Last Updated Date: 15 October 2019
1.1 Marketplace Services. The Marketplace Services allow Hiring Entities to connect and contract with Service Providers, so that the Service Providers can perform Provider Services for Employers and Enrollees as a contractor of Hiring Entity.
(a) You acknowledge and agree that a legally binding contract (a “Services Contract”) is formed when you agree with another User on the terms of any Provider Services to be provided. The terms of each Services Contract include: (i) the terms set forth in these Terms with respect to performance under Services Contracts; (ii) the Provider Services to be performed; (iii) the period during which the Provider Services will be performed (the “Services Contract Term”); (iii) any applicable Incentives; (iv) the Provider Fees to be paid and/or the metrics for calculation of Provider Fees; (v) any other terms proposed and accepted between the Hiring Entity and the Service Provider; and (vi) any other contractual terms accepted by both the Service Provider and the Hiring Entity (to the extent such terms do not conflict with the terms in these Terms, and do not expand Enrollify’s obligations or restrict Enrollify’s rights under these Terms). You agree that Enrollify is not a party to any Services Contract; and that the formation of a Services Contract will not, under any circumstance, create an employment or other service relationship between you and Enrollify, nor an employment relationship between you and the other User.
(b) Enrollify does not hire Service Providers, perform Provider Services, or have any responsibility related to hiring Service Providers or performing Provider Services. While Enrollify may provide pricing and guidance in connection with our Marketplace Services, such information is solely informational. Other than to the limited extent expressly set out below with respect to certain payment matters, we do not take part in the interaction between Users of the Marketplace Services. Without limiting the generality of the foregoing, we do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by Users, performance of Provider Services, the metrics used to calculate Provider Fees, or of the integrity, responsibility, or any actions of any Users. Although Enrollify may attempt verify a Service Provider’s license to provide certain Provider Services, we cannot confirm that each User is who they claim. Enrollify does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Marketplace Services, including any licensing information.
1.2 Definitions. For purposes of these Terms:
(a) “Hiring Entity” means a User that is hiring Service Providers to provide Provider Services, including but not limited to employee benefits brokers, consultants, and enrollment firms;
(b) “Employer” means the entity through which Enrollees are provided access to employment benefits;
(c) “Enrollees” means the individual employees who enroll for insurance with or through a Hiring Entity;
(d) “Enrollee Data” means any data pertaining to individual Enrollees;
(e) “Enrollify”, “we”, “us”, or “our” means Enrollify, Inc.;
(f) “Enrollify Fees” means fees owed to or collected by Enrollify for use of the Services.
(g) “Incentive” means a milestone based on a performance metric determined between a Hiring Entity and Service Provider and set out in the relevant Services Contract;
(h) “Provider Fees” means the fees payable by Hiring Entity to Service Provider under a Services Contract as recorded on the Services, which may include fees for Provider Services performed, such as fees payable per Enrollee seen by Service Provider (“Flat Fees”), and fees for Service Provider achieving Incentives during performance of the applicable Provider Services (“Incentive Fees”);
(i) “Provider Fee Deposit” means an amount that is payable by a Hiring Entity as a deposit toward the total Provider Fees that may be payable under that Services Contract as calculated in Enrollify’s good faith based on the anticipated Flat Fees payable for the number of potential Enrollees under a Services Contracts;
(j) “Provider Services” means counseling services provided to or on behalf of the Hiring Entity with respect to employee benefit programs;
(k) “Provider Fee Payment Date” means 45 calendar days after the applicable Service Contract Term; and
(l) “Service Provider” means a User performing or holding themselves out on the Services as willing to perform Provider Services.
2. USE OF THE SERVICES AND ENROLLIFY PROPERTIES. The Enrollify Properties and the information and content available on the Enrollify Properties are protected by copyright and other intellectual property laws throughout the world.
2.1 Access to the Services. Subject to your compliance with the Terms, Enrollify grants you the non-exclusive, limited right to access and use the Services for your internal business purposes. Unless otherwise specified by Enrollify in a separate license, your right to use any Enrollify Properties is subject to the Terms.
2.2 Application License. Subject to your compliance with the Terms, Enrollify grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes.
2.3 Updates. You understand that the Enrollify Properties are evolving. As a result, Enrollify may require you to accept updates to the Enrollify Properties that you have installed on your computer or mobile device. You acknowledge and agree that Enrollify may update the Enrollify Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Enrollify Properties.
