your Third-Party Accounts may be available on and through your account on the Chamba Platform. Please note that if a Third-Party Account or associated service becomes unavailable or Chamba’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Chamba Platform. You will have the ability to disable the connection between your account on the Chamba Platform and your Third-Party Accounts at any time, by revoking permissions in the account settings of your Third-Party Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Chamba makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Chamba is not responsible for any SNS Content.
12. Chamba Operates as an Online Marketplace
Chamba operates as an online marketplace that connects Clients with service providers (Workers) who wish to perform a variety of Chambas. Chamba does not perform Chambas and does not employ people to perform Chambas. Workers operate as independent business owners and are customarily engaged in an independently established business of the same nature as that involved in the services performed for Clients through the Chamba Platform. Chamba does not control or direct the Workers’ performance of their services or set their work locations or work hours. Workers provide services under their own name or business name, and not under Chamba’s name. Workers provide their own tools and supplies to perform their services; Chamba does not provide the tools or supplies. Workers are free to maintain a clientele without any restrictions from Chamba and are free to offer and provide their services elsewhere, including through competing platforms. Chamba does not set Workers’ hours or terms of work. Workers are free to accept or reject Clients and contracts. Workers are not penalized for rejecting Clients or contracts, though if Workers accept a Client or contract through the Chamba Platform, they are expected to fulfill their contractual obligations. Workers set their own rates for services performed in the Chamba general marketplace, without deduction by Chamba.
The Chamba Platform is not an employment agency service or business and Chamba is not an employer of any User. Workers acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Agreements and performing Chambas and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
13. Chamba Satisfaction Pledge
The Chamba Satisfaction Pledge applicable to the country where the Chamba is performed is part of this Agreement and incorporated by reference. Workers determine which categories they are qualified to Chamba in, and scope the Chamba directly with their Client. Chamba does not oversee, monitor or direct how a Worker performs a Chamba, does not monitor Chambas or chat threads between Users, and does not otherwise assume responsibility for the actions of Users. Clients are advised to confirm with their Worker that s/he is qualified to perform the Chamba prior to the Chamba taking place. Chamba is not liable for the acts or omissions of Users, nor does Chamba provide insurance against any losses sustained by Users. That said, Chamba wants Users to be happy about their experience using the Chamba Platform and the Satisfaction Pledge is in place to encourage continued use of the Chamba Platform.
14. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, typefaces and other content, including Chamba designs, trademarks, and logos (collectively “Proprietary Material”) that Users see or read through the Chamba Platform is owned by Chamba, excluding User Generated Content, which Users hereby grant Chamba a license to use as set forth above in Article 10. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Chamba owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials. The Proprietary Material is protected by domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Chamba Platform without Chamba’s express prior written consent and, if applicable, the consent of the holder of the rights to the User Generated Content. Any use of such Proprietary Material other than as permitted herein is expressly prohibited.
The service marks and trademarks of Chamba, including without limitation Chamba, Chamba for Good, and associated logos, are service marks owned by Chamba. Any other trademarks, service marks, logos and/or trade names appearing via the Chamba Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
15. Copyright Complaints and Copyright Agent
Chamba respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Chamba Platform infringe upon your copyright or other intellectual property right, please send the following information to Chamba’s
A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Chamba Platform where the material you claim is infringed is visible. Include enough information to allow Chamba to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your name, address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- Your electronic or physical signature as the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
16. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Chamba and agree that you will not, for the lifetime of your account on Chamba plus 10 years thereafter, disclose, transfer, or use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than use of the Chamba Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall promptly notify Chamba in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall return all originals and any copies of any and all materials containing Confidential Information to Chamba promptly upon deactivation of your User account or termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Chamba’s trade secrets, confidential and proprietary information, and all other information and data of Chamba that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other Proprietary Materials and confidential information relating to Chamba or Chamba’s business, operations or properties, including information about Chamba’s staff, Users or partners, or other business information disclosed or obtained directly or indirectly in writing, orally or by drawings or observation.
17. Disclaimer of Warranties
(a) Use Of The Chamba Platform Is Entirely At Your Own Risk
THE TECHNOLOGY OF THE CHAMBA PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, AND NON-INFRINGEMENT. CHAMBA MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE CHAMBA PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE CHAMBA PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE CHAMBA PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
Chamba does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third-party through the Chamba Platform or any hyperlinked website or featured in any banner or other advertising, and Chamba will not be a party to or in any way be responsible for monitoring any transaction between you and other Users, or you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, Chamba and Affiliates do not warrant that access to the Chamba Platform will be uninterrupted or that the Chamba Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Chamba Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Chamba, service, information or materials provided through or in connection with the use of the Chamba Platform. Chamba and Affiliates are not responsible for the conduct, whether online or offline, of any User. Chamba and Affiliates do not warrant that the Chamba Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Chamba and Affiliates will implement appropriate technical and organizational measures to ensure a level of security adapted to the risk for any personal information supplied by you.
