Mechanican Terms of Service
Last updated: October 10, 2018
These Terms of Service constitute a legally binding agreement between you and Mechanican, Inc d/b/a Mechanican (“Company” or “Mechanican”) governing your use of the Mechanican Platform (as defined below), Company’s website (www.mechanican.com or the “Site”) or mobile applications (the “App” or “Apps”). The Mechanican platform and related services provided by Company, the Site, and Apps, including without limitation communications and information (whether in writing, orally, or otherwise howsoever) provided by Company to potential and actual Service Providers and Clients in relation to the services, together are hereinafter collectively referred to as the “Mechanican Platform.”
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND MECHANICAN CAN BE RESOLVED. 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 MECHANICAN PLATFORM.
You must be at least 16 years old and at least the legally required age in the jurisdiction in which you reside, and otherwise capable of entering into binding contracts, in order to use or access the Mechanican Platform. You must be at least 18 years of age to be a Service Provider.
A few highlights of these Terms of Service include:
- Your agreement that the Mechanican Platform is provided “as is” and without warranty (Section 15).
- Your agreement that Company has no liability regarding the Mechanican Platform or the performance of Jobs (Section 15).
- Your acknowledgment and agreement that you, and not Mechanican, scope, supervise, direct, control, and monitor a Service Provider’s work and the Jobs (Section 1).
- Your acknowledgement and agreement that Clients (as defined below) are solely responsible for determining if the Service Provider they hire is qualified to perform the Job at hand and the other obligations of the agreement between the Service Provider and the Client.
- Your consent to release Company from liability based on claims between Users (Section 2) and generally (Section 15).
- Your agreement to indemnify Company from claims due to your use or inability to use the Mechanican Platform or content submitted from your account to the Mechanican Platform (Section 16).
- The Mechanican Platform Connects Service Providers and Clients
The Mechanican Platform is a web-based communications platform which enables connections between Clients and Service Providers. “Clients” are individuals and/or businesses seeking to obtain varying services (“Jobs”) from Service Providers and are therefore clients of Service Providers, and “Service Providers” are individuals and/or businesses seeking to perform Jobs for Clients. Clients and Service Providers together are hereinafter referred to as “Users.” If you agree on the terms of a Job 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.
SERVICE PROVIDERS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES, PARTNERS, AGENTS, JOINT VENTURES, OR FRANCHISEES OF COMPANY. COMPANY DOES NOT PERFORM JOBS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM JOBS. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A SERVICE PROVIDER’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR THE WORK PERFORMED OR THE JOBS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
The Mechanican Platform only enables connections between Users for the fulfillment of Jobs. Company 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 Jobs, Service Providers, Clients, nor of the integrity, responsibility, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings provided by Users with respect to each other. Company makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Jobs requested or services provided by, or the communications of or between, Users identified through the Mechanican Platform, whether in public, private, or offline interactions or otherwise howsoever. Company may, under certain circumstances, provide limited warranty services for a fee or other consideration as agreed separately between Company and any User. However, without any express notation of warranty delivered to any User with respect to any Job, Company provides no warranty whatsoever.
- User Vetting and User Representations and Warranties
In Company’s sole discretion, Users may be subject to a vetting process before they can register for and during their use of the Mechanican Platform, including but not limited to a verification of identity. In the performance of Company’s optional vetting, Company may utilize the services of one or more third parties as appropriate. Although Company may perform Identity Checks, Company is not required to do so and cannot confirm that each User is who they claim to be. Company cannot and does not assume any responsibility for the accuracy or reliability of vetting information or any information provided through the Mechanican Platform.
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. Mechanican will not be liable for any false or misleading statements made by Users of the Mechanican Platform. NEITHER MECHANICAN NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “MECHANICAN AND AFFILIATES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE MECHANICAN PLATFORM AND YOU HEREBY RELEASE MECHANICAN 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 MECHANICAN PLATFORM.