2.4 Certain Restrictions. You agree that you will not: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Enrollify Properties or any portion of the Enrollify Properties, including the Website, (b) frame or utilize framing techniques to enclose any trademark, logo, or other Enrollify Properties (including images, text, page layout or form) of Enrollify; (c) use any metatags or other “hidden text” using Enrollify’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Enrollify Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Enrollify Properties in order to build a similar or competitive website, application or service; (g) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the Enrollify Properties; and (h) remove or destroy any copyright notices or other proprietary markings contained on or in the Enrollify Properties. Any future release, update or other addition to the Enrollify Properties shall be subject to the Terms. Enrollify, its suppliers and service providers reserve all rights not granted in the Terms. The rights granted to you hereunder are subject to your compliance with this Section 2.4. Any unauthorized use of the Enrollify Properties terminates the licenses granted by Enrollify pursuant to the Terms.
2.5 Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. Except as expressly set forth herein, you agree that it is impossible for Enrollify to monitor such materials and that you access these materials at your own risk.
3.1 Registering Your Account. In order to access certain features of the Enrollify Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Services (“Account”) or has a valid account on the social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third-Party Account”).
3.2 Access through a SNS. If you access the Services through a SNS as part of the functionality of the Enrollify Properties, you may link your Account with Third-Party Accounts, by allowing Enrollify 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 Enrollify and/or grant Enrollify 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 Enrollify to pay any fees or making Enrollify subject to any usage limitations imposed by such third-party service providers. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 9.1) for all purposes of the Terms. 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 Enrollify Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Enrollify’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Enrollify Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. 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, AND ENROLLIFY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Enrollify makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Enrollify is not responsible for any SNS Content.
3.3 Registration Data. In registering for an Account on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You may not share your Account or password with anyone, and you agree to (i) notify Enrollify immediately of any unauthorized use of your password or any other breach of security; and (ii) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Enrollify has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Enrollify has the right to suspend or terminate your Account and refuse any and all current or future use of the Enrollify Properties (or any portion thereof). You agree not to create an Account using a false identity or any false information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account as a Service Provider and one Account as a Hiring Entity per platform or SNS at any given time. Enrollify reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Enrollify Properties if you have been previously removed by Enrollify, or if you have been previously banned from any of the Enrollify Properties.
3.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Enrollify Properties, including but not limited to, a mobile device that is suitable to connect with and use the Enrollify Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Enrollify Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Enrollify will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us within your Account settings or by emailing firstname.lastname@example.org.
4. FEES AND PAYMENT POLICY. In order to access and use certain features of the Services, you may be required to provide credit card information or account information necessary to facilitate payments hereunder (“Payment Method”). You agree to keep all Payment Method information true, accurate, and complete at all times. We may change our fees from time to time by posting the changes on the Enrollify Properties fourteen (14) days in advance.
4.1 Refunds. Except as expressly set forth herein, Enrollify has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by Enrollify, in each case in Enrollify’s sole discretion.
4.2 Referral Credits. Enrollify may offer you credits against Enrollify Fees payable hereunder, cash bonuses, or other incenntives if third parties whom you refer to the Services, and who have not already used or registered to use the Services, register to use the Services (“Referral Benefits”). Referral Benefits will be deemed awarded and earned (and the amount of any Referral Benefits will be set) solely upon Enrollify’s confirmation thereof at Enrollify’s sole discretion. The amount of any Referral Benefit earned by you that is awarded as a credit will be credited against any immediately subsequent Enrollify Fees payable by you hereunder. Any Referral Benefit that is awarded as an incentive or credit as opposed to a cash benefit will have no cash value.
4.3 Transactions. Enrollify facilitates Services Contracts by supplying a medium for the exchange of money and information. Without limiting the effect of Section 13.2, you represent and warrant that all payments under a Services Contract to which you are a party will be made through the Services.
4.4 Taxes. The payments required under these Terms do not include any Sales Tax that may be due in connection with any products or services provided under these Terms. If Enrollify determines it has a legal obligation to collect Sales Tax from you in connection with these Terms, Enrollify shall collect such Sales Tax in addition to the payments required under these Terms. If any services or products, or payments for any services or products under these Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Enrollify, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Enrollify for any liability or expense Enrollify may incur in connection with such Sales Taxes. Upon Enrollify’s request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5. PAYMENT ACCOUNTS. In connection with your use of any Marketplace Services, you understand and agree that:
5.1 The transmission of funds for fees payable under a Services Contract in the manner described herein is not a separate and discrete service that Enrollify provides in addition to the Services. Rather, the transmission of funds in an auditable manner is an integral part of the Marketplace Services that Enrollify provides.
5.2 Each User’s payment account is a custodial account administered by Enrollify to facilitate disbursement of each Service Provider’s payment from each Hiring Entity.
5.3 Enrollify acts as agent of each User and not as a trustee or fiduciary with respect to payments received through Enrollify.
5.4 Enrollify holds funds delivered to it by any User in a commingled account at a bank (each, a “Pooled Account”), and may include in the titling of a Pooled Account “Enrollify, for the benefit of others” or similar words.
