1. THESE TOS ARE A BINDING CONTRACT BETWEEN EXECUTIVE VIRTUAL ASSISTANTS LIMITED AND ITS WEB SITE USERS, CUSTOMERS AND EVAS. BY ACCESSING OR USING ANY PART OF THE WEB SITE OR THE EVA SERVICES, OR BY ACTING AS AN EVA, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TOS. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE WEB SITE, THE SERVICES, OR PERFORM ANY FREELANCE CALLING SERVICES. THESE TOS CONTAINS A WAIVER OF CLASSWIDE PROCEEDINGS WHICH MAY BE ENFORCED BY THE PARTIES. ADDITIONALLY, IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICE, THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL.
2. ABOUT THE EVA SERVICE
a. Executive Virtual Assistants Ltd. (“EVA.CO.KE.” or “Company”) provides a platform for collaboration and communication between calling agents (“EVAs”) and users seeking to outsource their outbound calling campaigns (“ “Merchant”). The EVA service (“Services”) provides access to EVA.CO.KE’s virtual community of EVAs, easy collaboration through EVA.CO.KE’s communication management tools; and simple, secure payment and invoicing tools.
b. EVA.CO.KE. is a software platform and industry marketplace—not a call center or contact centre. EVA.CO.KE does not initiate calls or offer call services directly. EVAs are not the employees or agents of EVA.CO.KE. EVA.CO.KE is not involved in agreements between Merchants or in the representation of Merchants. At no point will EVA.CO.KE be held liable for the actions or omissions of any EVA performing calling services for you.
c. EVA.CO.KE is not an Employment Agency. EVA.CO.KE does not select or endorse any individual EVA to service a Merchant. While EVA.CO.KE uses commercially reasonable efforts to verify that our registered EVAs are qualified, we do not make any warranty, guarantee, or representation as to the ability, competence, quality, or qualifications of any EVA.
d. EVA.CO.KE does not vouch for any of its Merchants. Providing a service where potential Merchants and calling professionals can meet does not imply an endorsement of any service provider.
a. EVA.CO.KE may terminate its relationship with any EVA at any time in its sole discretion with or without cause, including without limitation if EVA is determined by EVA.CO.KE to have violated any term herein or any relevant instruction of the Merchant on whose behalf the EVA is making calls.
b. EVAs are independent professionals who offer to perform calling services for Merchants directly and not for or to EVA.CO.KE. They are not employees or agents of EVA.CO.KE, which is merely a software solution and marketplace for product sellers to find and hire callers.
c. EVAs-Merchant Relationship through Service Use. A relationship may be formed through the use of the Service between Merchants and EVAs only. Merchants may post Call Campaigns through the Service. EVAs may join the Call Campaigns at their own discretion. Upon acceptance, the scope of a EVA’s representation is strictly limited to the matter agreed upon in the Call Campaign. EVA.CO.KE takes every reasonable effort to ensure the privacy of Call Campaigns and other personal messages on our Service, but it cannot guarantee confidentiality. Communications requiring confidentiality should take place outside the EVA.CO.KE Service.
d. Any EVA must ensure that its services are in full compliance with all applicable laws and regulations. EVA.CO.KE does not assume responsibility for ensuring that EVA’s marketing meets applicable legal requirements. Rather, EVA.CO.KE relies primarily on its Merchants to ensure that the marketing is compliant. To the extent that EVA makes any of their own compliance decisions, with the consent of the Merchant, EVA must comply with the law. EVA.CO.KE will not assume any liability if EVA or a Merchant suffers any loss due to an actual or alleged law violation. Notwithstanding the foregoing, EVA acknowledges that EVA.CO.KE has and is taking active steps to ensure the compliance of its vendors and affiliates, including by having EVA agree to these terms and otherwise. Notwithstanding anything contained herein to the contrary, EVA shall indemnify and defend EVA.CO.KE (including for its advocate fees) from and against any actual or alleged Consumer Protection Law violation or other law violation related to EVA’s Services provided hereunder.
e. EVA will properly disposition and honor all opt outs and transmit the same back to the relevant Merchant.