User Representations and Warranties
You represent and warrant that: (1) you are 18 years of age or older and are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (2) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You further represent and warrant that you have read, understand, and agree to be bound by the Agreement in order to access and use the Mechanican Platform. You hereby warrant and represent that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of Users and that you will not record (whether video or audio or otherwise) any Job or any interaction by or with any User and/or Company in connection with the Mechanican Platform without the prior written consent of Company and/or the relevant User, as applicable. You further represent and warrant that you will fulfill the commitments you make to other Users, including paying/receiving payment through the Mechanican Platform (or through another service as applicable), performing the Job(s) agreed upon as between the Service Provider and Client, communicating clearly and promptly through the Mechanican Platform, responding to any inquiries promptly, being present and/or available at the time you agree upon with your Service Provider or Client as the case may be, and only utilizing the third party payment processing system specified or approved by us to make or receive payment for services provided through the Mechanican Platform. You also represent and warrant that you will act professionally and responsibly in your interactions with other Users. You further represent and warrant that when using or accessing the Mechanican Platform, you will act in accordance with any applicable local, state, national, or international law, custom and in good faith.
You hereby warrant and represent that, other than as fully and promptly disclosed to Company as set forth below, you do not have any motivation, status, or interest which Company may reasonably wish to know about in connection with the Mechanican Platform, including without limitation, if you are using or will or intend to use the Mechanican Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Company in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Mechanican Platform.
Service Providers additionally represent and warrant that you will provide timely, high-quality services to your Clients, you will only offer and provide services for which you have the necessary skills and expertise (and licensing, as applicable), and you will provide the services safely and without damage.
- Contract between Clients and Service Providers
You acknowledge and agree that a legally binding contract (the “Service Agreement”) is formed when you agree on the terms of a Job with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the Mechanican Platform, and any other contractual terms accepted by both the Service Provider and their Client to the extent such terms do not conflict with the terms in this Agreement, including this Section 3, and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Service Provider (or any Assistants or other persons supplied by the Service Provider), nor will it create an employment relationship between the Client and the Service Provider or any such person. Company’s role is restricted solely to acting as a limited payment collection agent for the Service Provider to facilitate payment on behalf of the Service Provider through the Mechanican Platform in respect of Jobs they perform. In acting as the limited payment collection agent for particular Jobs on the Mechanican Platform, Mechanican disclaims any other agency or authority to act on behalf of the Service Provider, and assumes no liability for any acts or omissions of the Service Provider, either within or outside of the Mechanican Platform.
Where approved in advance by the Client, the Service Provider is not obligated to personally perform the Services. Before any Job services are performed by any assistants, helpers, subcontractors or other personnel engaged by the Service Provider (collectively “Assistants”), the Service Provider shall require any such individuals to become fully registered, oriented and verified Service Providers on the Mechanican Platform. A Service Provider’s failure to comply with this provision by bringing an Assistant who is not a registered Service Provider could lead to removal from the Mechanican Platform. The Service Provider assumes full and sole responsibility for the acts and omissions of such Assistants, including without limitation the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable state and federal income tax withholdings as to the Service Provider and all persons engaged by the Service Provider in the performance of the Job services. The Service Provider will also obtain, prior to beginning the Job, any and all insurance and licenses which may be necessary with respect to any Assistants who assist with the Job.
While using the Mechanican Platform, Clients, in their sole discretion, determine whether they will be present or not when a Job is performed and/or completed. Clients who elect not to be present when a Job is performed and/or completed agree that if any other party is present when the Job is performed, they are appointing that person as their agent (“Client’s Agent”) and the Service Provider may take and follow direction from the Client’s Agent as if such direction was given from the Client him or herself.
The Client shall pay their Service Provider directly for completed Job services as directed by Company, which may include payment directly on the Mechanican Platform or payment through a Payment Service Provider (“PSP”) retained by the Company. All payments shall be at the rates agreed to by the parties in the Service Agreement. Each party agrees to comply with the Service Agreement and this Agreement during the engagement, performance and completion of a Job. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding. Company reserves the right to suspend or terminate any account or Job pending the resolution of any dispute.
- Billing and Payment
Users of the Mechanican Platform contract for Jobs directly with other Users. Company will not be a party to any contracts for Jobs or services. Payment for Job services through the Mechanican Platform is made directly from the Client to the Service Provider, and not by Company. Company is not obligated to pay Service Provider for Client’s failure to pay for services or for any damages sustained by Service Provider as a result of any action or inaction by Client.