5.5 Enrollify will not voluntarily make your funds available to its creditors in the event of bankruptcy.
5.6 You agree that Enrollify has sole discretion over the establishment and maintenance of any Pooled Account. You agree that you will not receive interest or other earnings on the funds that Enrollify handles as your agent and places in a Pooled Account. In consideration for your use of the Enrollify Properties, you irrevocably transfer and assign to Enrollify any ownership right that you may have in any interest that may accrue on funds held in a Pooled Account. This assignment applies only to interest earned on your funds, and nothing in these Terms grants Enrollify any ownership right to the principal of the funds you maintain with Enrollify. In addition to or instead of earning interest on Pooled Accounts, Enrollify may receive a reduction in fees or expenses charged for banking services by the banks that hold your funds.
6. TERMS APPLICABLE TO HIRING ENTITIES. This Section applies solely to the extent that you access and use the Services as a Hiring Entity.
6.1 Hiring Entity’s use of Marketplace Services. You agree that:
(a) you are responsible for the accuracy and content of any solicitation for Provider Services;
(b) Enrollify does not guarantee that a solicitation for Provider Services will be answered or that any Services Contract will be reached between you and a Service Provider;
(c) Enrollify is not responsible for, and will have no responsibility arising out of any performance of any Provider Services;
(d) you will pay all fees payable under Services Contracts via the Services in the amounts and at the rates agreed to by you and the applicable Service Provider;
(e) you will comply with the Services Contract and these Terms during the engagement, performance, and completion of any Provider Services;
6.2 Provider Fees. You agree to pay all Provider Fees under Services Contracts to which you are a party. All Provider Fees are payable in accordance with the Provider Fee Description. You acknowledge that you may be required to pay and agree to pay any required Provider Fee Deposit upon consummation of the applicable Services Contract. Unless otherwise stated, all Provider Fees under a Services Contract are due and payable upon the Provider Fee Payment Date. Any Provider Fee Deposit attributable to a Services Contract will be credited against the Provider Fees payable under that Services Contract. In the event that the Provider Fee Deposit exceeds the total amount of Provider Fees payable under a Services Contract, Enrollify will refund you the amount of any such excess within a commercially reasonable time after the applicable Provider Fee Payment Date. In the event that the total Provider Fees payable under a Services Contract exceeds the applicable Provider Fee Deposit, such excess will be immediately due and payable by you. You are solely responsible for verifying any metrics upon which Provider Fees payable by you are calculated. Any such metrics that are not disputed or changed as of the applicable Provider Fee Payment Date are hereby verified by you. You acknowledge and agree that Enrollify will have no responsibility for verifying any metrics upon which Provider Fees payable by you are calculated, and no liability for any amounts of Provider Fees calculated based on such metrics.
6.3 Enrollify Fees. In consideration of your use of the Services, you will be required to pay the Enrollify Fees in the amounts or based on the metrics set forth at https://enrollify.io/faqs-4 which may be modified on a going forward basis without affect to any Services Contract then in effect. Enrollify Fees may include fees payable based upon the number of Eligible Enrollees under a Services Contract. Unless otherwise agreed by us in writing, such Enrollify Fees are due and payable upon when the applicable Services Contract takes effect. Additionally, you agree to pay any amounts that would have otherwise been payable by you to Enrollify in connection with a Services Contract: (a) had you provided true and accurate information prior to entering into the Services Contract; or (b) if a change in the applicable information after payment of the Enrollify Fees would have resulted in a greater amount of Enrollify Fees had such information been true and accurate at the time that the Enrollify Fees were paid. You represent and warrant that any information provided by you, based upon which any Enrollify Fees are calculated, including any information about the number of Eligible Employees under a Services Contract, is true, complete, and accurate, and will be kept true complete and accurate at all times.
6.4 Payment Terms. You hereby authorize Enrollify or its third party payment service provider to charge your Payment Method for any Provider Fee Deposit, Provider Fees, Enrollify Fees, and any other amounts payable by you hereunder upon such amounts becoming due and payable.
6.5 Benefits Administration System Data. Certain features of the Services may require Enrollee Data to be obtained from third party benefit administrators that administer and/or facilitate enrollment of Enrollees (each “Ben Admin”) and analyzed by Enrollify for your benefit. To the extent you have registered for such Services, you are solely responsible for obtaining, and you represent and warrant that you have obtained in writing, in a form substantially similar to the form of consent provided at https://enrollify.io/consent-to-share-data , all consents and authorizations from Employers for whom you request Enrollee Data that are necessary to permit the applicable Ben Admin to provide the necessary Enrollee Data to Enrollify for the purposes of providing the Services to you. Upon Enrollify’s or Benefit Admin Provider’s request, you will promptly provide a copy of such consents and authorizations. Any failure to obtain Enrollee Data that is caused by: (a) your failure to obtain any necessary consent or authorization; (b) an Enrollee’s or Employer’s revocation of such consent or request that Enrollify no longer use or have access to any or all Enrollee Data; or (c) a technical failure of a Benefit Admin Provider will not give rise to a termination of or right to terminate these Terms in whole or with respect to the applicable Services or foreclose any payment obligations for the applicable Services.