Notwithstanding any feature a Client may use to expedite Chamba selection, each Client is responsible for determining the Chamba and selecting their Worker and Chamba does not warrant any goods or services purchased by a Client and does not recommend any particular Worker. Chamba does not provide any warranties or guarantees regarding any Worker’s ability, professional accreditation, registration or license.
(b) No Liability
You acknowledge and agree that Chamba is only willing to provide the Chamba Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Chamba and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the Chamba Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by Chamba and Affiliates, and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL CHAMBA AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR, AND YOU HEREBY RELEASE CHAMBA AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY CHAMBA, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR ATTORNEYS FEES AND COSTS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE CHAMBA PLATFORM OR THE CHAMBA SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN SUCH CASES THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
CHAMBA AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS CHAMBA PLATFORM. CHAMBA AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE CHAMBA PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT CHAMBA AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO CHAMBA (IF YOU ARE A CLIENT) OR TOTAL CHAMBA PAYMENTS PAID TO YOU BY CLIENTS (IF YOU ARE A WORKER), DURING THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless Chamba and Affiliates from and against any and all Liabilities incurred in connection with (i) your use or inability to use, or your participation on, the Chamba Platform; (ii) your participation in Chambas, or your ability or inability to perform or obtain the performance of Chambas or to receive payment therefore; (iii) your breach or violation of this Agreement; (iv) your violation of any law, or the rights of any User or third party; (v) your failure to abide by your representations and warranties in Section 2; (vi) any content submitted by you or using your account to the Chamba Platform, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful; and (vii) if you are a Client, the acts or omissions of any Client’s Agents. Chamba reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Chamba.
19. Dispute Resolution
To expedite resolution and reduce the cost of any dispute, controversy or claim related to, arising from or regarding your use of the Chamba Platform, your relationship with Chamba, Chambas, or this Agreement (including previous versions), (“Dispute”), you and Chamba agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least 30 days before initiating any out of court settlement, arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is the one associated with your account, with an email copy to the email address you have provided to Chamba.
20. App Store Sourced Apps
The following applies to any App accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"):
You acknowledge and agree that (i) the Agreement is entered into between you and Chamba only, and Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) Chamba, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Chamba and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Chamba, subject at all times to warranty limitations and exclusions set forth in this Agreement.
You and Chamba acknowledge that, as between Chamba and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, 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.
You and Chamba acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Chamba and Apple, Chamba (and not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, though only to the extent required by this Agreement.
You and Chamba acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, 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 as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
21. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
22. General Provisions
Failure by Chamba to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Chamba with respect to its subject matter, and supersedes and governs any and all prior agreements or communications except as otherwise specified in the Arbitration Agreement in Section 28A. However, this Agreement does not supersede other agreements about other subject matter that you may have with Chamba, such as the IKEA Assembly Category Terms and Conditions. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” provision in the section applicable to U.S. Residents in Section 28A below, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. You hereby acknowledge and agree that 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. Upon the effective date of the assignment of the Agreement (a) Chamba shall be relieved of all rights, obligations and/or liabilities to you arising in respect of events postdating the effective date of the assignment and, (b) the assignee entity shall replace Chamba for the performance of this Agreement. This Agreement may not be assigned or transferred by you without our prior written approval. Any assignment in violation of this Section 22 shall be null and void. This Agreement will inure to the benefit of Chamba, its successors and assigns.
Workers alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Chambas. Indeed, certain types of Chambas and services may be prohibited altogether, and it is the responsibility of Workers to avoid such prohibited Chambas and services. Penalties may include fines or other law enforcement. If you have questions about how national/ state/ provincial/ territorial and local laws apply to your Chambas and services on the Chamba Platform, you should first seek appropriate legal guidance.
Because Chamba does not supervise, scope, direct, control, or monitor a Worker’s work or performance of Chambas, Clients must determine for themselves whether a Worker is qualified to perform the specific Chamba at hand. Clients may wish to consult their national/state/provincial/territorial or local requirements to determine whether certain Chambas are required to be performed by a licensed or otherwise registered professional. Clients may also wish to discuss with their Worker any specific hazards, obstacles, or impediments in the Chamba location (both visible and concealed) that may impact the performance of the Chamba.
24. Changes to this Agreement and the Chamba Platform
25. No Rights of Third Parties
The provisions of this Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and they will not be construed as conferring any rights to any third party (including any third party beneficiary rights except as set forth in Section 20) or to give any person or entity other than the User any interest, remedy, claim, liability, reimbursement, claim of action or any other claim of action with respect to or in connection with any agreement or provision contained herein or contemplated hereby. None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement, provided, however, that a Client’s Agent may act in the name of and on behalf of his/her Client.
26. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically, including without limitation by email or by posting Notices on the Sites. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all Notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day it is shown as delivered by the overnight delivery service’s tracking information, if sent for next day delivery by a recognized overnight delivery service.
27. Consent to Electronic Signatures
By using the Chamba Platform, you agree to transact electronically through the Chamba Platform. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
28. Jurisdiction-specific Provisions, including Dispute Resolution
A. Residents of the United States of America.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND CHAMBA CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE CHAMBA PLATFORM.
Telephone Communications and Agreement to be Contacted
(a) Your Consent to Receive Automated Calls/Texts.
You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive calls or text messages (which may include prerecorded voice messages, and/or autodialed calls) from Chamba and Affiliates, or from independent contractors (including Workers) related to promotions, your account, registration, orientation, upcoming or scheduled Chambas, product alterations, changes and updates, service outages, reminders about incomplete or upcoming Chambas, follow ups to any push notifications delivered through our mobile application, any transaction with Chamba, and/or your relationship with Chamba. You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that Chamba may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means. You agree to receive automated calls and text messages from Chamba and Affiliates, or from independent contractors (including Workers) even if you cancel your account or terminate your relationship with Chamba, except if you opt-out (see below). You understand that you do not have to agree to receive automated promotional calls/texts as a condition of purchasing any goods or services. To opt-out, please see the Opt-Out Instructions below.
(b) Opt-Out Instructions.
It is your sole responsibility to notify Chamba if you no longer want to receive automated calls or text messages. You waive any rights to bring claims for unauthorized or undesired calls or text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request. Please note that if you opt out of automated calls or text messages, we reserve the right to make non-automated calls to you.
(c) Fees and Charges.
There is no fee to receive automated telephone calls or text messages from Chamba, our agents, affiliates, and independent contractors (including Workers). However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Chamba and Affiliates, and independent contractors (including Workers) are not responsible for such charges.
(d) Unauthorized Use of Your Telephone Device.
You must notify Chamba immediately of any breach of security or unauthorized use of your telephone device. Although Chamba and Affiliates, and independent contractors (including Workers) will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.
(e) Your Indemnification to Chamba.
You agree to indemnify Chamba and Affiliates, and independent contractors (including Workers) for any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify Chamba of any changes in your contact information, including telephone number. You agree to indemnify, defend and hold Chamba and Affiliates harmless from and against any and all such claims, losses, liability, costs and expenses (including reasonable attorneys’ fees). Chamba shall have the exclusive right to choose counsel, at your expense, to defend any such claims.
You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service provider, mobile service, and other services needed to receive calls and text messages. Text messaging may only be available with select carriers with compatible handsets. Your obligations under this Section 28A will survive termination of these Terms of Service.
Worker Classification and Withholdings
Chamba does not employ Workers. Chamba is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with a User’s use of the Chamba Platform. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Media and User Generated Content
To the extent permitted by law, you hereby grant Chamba a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully-paid, unrestricted, sublicensable (through multiple tiers), transferable right to exercise all copyrights, publicity rights, and any other rights you have in (1) your User Generated Content and (2) any videotape, film, recording, photograph, voice, or any instrumental, musical, or other sound effects you provide to Chamba (collectively, “Media”) in exchange for use of the Chamba Platform, in any media now known or not currently known in order to market, operate, and improve upon the Chamba Platform, including but not limited to the right to the following:
- Use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Media or User Generated Content;
- Exhibit, distribute, display, transmit, and broadcast on any and all media (including, without limitation, the internet), any Media or User Generated Content (or portion thereof) or any videotape, film, recording, or photograph (or portion thereof) that such User provides to Chamba or that Chamba takes of User, and use, reproduce, modify, or creative derivatives of such User Generated Content or Media, including such User’s picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”) in any format and through any distribution channels;
- Reproduce in any and all media any recordings of such User’s voice, and any related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Chamba Platform or any Chamba promotional campaigns;
- Use, and permit to be used, such User’s Media, Physical Likeness, and Voice in the advertising, marketing, and/or publicizing of the Chamba Platform in any media, in any format and through any distribution channels; and
- Use, and permit to be used, such User’s name and identity in connection with the Chamba Platform or any Chamba promotional campaigns.
Further, you hereby waive any and all moral rights in connection with the Media. Each User warrants and represents that they have the lawful authority to grant the rights set out above, and that such rights do not negatively impact any third party rights.
Each User acknowledges that Chamba shall not owe any financial or other remuneration for using the Media, Physical Likeness, or Voice provided hereunder by such User, either for initial or subsequent transmission or playback.