Users of the Mechanican Platform will be required to provide their credit card or debit card and/or bank account details to Company (and, applicable, the PSP). Service Providers are responsible for invoicing their Clients within 24 hours of the work being performed, even if the Job is not completed in its entirety or is designed as “ongoing”. Clients will be responsible for paying the invoice for each Job (the “Invoice”), which will include (i) the pricing terms of the Job agreed with and provided by a Service Provider (“Job Payment”), (ii) any out of pocket expenses agreed with and submitted by a Service Provider in connection with the Job, (iii) any tip or gratuity, if applicable, (iv) the service charge Company assesses as payable for the use of the Mechanican Platform, variable based on the Job Payment amount, and (v) the platform fee, if applicable, which is used to offset Company’s cost of providing Users with customer support and maintaining the Mechanican Platform, and (vi) cancellation fees, if applicable. Service Providers will be responsible for paying (i) registration fees, if applicable, (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments. Clients may also be charged credit card processing fees based upon the aggregate expense amount charged by Service Provider.
Service Providers may be required to register with the PSP. If registration with the PSP is required, the Service Provider agrees to agree to terms of service of the PSP and participate in a vetting process at the request of the PSP to set up their account with the PSP (the “PSP Services Agreement”). By accepting these Terms of Service, each Service Provider agrees that they have reviewed and agreed to the PSP Services Agreement if one is available. Please note that Mechanican is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that Mechanican has no obligations or liability to any Service Provider or other party under the PSP Services Agreement.
To help prevent fraud and safeguard User information from the risk of unauthorized access, Company and/or the PSP may validate an account before activation. As part of the account validation, a temporary identity verification charge may be placed on the account associated with the User and then refunded within 1-3 business days.
When Client receives confirmation through the Mechanican Platform or via email that a Job has been completed, Client authorizes Company or PSP to process the Invoice. Although Company is under no obligation to do so, Users hereby agree to permit Company to place a charge for any Invoice against any financial account provided by User in relation to the Service Agreement. Users may be charged a cancellation fee through by Company or the PSP if the User books (or accepts) a Job, but cancels it before the scheduled time for performance.
Although Company retains no obligation to do so, Company reserves the right in its sole discretion, upon request from Client or Service Provider, or upon notice of any potential fraud, unauthorized charges or other misuse of the Mechanican Platform, to (i) place on hold any Job Payment, out of pocket expenses, and/or tip or gratuity (if applicable) or (ii) refund or provide credits, or arrange for the PSP to do so if applicable.
Job Payment and fees must be paid as indicated on the Mechanican Platform, which may include payment through the PSP.
Users of the Mechanican Platform will be liable for any taxes required to be paid on the Jobs provided under the Agreement or for payment received for performing a Job. Company has no obligation whatsoever with respect to tax obligations which are not its own obligations. Users expressly agree and accept that although Company has no obligation with respect to User tax liability, Company may withhold a portion or all of any payment to any User with respect to tax liability which may be owed by the User.
- Promotional Activities
Company may from time to time provide certain promotional opportunities and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified, or removed at any time by Company without advance notification. Users agree that the liability of any of Company pursuant to such promotional opportunities and contests shall be limited pursuant to Section 15 of these Terms of Service.
User agrees that by participating in any promotional activities, User specifically agrees to the terms governing that promotional activity, waives any right to any notice or presentment provided by any state or federal law (to the extent permitted), and specifically agrees to participate in any vetting process required by Company before any award or transfer to a User of any good, service, or consideration as a result of any promotional activities.
- Public Areas; Acceptable Use
The Mechanican Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Mechanican Platform, you should not share your personal contact information with other Users.
Without limitation, while using the Mechanican Platform, you may not:
- Defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and Mechanican staff, or use information learned from the Mechanican Platform or during the performance of Jobs to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other User or Company staff;
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Mechanican Platform;
- Use the Mechanican Platform for any unauthorized purpose or unlawful purpose, including, but not limited to posting or completing a Job in violation of local, state, national, or international law;
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or Company;
- Upload files that contain viruses, corrupted files, or any other similar software that may damage the operation of electronic systems;
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly;
- Advertise or offer to sell any goods or services for any commercial purpose through the Mechanican Platform which are not relevant to the Job services offered through the Mechanican Platform;
- Conduct or forward surveys, contests, pyramid schemes, or chain letters;
- Impersonate another person or a User or allow any other person or entity to use your identity to post or view comments;
- Post the same Job repeatedly (“Spamming”). Spamming is strictly prohibited;
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Mechanican Platform;
- Restrict or inhibit any other User from using and enjoying the Public Areas;
- Imply or state that any statements you make are endorsed by Company, without the prior written consent of Mechanican;
- 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 Mechanican Platform, or the personal information of others, in any manner;
- Frame or utilize framing techniques to enclose the Mechanican Platform or any portion thereof;
- Hack or interfere with the Mechanican Platform, its servers or any connected networks;
- Adapt, alter, license, sublicense or translate the Mechanican Platform for your own personal or commercial use;
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Mechanican and Affiliates;
- Upload content to the Mechanican 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 Mechanican 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 Mechanican Platform as set forth herein;
- Use the Mechanican Platform to collect usernames and or/email addresses of Users by electronic or other means;
- Use the Mechanican Platform or the Job services in violation of this Agreement;
- Use the Mechanican 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 Company’s trade secret information for public disclosure or other purposes;
- Attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the Mechanican 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; or
- Cause, compel, or incent any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. Mechanican will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
- Termination and Suspension
Company may terminate or limit your right to use the Mechanican Platform in the event that we are investigating you or your activities on the Mechanican Platform or deriving from the Mechanican Platform, or if we believe that you have breached any provision of this Agreement (a “User Breach”), by providing you with written or email notice. Such termination or limitation will be effective immediately upon sending of such notice, regardless of actual delivery.