7. SERVICE PROVIDER TERMS. This Section applies solely to the extent you access and use the Services as a Service Provider.
7.1 Control of Provider Services. You acknowledge and agree that:
(a) you are responsible for reading the full request for Provider Services before committing to perform any Provider Services;
(b) you decide when to log into the Services;
(c) you decide whether to accept, reject, or ignore introductions or connections to Hiring Entities;
(d) Enrollify has no control over your performance of the Provider Services in any respect;
(e) you are responsible for determining and negotiating with each Hiring Entity the price for the Provider Services without any input or direction from Enrollify;
(f) you do not receive supervision from or performance evaluations by Enrollify;
(g) you are permitted to maintain your independent business and other Hiring Entities without using the Services;
(h) you are not restricted from using competitive services or technology platforms;
(i) you retain the right to hire employees or subcontractors in performing Provider Services, and acknowledges that these employees or subcontractors will possess the licensing, skill and ability to provide Provider Services;
(j) your opportunity for profit or loss is dependent on his or her own managerial skill;
(k) you solely control the amount of your investment in the Provider Services, including expenses on training and tools;
(l) you exclusively control your performance of the Provider Services, including, but not limited to, possessing the requisite skills, credentials and training to perform Provider Services that you accept hereunder; and
(m) you will not be required to perform any particular volume of Provider Services for any particular period and nothing will guarantee you a particular volume of business for any particular period.
7.2 Enrollify Services Fees. In consideration of your use of the Services, you will owe the Enrollify Fees set forth at https://enrollify.io/faqs-4 , which may be modified on a going forward basis without affect to any Services Contract then in effect. Such Enrollify Fees will be deducted from Provider Fees paid by Hiring Entities via the Services under Service Contracts to which you are a party. You understand and agree that such Enrollify Fees will be deducted from Provider Fees payable to you through the Services under a Services Contract, and you hereby authorize Enrollify or its third-party payment service provider to collect the Enrollify Fees from such Provider Fees https://www.paymentrails.com/terms#use.
7.3 Provider Fees. You will earn the Provider Fees for Services Contracts to which you are a party, which may include Flat Fees and Incentive Fees. All Provider Fees payable to you under a Services Contract, net of any Enrollify Fees, will be paid to your Payment Method within a commercially reasonable time after the Hiring Entity’s verification and payment of the Service Contract Fees to be paid, but in no event later than 5 business days after the applicable Provider Fee Payment Date assuming that the Provider Fees have been. Enrollify retains the right, in its sole discretion, to place a hold on any payment for completed Provider Services. For the avoidance of doubt, Enrollify is not a guarantor of payment and our obligations under this Section 7.3 are subject to payment in full by the Hiring Entity.
7.4 Service Provider’s Business. You affirm that you: (a) are self-employed, maintain and operate a professional services business that is separate and independent from Enrollify; (b) hold yourself out to the public as independently competent and available to provide Provider Services; and (c) have obtained and/or expect to obtain Hiring Entities for whom Service Provider performs Provider Services through other means other than Enrollify and prior to entering into these Terms. You acknowledge that you have not and will not develop, maintain or otherwise operate the Services; rather, you use the Services to acquire opportunities to perform Provider Services. You have the right to sub-contract any of your obligations hereunder provided that: (i) the prior written consent of Enrollify is first obtained; (ii) all sub-contractors sign an agreement with you containing terms and conditions substantially similar to this Section in a form provided by Enrollify; (iii) by accessing and using the Services, you acknowledges that you shall remain fully liable for the due performance of your obligations under these Terms.