Each User hereby waives all rights and releases Chamba and Affiliates from, and shall hold harmless against any such parties for, any claim or cause of action, whether now known or unknown, including without limitation, for defamation, malicious falsehood, invasion of right to privacy, data protection, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s identity, Physical Likeness, Media, or Voice in connection with the Chamba Platform.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF COLORADO CIVIL CODE § 1542, WHICH READS AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
If you are not a California resident, you waive your rights under any statute, regulation, or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Further, in consideration of the services provided by Chamba, you hereby release Chamba from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities or other harms resulting from or relating to telephone calls or text messages, including without limitation any claims, causes of action, or lawsuits based on any alleged violations of the law (including, without limitation, the Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, or any similar state and local acts or statutes, and any federal or state tort or consumer protection laws).
Chamba and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
You will promptly disclose to Chamba in writing if you have any potentially relevant criminal convictions (other than minor fixed penalty parking or speeding offenses), that arise during your use of the Chamba Platform.
Dispute Resolution - Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND CHAMBA CAN BRING CLAIMS COVERED BY THIS ARBITRATION AGREEMENT. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND CHAMBA TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND CHAMBA MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL DISPUTES OR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act (“FAA”) and survives the termination of this Agreement and your relationship with Chamba.
To the fullest extent permitted by applicable law, you and Chamba agree to arbitrate any and all disputes and claims (“collectively, “Claim” or “Claims”) relating to, arising from or regarding your use of the Chamba Platform, your relationship with Chamba, Chambas, or this Agreement (including previous versions), including Claims by Chamba, Claims against Chamba and Claims against Chamba’s Affiliates (including its parent company).
To the fullest extent permitted by applicable law, this includes, but is not limited to, claims related to payments, any city, county, state or federal wage and hour law, compensation, meal or rest breaks, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, personal injury, property damage or loss, emotional distress, any promotions or offers made by Chamba; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; claims arising under the Fair Labor Standards Act, Civil Rights Act, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Chamba and covered by the Employee Retirement Income Security Act or funded by insurance), and state or local statutes, if any, addressing the same or similar subject matters; and all other federal, state or local statutory and common law claims.
If there is a dispute about the arbitrability of any claim (including about the formation, scope, applicability, interpretation, validity, and enforceability of this Arbitration Agreement), you and Chamba agree that this threshold dispute shall be resolved by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND CHAMBA ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL DISPUTES AND CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES THAT, BY THE TERMS OF THIS ARBITRATION AGREEMENT, ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(b) Prohibition of Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and Chamba agree that any arbitration will be limited to the Claim between Chamba (and/or, if applicable, its Affiliates) and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND CHAMBA ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and Chamba otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to California Private Attorney General Act Claims, which are addressed separately below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, to the fullest extent allowed by law: (1) you and Chamba agree not to bring a representative action on behalf of others under the California Private Attorneys General Act (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Chamba agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”).
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules and Logistics Governing Arbitration
In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party. The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules. You and Chamba agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within 30 days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, the parties will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If Chamba initiates arbitration under this Arbitration Agreement, Chamba will pay all AAA filing and arbitration fees.
(ii) If a Client or Worker files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD $10,000, Chamba will pay all AAA filing and arbitration fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
(iii) If a Client or Worker files a Claim in accordance with this Arbitration Agreement and the associated claim for damages exceeds USD $10,000, Chamba shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses, and the Client or Worker shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which the Chamba was performed, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), however, then the allocation of fees will be governed by the applicable AAA Rules.
(iv) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(v) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Chamba agree otherwise, any arbitration hearings with a Worker will take place in the county of the Worker’s billing address, and any arbitration hearings with a Client will take place in the county in which the Client received Chamba services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(e) Exceptions to Arbitration
The Arbitration Agreement shall not require arbitration of the following types of claims:
- Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
- Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
- Applications for provisional remedies, preliminary injunctions, and temporary restraining orders relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
- Representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 19(d) is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; and
- Claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or a similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in subsections (b) and (c), in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(g) Opt Out of Arbitration Agreement
For Workers, you may opt out of the requirement to arbitrate if you have not previously agreed to an arbitration provision in Chamba’s Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this version of the arbitration agreement in the manner specified below, but opting out of this arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with Chamba.
Except as specified in this arbitration agreement, if you are a Worker, you may opt out of the Arbitration Agreement by notifying Chamba in writing within 30 days of your agreement to these Terms of Service. To opt out, you must send a signed written notification to Chamba. Attention: Legal, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you wish to opt out of the Arbitration Agreement.
(h) Worker Claims in Pending Class Action
If you are a member of a putative class in a wage and hour class action lawsuit against Chamba that is pending as of the effective date of these Terms of Service (a “Pending Class Action”), then this Arbitration Agreement shall not apply to your claims in that particular class action. Instead, your claims in that Pending Class Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
Except as expressly provided otherwise, this Agreement and your use of the Chamba Platform will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create any substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise.
29. Acknowledgement and Consent