If Company terminates or limits your right to use the Mechanican Platform pursuant to this Section 7, you are prohibited from registering and creating a new account under your name, any new 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. If Company terminates or limits your right to use the Mechanican Platform as a Client due to a User Breach, you will not be entitled to any refund of unused balance in your account. Company reserves the right to maintain these funds to offset the costs associated with account investigation and termination.
Even after your right to use the Mechanican Platform is terminated or limited, this Agreement will remain enforceable against you. Company reserves the right to take appropriate legal action.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Mechanican Platform at its sole discretion. Company is not liable to you for any modification or discontinuance of all or any portion of the Mechanican Platform. Company has the right to restrict anyone from completing registration as a Service Provider if Company believes such person may threaten the safety and integrity of the Mechanican Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Mechanican Platform. 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.
- Account, Password, Security, and Mobile Phone Use
You must register with Company and create an account to use the Mechanican Platform (an “Account”). 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 Company for accessing the Mechanican Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. Company has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to contact Company as soon as is feasible.
By providing your mobile phone number and using the Mechanican Platform, you hereby affirmatively consent to Mechanican’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (a) utilize and improve upon the Mechanican Platform, (b) facilitate the carrying out of Jobs through the Mechanican Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Jobs, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming Jobs and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Apps, by emailing firstname.lastname@example.org and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing email@example.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
- User Generated Content
“User Generated Content” is defined as any information and materials you provide to Company, its corporate partners, Affiliates or other Users in connection with your registration for and use of the Mechanican Platform, including without limitation that 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 Mechanican 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 Mechanican has no obligation to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Mechanican platform at its sole discretion.
You hereby represent and warrant to Company that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, worms, time bombs, cancelbots or other computer programming routines or code that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not represent you being employed or directly engaged by or affiliated with Mechanican or purport you to act as a representative or agent of Mechanican; and (i) will not create liability for Company or cause Company to lose (in whole or in part) the services of its partners or suppliers (or cause such services to be impeded in provision to Company).
The Mechanican Platform may host User Generated Content relating to reviews and ratings of specific Service Providers (“Feedback”). Such Feedback, if any, is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake their own research to be satisfied that a specific Service Provider is the right person for a Job. You agree that Company is not responsible or liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company is not obligated to investigate any remarks posted by Users for accuracy or reliability but may do so at its discretion.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights you have in your User Generated Content, in any media now known or not currently known in order to utilize and improve upon the Mechanican Platform.
Each Service Provider who provides to Company any videotape, film, recording, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the Mechanican Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
- Exhibit, distribute, display, transmit, and broadcast on any and all media, including, without limitation, the internet, any videotape, film, recording or photograph that such User provides to Company or that Company takes of Service Provider, and use, reproduce, modify, or creative derivatives of such Service Provider 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”);
- Reproduce in all media any recordings of such Service Provider’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Mechanican Platform;
- Use, and permit to be used, such Service Provider’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Mechanican Platform in any media; and
- Use, and permit to be used, such Service Provider’s name and identity in connection with the Mechanican Platform.
Each Service Provider hereby waives all rights and releases Mechanican and Affiliates from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Service Provider’s identity, likeness or voice in connection with the Mechanican Platform.
Each Service Provider acknowledges that Mechanican shall not owe any financial or other remuneration for using the recordings provided hereunder by such Service Provider, either for initial or subsequent transmission or playback, and further acknowledges that Mechanican is not responsible for any expense or liability incurred as a result of such Service Provider’s recordings or participation in any recordings, including any loss of such recording data.