7.5 Service Provider Responsibilities. In connection with your performance of Provider Services, or prior thereto, you agree that:
(a) you will maintain, and supply Enrollify with a true and accurate copy of all licenses with the appropriate level of certification required to provide Provider Services, and proof of requisite insurance coverage;
(b) you represent and warrant that all information provided by you is accurate and complies with relevant law, and you will immediately notify Enrollify of any change in any such information;
(c) as a condition of doing business with Enrollify, you will maintain current insurance, in amounts and of types required by law to provide the Provider Services, at your own expense;
(d) you will deliver to Enrollify: (i) upon request, current certificates of insurance as proof of coverage; (ii) updated certificates each time Service Provider purchases, renews, or alters Service Provider’s insurance coverage; (iii) at least thirty (30) days’ prior written notice before cancellation of any insurance policy required by these Terms;
(e) you will maintain workers’ compensation insurance as required by all applicable laws in the state and locality in which you perform Provider Services, or, if permitted by law, choose to either insure yourself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance, or not insure yourself against industrial injuries at all at your own risk;
(f) you assume complete responsibility for all Provider Services you perform or commit to perform and for compliance with all laws, regulations, and professional ethical guidelines and standards pertaining to Provider Services;
(g) you represent and warrant that any information pertaining to your performance of any Provider Services, including any information used in calculating any Service Contract Fees, provided, uploaded, or submitted by you to Enrollify, the Services, or a Hiring Entity is, and will be kept true, accurate, and complete;
(h) you will not, during the performance of any Provider Services, sell, attempt to sell, or promote products or services other than those the applicable Hiring Entity requests that you sell, attempt to sell or promote; and
(i) you represent and warrant that you are not subject to any suit, action, claim, arbitration or legal, administrative or other proceeding, or government or professional investigation, pending or threatened or affecting your ability to perform Provider Services, and will immediately inform Enrollify of any such action.
You acknowledge and a breach of this Section 7.5 is a material breach of these Terms and shall be grounds for Enrollify terminating these Terms (and deactivating Service Provider from the Services) in accordance with these Terms.
7.6 No Employment Relationship; No Legal or Other Advice. Neither these terms nor your performance under these Terms shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between Enrollify or its affiliates and you, or between Enrollify or its affiliates and your employees and agents. Enrollify and you agree that you and your employees and agents will receive no Enrollify-sponsored benefits from Enrollify or its affiliates where benefits include, but are not limited to, paid vacation, sick leave, medical insurance and 401k participation. If you or your employees or agents, are reclassified by a state or federal agency or court as Enrollify’s employee, you or your employees or agents, as applicable, will become a reclassified employee and will receive no benefits from Enrollify or its affiliates, except those mandated by state or federal law, even if by the terms of Enrollify’s benefit plans or programs of Enrollify in effect at the time of such reclassification, you or your employees or agents, as applicable, would otherwise be eligible for such benefits. You acknowledge your sole responsibility for complying with all federal, state and local tax filing and payment obligations that pertain to any remuneration received from Users or as facilitated by Enrollify (or its affiliates or agents) in connection with these Terms, including your sole responsibility for all tax withholding, Social Security, Worker’s Compensation Insurance, FICA, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pensions, and other obligations or benefits. You acknowledge that Enrollify is not rendering legal, tax, or investment advice, nor is Enrollify a fiduciary of you. Accordingly, you acknowledge that you may seek advice from an appropriate professional to comply with any and all applicable federal, state, and local laws or ordinances.
8. RELEASE. Enrollify expressly disclaims any liability that may arise between Users of its Services. Because Enrollify is not involved in the actual contract between Users or in the completion of any Provider Services, in the event that you have a dispute with one or more Users, including with respect to the performance of or failure to perform any Provider Services, the amount or sufficiency of any Provider Fees, or the authorization to release or failure to authorize the release of any Provider Fees, you hereby release Enrollify (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
9. RESPONSIBILITY FOR CONTENT.
9.1 Types of Content. You acknowledge that all Content contained in the Enrollify Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Enrollify, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Enrollify Properties (“Your Content”), and other Users of the Enrollify Properties, and not Enrollify, are similarly responsible for all Content they Make Available through the Enrollify Properties (“User Content”).
9.2 No Obligation to Pre-Screen Content. You acknowledge that Enrollify has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Enrollify reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Enrollify pre-screens, refuses or removes any Content, you acknowledge that Enrollify will do so for Enrollify’s benefit, not yours. Without limiting the foregoing, Enrollify shall have the right to remove any Content that violates the Terms or is otherwise objectionable. Enrollify is not responsible for and does not control User Content. Enrollify does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content at your own risk.
9.3 Storage. Unless expressly agreed to by Enrollify in writing elsewhere, Enrollify has no obligation to store any of Your Content that you Make Available on the Enrollify Properties. Enrollify has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Enrollify Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Enrollify retains the right to create reasonable limits on Enrollify’s use and storage of Content, including Your Content.
9.4 Enrollee Data
(a) Enrollee Data You Submit. Certain features of the Service may permit you to upload Enrollee Data to the Services and share Enrollee Data with a Service Provider or Hiring Entity with whom you have entered into a Service Contract. You represent and warrant that you have all necessary consents, authorizations, rights, and permissions to provide such Enrollee Data and to permit Enrollify to use such Enrollee Data in accordance with these Terms.