f. EVA will represent the truthful, authorized name of the Merchant when calling on a Merchant’s behalf, and adhere to the script provided by Merchant, so long as the same complies with the law.
g. EVA will at all times act in a professional manner while calling for Merchants and not use profanity, vulgarity, hate speech, or any discriminatory/inflammatory/offensive statements of any kind.
h. To the extent allowed by law, EVA shall at all times be an independent contractor of EVA.CO.KE, and not of the Merchant, and shall not be an employee, co-venturer or co-owner of either. EVA shall take all necessary steps to file appropriate tax returns and will cooperate with Merchant and EVA.CO.KE as necessary to facilitate any necessary filings on EVA’s behalf. EVA will not work more hours than would be permitted for an independent contractor in the jurisdiction in which EVA resides or performs the services.
i. EVA will not request or obtain any sensitive or personal financial or health information, including without limitation any credit card number, unless authorized by law and by the Merchant.
j. EVA certifies that they have truthfully represented all qualifications and experience to EVA.CO.KE, and that they never been convicted of a crime of fraud or dishonesty, or any felony of any kind, within 10 years preceding or during the time in which work is performed for EVA.CO.KE Merchants.
k. EVA will accept, record and transmit to the Merchant, any internal opt-out EVA receives, and shall never call such individual again on behalf of that Merchant.
l. EVA.CO.KE shall not be liable for any accident occurring at EVA location of work.
m. EVA shall refrain from sales misrepresentations and shall accurately describe any product or service offered and shall comply with any applicable mandatory disclosure rules, including without limitation, any scripting or instructions provided by the Merchant, as well as any consumer cancellation rights or refund-related disclosures.
n. EVAs are solely responsible for ensuring that any information they post or place on the Website, or communicate through our Platform including without limitation Calling Tasks, Merchant-Generated Content, and any communications they may have with prospective Merchants through the Website or the Service, fully comply with all applicable laws and rules of professional conduct.
o. EVA shall use commercially reasonable technology to secure any EVA.CO.KE or Merchant data it possesses as part of performing its services.
p. EVA.CO.KE may, in its discretion or if requested by the Merchant, require EVA to take and pass reasonable tests regarding performance, competency and compliance.
q. Work Environment - EVAs acknowledge and agree that neither EVA.CO.KE nor the Merchant will control the work environment in which a EVA will perform services for Merchant. Merchant will be solely responsible for ensuring that the work environment is safe and free from harassment and discrimination as required by applicable law.
r. Payment of EVAs. EVAs who accept and perform Call Campaigns through the Service must receive payment through the Service relating to that Merchant. EVA.CO.KE will terminate an EVA’s access to and use of the Website if such EVA is found to be accepting payment outside the Service for Merchants found through the Service.
s. EVA shall be prohibited from removing/diverting any Merchant away from EVA.CO.KE, directly or indirectly, intentionally or negligently, and shall pay liquidated damages in the amount equal to EVA.CO.KE’s anticipated fees related to that Merchant for the subsequent 10 years.
3. EVA.CO.KE MERCHANTS WHO USE THE SERVICES
a. EVA.CO.KE may cease providing services to any Merchant without cause, or if Merchant is determined by EVA.CO.KE in its sole discretion to have violated any law or any provision herein.
b. Merchant will remain responsible and ensure that all data submitted through EVA.CO.KE to EVAs are compliant. This includes, without limitation, ensuring that Merchant has the proper consent, established business relationship (“EBR”) or other exemption to call the telephone numbers submitted. This also includes ensuring that any scripting submitted, or product offered therein, complies with applicable laws.
c. As applicable by Merchant’s industry, Merchant will maintain standards necessary to comply with all laws and regulations.
d. Merchant will remain responsible for ensuring that its processes and scripts comply with call recording law, timezone (“curfew”) rules, and licensing obligations. Merchant may alter the standard permissible calling hours only at their own risk.
e. Merchant is responsible for compliance with all caller ID and “spoofing” rules, even if Merchant uses an outbound caller ID from EVA.CO.KE or an EVA.