- Links to Third-Party Websites
The Mechanican Platform may contain links (such as hyperlinks) to third-party websites, content or servers. Such links do not constitute endorsement by Company or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Mechanican Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Company does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) 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 Mechanican 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 Mechanican 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 Mechanican platform at its sole discretion.
The use of any website controlled, owned or operated by third parties 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. Mechanican 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 Mechanican Platform. You hereby agree to hold Mechanican harmless from any liability that may result from the use of links that may appear on the Mechanican Platform.
As part of the functionality of the Mechanican Platform, it may be possible now or in the future to link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Mechanican Platform; or (ii) allowing Mechanican to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. If such opportunities are utilized by you in relation to the Mechanican Platform, you represent that you are entitled to disclose your Third-Party Account login information to Mechanican and/or grant Mechanican 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 Mechanican to pay any fees or making Mechanican subject to any usage limitations imposed by such third-party service providers. By granting Mechanican access to any Third-Party Accounts, you understand that (i) Mechanican may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the Mechanican Platform via your account, including without limitation any friend lists, and (ii) Mechanican may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on the Mechanican Platform. Please note that if a Third-Party Account or associated service becomes unavailable or Mechanican’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 Mechanican Platform. You will have the ability to disable the connection between your account on the Mechanican Platform and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Company is not responsible for any SNS Content.
- Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, MECHANICAN DOES NOT PERFORM JOBS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM JOBS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Mechanican does not, in any way, supervise, scope, direct, control or monitor a Service Provider’s work or Jobs performed in any manner. Company does not set a Service Provider’s work hours or location of work. Mechanican will not provide any equipment, labor or materials needed for a particular Job. Mechanican does not provide any supervision to Users.
The Mechanican Platform is not an employment service and Mechanican is not an employer of any User. As such, Mechanican is not responsible for and will not be liable for workman’s compensation or any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with a User’s use of the Mechanican Platform.
- Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Mechanican Platform is owned by Mechanican, excluding User Generated Content, which Users hereby grant Mechanican a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Mechanican owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Mechanican Platform without Mechanican’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Mechanican and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Mechanican, including without limitation Mechanican and Mechanican logos, are service marks owned by Mechanican. Any other trademarks, service marks, logos and/or trade names appearing via the Mechanican 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.
- Copyright Complaints
Mechanican 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 Mechanican Platform infringe upon your copyright or other intellectual property right, please send your inquiry to Company at firstname.lastname@example.org.
- Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Mechanican and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Mechanican 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 promptly notify Mechanican in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Mechanican upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Mechanican’s trade secrets, confidential and proprietary information, and all other information and data of Mechanican 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 and confidential information relating to Mechanican or Mechanican’s business, operations or properties, including information about Mechanican’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
- Disclaimer of Warranties
(a) Use Of The Mechanican Platform Is Entirely At Your Own Risk
THE MECHANICAN PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MECHANICAN MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE MECHANICAN PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE MECHANICAN 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 MECHANICAN 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.
Company does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the Mechanican Platform or any hyperlinked website or featured in any banner or other advertising, and Mechanican will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. Company may, under certain circumstances, provide limited warranty services for a fee or other consideration as agreed separately between Company and any User. However, without any express notation of warranty delivered to any User with respect to any Job, Company provides no warranty whatsoever.
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, Mechanican and Affiliates do not warrant that access to the Mechanican Platform will be uninterrupted or that the Mechanican Platform will be error-free; nor does it make any warranty as to the results that may be obtained from the use of the Mechanican Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Job, service, information or materials provided through or in connection with the use of the Mechanican Platform. Mechanican and Affiliates are not responsible for the conduct, whether online or offline, of any User. Company and Affiliates do not warrant that the Mechanican Platform is free from computer viruses, system failures, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Company 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.
Each Client is responsible for determining the Job and selecting their Service Provider and Mechanican does not warrant any goods or services purchased by a Client and does not recommend any particular Service Provider. Mechanican does not provide any warranties or guarantees regarding any Service Provider’s professional accreditation, registration or license.
In addition, no individual or entity shall be a third party beneficiary of these terms. These terms are solely for the benefit of the parties to this Agreement and are not intended to and shall not be construed to give any person or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other rights (including, without limitation, any third party beneficiary rights), with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
(b) No Liability
You acknowledge and agree that Company is only willing to provide the Mechanican Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Company 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 Mechanican Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by Company and Affiliates and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL COMPANY AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR 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 MECHANICAN, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE MECHANICAN PLATFORM OR THE JOB SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME.