(b) Our Use of Enrollee Data. Notwithstanding anything to the contrary herein, Enrollify will only use Enrollee Data for the purpose of providing the Services to you and, solely on an aggregate and anonymous basis, for our business purposes, including to confirm any amounts paid or payable by you hereunder. ENROLLIFY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF ANY ENROLLEE DATA OR ANY ANALYSIS BASED THEREON.
10.1 Enrollify Properties. Except with respect to Your Content, you agree that Enrollify and its licensors own all rights, title and interest in the Enrollify Properties (including, but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Enrollify Properties.
10.2 Trademarks. Enrollify’s name and other related graphics, logos, service marks and trade names used on or in connection with the Enrollify Properties are the trademarks of Enrollify and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Enrollify Properties are the property of their respective owners.
10.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Enrollify Properties.
10.4 Your Content. Enrollify does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Enrollify Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
10.5 License to Your Content. Subject to any applicable account settings that you select, you grant Enrollify a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Enrollify Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Enrollify Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Enrollify, are responsible for all of Your Content that you Make Available on or in the Enrollify Properties.
10.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Enrollify Properties, you hereby expressly permit Enrollify to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
10.7 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Enrollify.
10.8 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Enrollify through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Enrollify has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Enrollify a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Enrollify Properties.
10.9 Reviews. The Services host Content that is related to reviews of certain Users. You acknowledge and agree that Users may post reviews about you. Such reviews are opinions and are not the opinion of Enrollify, have not been verified by Enrollify, and each User should undertake his or her own research to be satisfied concerning any specific User. You agree that Enrollify is not liable for any such Content.
11. USER CONDUCT. While using or accessing the Enrollify Properties you agree that you will not, under any circumstances:
(a) breach or circumvent any laws, third party rights or our systems, policies, or determinations of your Account status;
(b) interfere with or damage Enrollify Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) take any action that may undermine our feedback or ratings systems;
(d) transfer your Account or username to another party without our consent;
(e) bypass our robot exclusion headers, interfere with the working of the Enrollify Properties, or impose an unreasonable or disproportionately large load on our infrastructure;
(f) Make Available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(g) use the Enrollify Properties or the Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or
(h) Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities.
12. INVESTIGATIONS. Enrollify may, but is not obligated to, monitor or review the Enrollify Properties and Content at any time. Although Enrollify does not generally monitor User activity occurring in connection with the Enrollify Properties or Content, if Enrollify becomes aware of any possible violations by you of any provision of the Terms, Enrollify reserves the right to investigate such violations, and Enrollify may, at its sole discretion, immediately terminate your license to use the Enrollify Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
13. INTERACTIONS WITH OTHER USERS.
13.1 User Responsibility. You are solely responsible for your interactions with other Users of the Enrollify Properties and any other parties with whom you interact through the Enrollify Properties; provided, however, that Enrollify reserves the right, but has no obligation, to intercede in such disputes.
13.2 Non-Circumvention. You acknowledge and agree that a substantial portion of the compensation Enrollify receives for making the Marketplace Services available to you is collected through the Enrollify Fees described in Section 4. Enrollify only receives Enrollify Fees for Marketplace Services when a Hiring Entity and a Service Provider pay and receive payment via the Services. Therefore, for 24 months from the time you identify or are identified by any User through the Marketplace Services (the “Non-Circumvention Period”), you agree to use the Marketplace Services as your exclusive method to request, make, and receive all payments with that User for Provider Services or otherwise arising out of your relationship with that User. For the avoidance of doubt, if you did not identify or were not identified by another User through the Services, such as if you and another User worked together before meeting on the Services, then the Non-Circumvention Period does not apply; provided that any payment of Provider Fees for Provider Services contracted for through the Marketplace Services must be made through the Marketplace Services. You agree not to circumvent the payment methods offered by the Marketplace Services. By way of illustration and not in limitation of the foregoing, you agree not to:
(a) submit proposals or solicit parties identified through the Marketplace Services to contract, hire, work with, or pay outside the Marketplace Services;
(b) accept proposals or solicit parties identified through the Marketplace Services to contract, invoice, or receive payment outside the Marketplace Services;
(c) report on the Marketplace Services any payment amount lower than that actually agreed between Users; or
(d) refer a User you identified on the Marketplace Services to a third-party who is not a User of the Marketplace Services for purposes of making or receiving payments that should otherwise be made or received through the Marketplace Services.
You agree to notify Enrollify immediately if a User suggests making or receiving payments outside of the Marketplace Services in violation of this Section 13.2.