f. Any Merchant who makes use of the Services of EVA.CO.KE or its EVAs must ensure that its products and marketing are in full compliance with all applicable laws and regulations, including without limitation, all county, national and international: (1) product-specific offer regulations; (2) Do-Not-Call (“DNC”) list prohibitions, including by obtaining a SAN and providing that to EVA.CO.KE upon request; (3) licensing and bonding requirements; (4) consumer cancellation rights; (5) wireless calling restrictions; (6) restrictions on the use of automatic telephone dialing systems and pre-recorded messages; (7) opt-out rules; (8) mandatory disclosures (9) intellectual property rights and restrictions; and (10) document retention regulations. Merchant agrees that it has read and understands the Consumer Protection Act 2012 (“CPA”), and all other applicable laws and regulations. Merchant should review these rules with Merchant’s own legal counsel to ensure that Merchant understands and is fully compliant. EVA.CO.KE does not assume responsibility for ensuring that Merchant’s marketing meets applicable legal requirements. Rather, EVA.CO.KE is relying on Merchant and EVA, as the marketing experts, for that expertise. EVA.CO.KE will not assume any liability if EVA or Merchant suffers any loss due to an actual or alleged law violation. Notwithstanding the foregoing, Merchant acknowledges that EVA.CO.KE has and is taking active steps to ensure the compliance of its Merchants, including by having Merchant agree to these terms and otherwise. Notwithstanding anything contained herein to the contrary, Merchant shall indemnify and defend EVA.CO.KE (including for its advocate’s fees) from and against any actual or alleged CPA or other law violation related to the calls or Services provided hereunder.
g. Merchant’s compliance obligation includes, without limitation, refraining from initiating any call, text or message using an autodialer, as defined by the CCK, to send a marketing message to a cell phone or any device where the called party is charged for the call, without prior express written consent. EVA.CO.KE’s system was designed not to be an autodialer, but Merchant assumes all risks related to misinterpretations of the same. Neither EVA.CO.KE, not its Merchants or independent EVAs, shall be permitted to alter or manipulate the calling system in order to add any autodialer features in the future.
h. Merchants’s compliance obligation also includes, without limitation, refraining from initiating any call, text or message for marketing purposes, to any individual on who has expressly requested not to be contacted, without express written consent or an established business relationship, as defined by law.
i. EVA will manually call cell phones, rather than autodial, unless Merchant or its agents have prior express written consent from the called party.
j. Merchant will honor all opt outs if any error is made, Merchant will promptly report the same to EVA.CO.KE.
4. PAYMENTS ON EVA.CO.KE
a. Time Logs are generated automatically when a EVA starts calling on behalf of Merchants and irrevocably authorizes and instructs EVA.CO.KE to (i) create an invoice on behalf of EVA for payment due based upon the seconds recorded on the Time Log. By recording time on a Time Log and allowing an invoice to be created based on that Time Log, EVA represents and warrants that (a) EVA has completed the applicable Services fully and satisfactorily; and (b) the hours reported are true, accurate and complete.
b. Merchant refunds shall only be given in EVA.CO.KE’s sole discretion.
c. Billable seconds may be rounded up by EVA.CO.KE to the nearest minute.
d. Merchant may also pay EVAs a bonus/commission, tip, expense, or other miscellaneous payment, at Merchant’s discretion, using the Site. To pay a bonus to a EVA, Merchant must follow the instructions and links on the Site and provide the information requested. EVA.CO.KE may take a reasonable commission on any such bonused service.
e. Any dispute related to a commission shall be decided in EVA.CO.KE’s sole discretion.
g. EVA.CO.KE provides a multi-currency system that allows Merchants registered with the local versions of the services to pay in a currency other than Kenya Shillings.
h. It is understood that the exchange rate is freely fixed by EVA.CO.KE and may not be contested. It may be revised at any time without the need for a specific communication to Merchants.
i. EVA.CO.KE uses a system of prior purchase of airtime credits that allows the Merchant to order services. The pricing is detailed on the EVA.CO.KE pricing page.
j. Your airtime credits do not have an expiration date are valid and can be used for any type of Campaign.
k. It is not possible to use airtime credits on a site other than EVA.CO.KE or one of its affiliates or partners. Only EVA.CO.KE is authorized to sell the airtime credits used on EVA.CO.KE. Giving airtime credits away or reselling airtime credits is strictly forbidden.