COMPANY AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS MECHANICAN PLATFORM. MECHANICAN AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE MECHANICAN PLATFORM.
TO THE EXTENT PERMITTED BY LAW, IF NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT MECHANICAN 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 LESSER OF (1) $50,000.00; OR (2) TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE
THE MECHANICAN PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. BECAUSE MECHANICAN IS NOT A PARTY TO OR OTHERWISE INVOLVED IN THE ACTUAL CONTRACT BETWEEN USERS OR IN THE COMPLETION OF THE JOB, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU HEREBY RELEASE MECHANICAN AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL, OR EXEMPLARY), EXPENSES, LOSSES, GOVERNMENTAL OBLIGATIONS, SUITS AND/OR CONTROVERSIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
You hereby agree to indemnify, defend, and hold harmless Company and Affiliates, and their attorneys, insurers, independent contractors, providers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the Mechanican Platform or Job/Service Provider services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your account to the Mechanican 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. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on our infrastructure. Company 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 Company.
- Choice of Law and Venue
The rights and obligations of the parties under the Agreement shall be governed by, and construed in accordance with, the laws of the State of Arkansas and of the United States, without giving effect to the principles of Arkansas law relating to the conflict or choice of laws. Any legal action, suit or proceeding brought by a party that in any way arises out of this Agreement (“Proceeding”) must be litigated exclusively in the United States District Court for the Eastern District of Arkansas or the Circuit Courts of Pulaski County, Arkansas (the “Identified Courts”). Each party hereby irrevocably and unconditionally: (i) submits to the jurisdiction of the Identified Courts for any Proceeding; (ii) shall not commence any Proceeding, except in the Identified Courts; (iii) waives, and shall not plead or make, any objection to the venue of any Proceeding in the Identified Courts; (iv) waives, and shall not plead or make, any claim that any Proceeding brought in the Identified Courts has been brought in an improper or otherwise inconvenient forum; and (v) waives, and shall not plead or make, any claim that the Identified Courts lack personal jurisdiction over it.
This choice of law provision is only intended to specify the use of Arkansas law to interpret this Agreement and is not intended to create any substantive right to non-Arkansans to assert claims under Arkansas law whether by statute, common law, or otherwise.
- No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
- General Provisions
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Company with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. 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. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 19 shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
- Licensing and Qualification
Service Providers determine what categories they are qualified to Job in, and scope the Job directly with their Client. Mechanican does not oversee, monitor or direct how a Service Provider performs a Job, does not monitor Jobs or chat threads between Users, and does not otherwise oversee or assume responsibility for the actions of Users. Clients are advised to confirm with their Service Provider that their Service Provider is qualified to perform the Job prior to the Job taking place. Mechanican is not liable for the acts or omissions of Users, nor does Mechanican provide insurance against any losses sustained by Users.
Service Providers alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Jobs. Indeed, certain types of Jobs and services may be prohibited altogether, and it is the responsibility of Service Providers to avoid such prohibited Jobs and services. Penalties may include fines or other enforcement. If you have questions about how local laws apply to your Jobs and services on the platform, you can and should first seek separate legal guidance.
Because Company does not oversee, monitor or supervise the posting, scoping or performance of Jobs, Clients must determine for themselves whether a Service Provider is qualified to perform the specific Job at hand. Clients may wish to consult their state or local requirements to determine whether certain Jobs are required to be performed by a licensed professional.
- Changes to this Agreement and the Mechanican Platform
Company reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement and review, improve, modify or discontinue, temporarily or permanently, the Mechanican Platform or any content or information through the Mechanican Platform at any time, effective with or without prior notice and without any liability to Company. Company will endeavor to notify you of material changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Mechanican Platform. Your continued use of the Mechanican Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Company may also impose limits on certain features or restrict your access to part or all of the Mechanican Platform without notice or liability.
- No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
- 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 e-mail or by posting Notices on this Site. 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: (i) when received, if personally delivered; (ii) when deposited, if sent by certified or registered mail, return receipt requested; (iii) the day after it is sent, if transmitted by facsimile or email; or (iv) the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service, the Agreement or about the Mechanican Platform, please contact us by email at:
or by mail at:
5049 Edwards Ranch Road
Fort Worth, TX