14. THIRD-PARTY SERVICES.
14.1 Third-Party Websites & Ads. The Enrollify Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third Party Applications”) and advertisements (“Third Party Ads”) for third parties (collectively, “Third-Party Websites & Ads”). When you click on a link to a Third-Party Website, Third Party Application or Third Party Ad, we will not warn you that you have left the Enrollify Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third Party Applications or Third Party Ads are not under the control of Enrollify. Enrollify is not responsible for any Third-Party Websites, Third Party Applications or and Third Party Ads. Enrollify provides these Third-Party Websites, Third Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third Party Applications and Third Party Ads, or their products or services. You use all links in Third-Party Websites, Third Party Applications and Third Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
14.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that the Terms are between you and Enrollify and not with the App Store. Enrollify, not the App Store, is solely responsible for the Enrollify Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Enrollify Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Enrollify Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
15. Enrollee Communication Services. Certain features of the Services may permit you to send messages and/or emails to third parties (“Communication Features”). You acknowledge and agree that: (a) you are solely responsible for the content of the correspondences you send using Communication Features; and (b) you, not Enrollify, are the sender of such correspondences. If you use any Communication Features, you represent and warrant that: (i) you have all necessary rights and authorizations to contact Enrollees; (ii) your use of such features will at all times comply with applicable laws, including the Telephone Consumer Protection Act; (iii) you will not take any action or make any omission to make any correspondence appear as though it is being sent by Enrollify.
16. INDEMNIFICATION. You agree to indemnify and hold Enrollify, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Enrollify Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (1) Your Content; (2) your use of, or inability to use, the Enrollify Properties; (3) your violation of the Terms; (4) your violation of any rights of another party, including any Users; (5) the actual or alleged negligence or intentional wrongdoing of you or persons under your control; (6) any liability for your payment or non-payment of federal, state, or local taxes, or other withholdings; (7) Services Contracts to which you are a party or your interactions with other Users; (8) your violation of any applicable laws, rules or regulations; or (9) to the extent you are a Hiring Entity, our access to or use of any Enrollee Data in accordance with these Terms. Enrollify reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Enrollify in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Enrollify Properties.
17. DISCLAIMER OF WARRANTIES AND CONDITIONS.
17.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE ENROLLIFY PROPERTIES IS AT YOUR SOLE RISK, AND ENROLLIFY PROPERTIES AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ENROLLIFY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) ENROLLIFY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE ENROLLIFY PROPERTIES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE ENROLLIFY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE ENROLLIFY PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (iv) ANY ERRORS IN THE ENROLLIFY PROPERTIES WILL BE CORRECTED.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE ENROLLIFY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE ENROLLIFY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ENROLLIFY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ENROLLIFY OR THROUGH THE ENROLLIFY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Enrollify may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Enrollify’s sole discretion. The provisions of this section apply with full force to such features or tools.
17.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT ENROLLIFY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ENROLLIFY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES OR OTHER USERS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
(a) ENROLLIFY MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ENROLLIFY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE ENROLLIFY PROPERTIES.
(b) WE ARE NOT INVOLVED IN THE SERVICE CONTRACTS BETWEEN SERVICE PROVIDERS AND HIRING ENTITIES. WHILE WE MAY HELP FACILITATE THE RESOLUTION OF DISPUTES THROUGH VARIOUS PROGRAMS, WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY OF BROKER SERVICES, THE TRUTH OR ACCURACY OF USER CONTENT OR REQUESTS FOR BROKER SERVICES, THE PHYSICAL OR LEGAL ABILITY OF BROKERS TO PERFORM BROKER SERVICES, THE ABILITY OF HIRING ENTITIES TO PAY FOR BROKER SERVICES, OR THAT BROKER WILL ACTUALLY COMPLETE ANY BROKER SERVICES.
(c) WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE ENROLLIFY PROPERTIES AND OPERATION OF THE ENROLLIFY PROPERTIES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. ACCORDINGLY, TO THE EXTENT LEGALLY PERMITTED, WE EXCLUDE ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS.
18. LIMITATION OF LIABILITY.
18.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ENROLLIFY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ENROLLIFY PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT ENROLLIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE ENROLLIFY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE ENROLLIFY PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE ENROLLIFY PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE ENROLLIFY PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO THE ENROLLIFY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
18.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ENROLLIFY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY ENROLLIFY AS A RESULT OF YOUR USE OF THE ENROLLIFY PROPERTIES. IF YOU HAVE NOT PAID ENROLLIFY ANY AMOUNTS ENROLLIFY’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
18.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
18.4 User Content. ENROLLIFY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
18.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ENROLLIFY AND YOU.
19. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Enrollify’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Enrollify by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Enrollify Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Enrollify Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written 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; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Enrollify’s Copyright Agent for notice of claims of copyright infringement is as follows: Adam H. Michaels, CEO/ Founder 3000 West Olympic Blvd Bldg 4, Santa Monica CA 90404 .