l. It is understood that once purchased, the airtime credits can in no way be converted into money.
m. EVA.CO.KE provides an invoice each time the Merchant purchases airtime credits. This invoice serves as a receipt and will be used as a reference in the event of any potential account-related conflict between EVA.CO.KE and the Merchant.
n. Free call minutes have a validity of 30 days. At the end of this period, airtime credits will lose their value and will be removed from your account. There is no possibility to renew the unused airtime credits after the expiration period.
o. EVA.CO.KE uses a system of payment per rounded minute of effective call, calculated based on the Merchant’s contact lists. The rounded minute is the unit of calculation used on EVA.CO.KE.
p. The EVAs must have a Safaricom M-PESA account in order to receive their earnings. EVA.CO.KE is not responsible for the processing fees charged by Safaricom M-PESA.
6. REGISTRATION; RULES FOR MERCHANT CONDUCT AND USE OF THE SERVICE
a. You need to be at least 18 years to register for and use the Service, or become a EVA.
b. If you are a Merchant who signs up for the Service, will create a personalized account, which includes a unique telephone, email address and a password to access the Service and to receive messages from the Company. You agree to notify us immediately of any unauthorized use of your password and/or account. The Company will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your email address, password and/or account.
7. USE RESTRICTIONS.
a. Your permission to use the Site is conditioned upon the following Use Restrictions and Conduct Restrictions: You agree that you will not under any circumstances:
• post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, ethnically, religiously, or otherwise objectionable and offensive;
• use the service for any unlawful purpose or for the promotion of illegal activities;
• attempt to, or harass, abuse or harm another person or group;
• use another Merchant’s account without permission;
• provide false or inaccurate information when registering an account;
• interfere or attempt to interfere with the proper functioning of the Service;
• make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
• bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology, or device to scrape, spider, or crawl the Service or harvest or manipulate data; or
• publish or link to malicious content intended to damage or disrupt another Merchant’s browser or computer.
8. POSTING AND CONDUCT RESTRICTIONS
a. You are solely responsible for the Merchant Content that you post, upload, link to or otherwise make available via the Service. You agree that we are only acting as a passive conduit for your online distribution and publication of your Merchant Content. The Company, however, reserves the right to remove any Merchant Content from the Service at its discretion.
b. The following rules pertain to Merchant Content. By transmitting and submitting any Merchant Content while using the Service, you agree as follows:
• You are solely responsible for your account and the activity that occurs while signed in to or while using your account;
• You will not post information that is malicious, false or inaccurate;
• You will not submit content that is copyrighted or subject to third party proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from their rightful owner to specifically submit such content; and
c. You understand and agree that any liability, loss or damage that occurs as a result of the use of any Merchant Content that you make available or access through your use of the Service is solely your responsibility. The Company is not responsible for any public display or misuse of your Merchant Content. The Company does not, and cannot, pre-screen or monitor all Merchant Content. However, at our discretion, we, or technology we employ, may monitor and/or record your interactions with the Service.
9. ONLINE CONTENT DISCLAIMER
a. Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by the Company, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. The Company does not guarantee the accuracy, completeness, or usefulness of any information on the Service and neither does the Company adopt nor endorse, nor is the Company responsible for, the accuracy or reliability of any opinion, advice, or statement made by parties other than the Company. The Company takes no responsibility and assumes no liability for any Merchant Content that you or any other Merchant or third party posts or sends over the Service. Under no circumstances will the Company be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Service, or transmitted to Merchants.
10. LINKS TO OTHER SITES AND/OR MATERIALS
a. These links are provided as a courtesy to Service subscribers. The Company has no control over Third Party Sites and Third Party Applications, Software or Content or the promotions, materials, information, goods or services available on these Third Party Sites or Third Party Applications, Software or Content. Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by the Company, and the Company is not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by the Company. If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the site.
11. RESPONSIBILITY FOR CALL RECORDING AND CALL TRANSCRIPTION
a. Please note that EVA.CO.KE automatically records all calls. We however make no representations or warranties with respect to call recording and. You acknowledge that these representations and obligations are essential to the ability of EVA.CO.KE to provide you with access to call recordings and you further agree to indemnify, defend and hold EVA.CO.KE and its officers, directors, owners, employees, agents, consultants and vendors harmless from and against any and all liabilities, losses, claims, damages, causes of action, costs and expenses (including advocates’ fees) that may be incurred by EVA.CO.KE arising out of or related to your acts or omissions in connection with call recordings, whether such claims arise under contract, tort, statute or other legal theory.
12. COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
a. Termination of Repeat Infringer Accounts. The Company respects the intellectual property rights of others and requests that the Merchants do the same. Pursuant to Copyright Act 12 of 2001, the Company has adopted and implemented a policy that provides for the termination in appropriate circumstances of Merchants of the Service who are repeat infringers. The Company may terminate access for participants or Merchants who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
b. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification by sending the following information in writing to the Company’s designated copyright agent at:
Executive Virtual Assistants Limited
PO Box 103635-00101 Nairobi
1. The date of your notification;
2. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
3. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
4. A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
5. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
6. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
7. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
c. (c) Counter-Notices. If you believe that your Merchant Content that has been removed from the Site is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your Merchant Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
1. Your physical or electronic signature;
2. A description of the content that has been removed and the location at which the content appeared before it was removed;
3. A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
4. Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
d. If a counter-notice is received by the Company copyright agent, the Company may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or Merchant, the removed content may (in the Company’s discretion) be reinstated on the Site in 10 to 14 business days or more after receipt of the counter-notice.
13. LICENSE GRANTED TO EVA.CO.KE
a. By posting any Merchant Content via the Service, you expressly grant, and you represent and warrant that you have a right to grant, to the Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such Merchant Content and your name, voice, and/or likeness as contained in your Merchant Content, if applicable, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service.
14. NON-DISCLOSURE, NON-CIRCUMVENT AND INTELLECTUAL PROPERTY
a. “EVA.CO.KE,” “EVA,” “EVAs,” and all related trade and service mar NON-DISCLOSURE, NON-CIRCUMVENT AND INTELLECTUAL PROPERTY ks shall remain the exclusive intellectual property of EVA.CO.KE and neither EVA nor any Merchant may make any use of the same without written authorization from EVA.CO.KE. Merchant trade and service marks shall remain the intellectual property of the Merchant. EVA.CO.KE reserves all rights not expressly granted herein. To the maximum extent allowed by applicable law, EVA and Merchant agree to keep all EVA.CO.KE information strictly confidential and to guard the same and never sell, share or otherwise transmit the same to an unauthorized party. This includes, without limitation, refraining from divulging or using for personal gain, any EVA.CO.KE or Merchant script, prospect or customer list, strategy, software, marketing techniques and the like. Neither EVA nor any Merchant shall circumvent EVA.CO.KE while this agreement is in effect or for a period of at least 1 year thereafter, by working directly with the other without EVA.CO.KE’s written authorization.
15. EMAIL MAY NOT BE USED TO PROVIDE NOTICE
a. Communications made through the Service’s e-mail and messaging system, will not constitute legal notice to the Company or any of its officers, employees, agents or representatives in any situation where notice to the Company is required by contract or any law or regulation. Email is also not guaranteed to be a secure means of communication.
16. MERCHANT CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM
b. We may also use your email address, to send you other messages, including information about the Company and special offers. You may opt out of such email by changing your account settings or sending an email to email@example.com or mail to the following postal address:
Executive Virtual Assistants Limited
PO Box 103635-00101 Nairobi
c. Opting out may prevent you from receiving messages regarding the Company or special offers.
17. WARRANTY DISCLAIMER
a. WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
18. LIMITATION OF DAMAGES; RELEASE
a. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EVA.CO.KE, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR MERCHANT CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH THE COMPANY OR ANY OTHER MERCHANT OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
b. If you have a dispute with one or more Merchants, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.”
19. CLASS ACTION WAIVER
a. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
21. GENERAL TERMS
a. If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of the Company to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
b. You agree that any cause of action related to or arising out of your relationship with the Company must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.