20. TERMINATION AND SUSPENSION. Enrollify may terminate or suspend these Terms or your right to access and use the Enrollify Properties at any time for any or no reason. We may cancel unconfirmed Accounts or Accounts that have been inactive for a long time, or modify or discontinue our Services. You may cease use of the Services at any time; provided that the Terms will remain in full force and effect with respect to any Services Contract to which you are a party and any payment obligations. Without limitation, Enrollify may terminate or suspend your right to use the Enrollify Properties if: (1) you breach any provision of the Terms or any policy of Enrollify posted through the Enrollify Properties from time to time; (2) Enrollify otherwise finds that you have engaged in inappropriate and/or offensive behavior; (3) Enrollify believes you are creating problems or possible legal liabilities; (4) Enrollify believes such action will improve the security of our community or reduce another User’s exposure to financial liabilities if Enrollify believes you are infringing the rights of third parties; (5) Enrollify believes you are acting inconsistently with the spirit of these Terms; (6) despite our reasonable endeavors, Enrollify is unable to verify or authenticate any information you provide; or (7) you fail to pay all fees due for our Services by the payment due date. In addition to terminating or suspending your Account, Enrollify reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Services is, or these Terms are terminated or suspended, these Terms will remain enforceable against you, and any provisions that by their nature should survive any termination of these Terms, including Sections 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 18, 19, 22, and 24.
21. VIOLATIONS. If Enrollify becomes aware of any possible violations by you of the Terms, Enrollify reserves the right to investigate such violations. If, as a result of the investigation, Enrollify believes that criminal activity has occurred, Enrollify reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Enrollify is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Enrollify Properties, including Your Content, in Enrollify’s possession in connection with your use of the Enrollify Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Enrollify, its Users or the public, and all enforcement or other government officials, as Enrollify in its sole discretion believes to be necessary or appropriate.
22. NO SUBSEQUENT REGISTRATION. If your registration(s) with or ability to access the Enrollify Properties, or any Services is discontinued by Enrollify due to your violation of any portion of the Terms or for conduct otherwise inappropriate, then you agree that you shall not attempt to re-register with or access the Enrollify Properties or any Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Enrollify reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
23. INTERNATIONAL USERS. Enrollify Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Enrollify intends to announce such Services or Content in your country. Enrollify Properties are controlled and offered by Enrollify from its facilities in the United States of America. Enrollify makes no representations that Enrollify Properties are appropriate or available for use in other locations. Those who access or use Enrollify Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.
24. GENERAL PROVISIONS.
24.1 Electronic Communications. The communications between you and Enrollify use electronic means, whether you visit the Enrollify Properties or send Enrollify e-mails, or whether Enrollify posts notices on the Enrollify Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Enrollify in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Enrollify provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
24.2 Release. You hereby release Enrollify Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Enrollify Properties, including but not limited to, any interactions with or conduct of other Users or Third-Party Websites of any kind arising in connection with or as a result of the Terms or your use of the Enrollify Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.”
24.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Enrollify’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
24.4 Force Majeure. Enrollify shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
24.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Enrollify Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
24.6 Limitations Period. YOU AND ENROLLIFY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE ENROLLIFY PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
24.7 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Enrollify and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Enrollify that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and Enrollify, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Enrollify should be sent to: 3000 Olympic Blvd, Bldg 4 Santa Monica California 90404. After the Notice is received, you and Enrollify may attempt to resolve the claim or dispute informally. If you and Enrollify do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Enrollify made to you prior to the initiation of arbitration, Enrollify will pay you the greater of the award or $1,000. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or Enrollify pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Enrollify, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Enrollify.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Enrollify in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ENROLLIFY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of these Terms shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Enrollify.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Enrollify may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
24.8 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the international sale of goods does not apply to these Terms.
24.9 Notice. Where Enrollify requires that you provide an e-mail address, you are responsible for providing Enrollify with your most current e-mail address. In the event that the last e-mail address you provided to Enrollify is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Enrollify’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Enrollify at the following address: 3000 West Olympic Blvd Bldg 4, Santa Monica CA 90404. Such notice shall be deemed given when received by Enrollify by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
24.10 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
24.11 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
24.12 Export Control. You may not use, export, import, or transfer the Enrollify Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Enrollify Properties, and any other applicable laws. In particular, but without limitation, the Enrollify Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Enrollify Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Enrollify Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Enrollify are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Enrollify products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
24.13 Accessing and Download the Application from Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Terms are concluded between you and Enrollify only, and not Apple, and (ii) Enrollify, 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.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) 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 Enrollify 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 Enrollify.
(d) You and Enrollify acknowledge that, as between Enrollify 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.
(e) You and Enrollify 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 Enrollify and Apple, Enrollify, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and Enrollify acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
24.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
24.15 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. For purposes of these Terms, the term “including” means “including without limitation”.
End of Terms