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This Agreement constitutes a legal agreement between you ("you" or "User") and Handy Technologies, Inc. d/b/a Handy and its affiliates, parents, and subsidiaries (collectively, "Handy" or "us"). This Agreement governs your use of our services and platform that facilitates communications between Users offered through our website located at www.handy.com, as it may be modified, relocated and/or redirected from time to time (the "Site"), and the mobile applications offered by us (the "Apps"). Our services, platform, Site and Apps are collectively referred to as the "Handy Platform".
By accessing, using or registering with the Handy Platform or any portions thereof, you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as we may publish from time to time. Please read this Agreement carefully. If you do not agree to accept and be bound by this Agreement, you must immediately stop using the Handy Platform. Handy's acceptance is expressly conditioned upon your assent to this Agreement in its entirety. If this Agreement is considered to be an offer by us, acceptance is expressly limited to this Agreement.
By using the Handy Platform, you represent and warrant that: (i) you are at least 18 years old, are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
- Your agreement that either party may compel binding arbitration for most types of disputes, and your agreement to submit to an informal dispute resolution process for at least 30 days prior to the initiation of any claim (Section 19).
- Your agreement that no claims can be adjudicated on a class basis (Section 19).
- Your agreement that the Handy Platform is provided "as is" and without warranty (Section 17).
- Your agreement that the Handy Platform is solely a communications platform providing a method for Professional Services to be booked, that all Professional Services are performed by third parties, and that Handy has no liability for any Professional Services or any acts or omissions of third parties (Sections 1 and 17), with the exception of Handy's Happiness Guarantee (Section 3(d)).
- Your acknowledgment of and agreement to pay Handy's Trust and Support Fee that will be applied to each appointment of a Professional Service paid through the Handy Platform (Section 3(f)).
- Your acknowledgment of and agreement to Handy's cancellation policies and cancellation fees (Section 4).
- Your agreement to release Handy from liability based on claims relating to Services and otherwise (Section 17) and your agreement to the limitation of time within which a claim can be brought (Section 22).
- Your agreement to indemnify Handy from claims due to your use, misuse or inability to use the Handy Platform, the Merchandise and/or Professional Services, your violation of this Agreement, applicable laws or third party rights, and/or content or information submitted from your account to the Handy Platform (Section 18).
- Handy’s sole liability with respect to disputes between Users is set forth in the Handy Happiness Guarantee (Section 3(d)). Home Improvement Referrals (as described in Section 3(g)) are NOT covered by the Handy Happiness Guarantee.
- Your agreement that Handy's Happiness Guarantee is limited to only Payments paid by Requesters through the Handy Platform for Professional Services that are booked and paid through the Handy Platform, and does NOT apply to Home Improvement Referrals or any Professional Services obtained from such Home Improvement Referrals.
1. The Handy Platform is Solely a Venue for Communications; Background Checks.
a. The Handy Platform is Solely a Venue for Communications. The Handy Platform is a communications platform for enabling the connection between individuals seeking to obtain services ("Requesters") and/or individuals and entities seeking to provide services ("Professionals"). Requesters and Professionals together are referred to as "Users". Those certain services requested by the Requesters, which are to be completed by the Professionals, are hereinafter referred to as "Professional Services". Professional Services also include Professional Services that are requested through Home Improvement Referrals, which are described further in Section 3(g) below. The Professional Services may include the delivery, installation and/or assembly of furniture and/or other items obtained through the Handy Platform or from a third party (“Merchandise”), but shall not be deemed to include the Merchandise itself. Handy does not itself provide Professional Services or Merchandise. The provision of all Professional Services is up to the Professionals, which may be scheduled through use of the Handy Platform. HANDY, THROUGH THE HANDY PLATFORM, OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH PROFESSIONAL SERVICES AND/OR MERCHANDISE, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE SUCH PROFESSIONAL SERVICES OR MERCHANDISE ITSELF OR ACT IN ANY WAY AS A RETAILER OR MANUFACTURER, OR AS A CLEANING, HANDYMAN, OR OTHER HOME-RELATED OR MOVING-RELATED SERVICE PROVIDER, AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY PROFESSIONAL SERVICES AND/OR MERCHANDISE PROVIDED TO THE REQUESTER, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE. HANDY IS NOT AFFILIATED WITH, ENDORSED OR SPONSORED BY ANY THIRD PARTY MERCHANDISE PROVIDER OR RETAILER.
b. Background Checks and Licensing. HANDY CHECKS THE BACKGROUNDS OF PROFESSIONALS VIA THIRD PARTY BACKGROUND CHECK SERVICES; PROVIDED, HOWEVER, FOR PROFESSIONALS THAT ARE REQUESTED THROUGH HOME IMPROVEMENT REFERRALS AND FOR PROFESSIONALS THAT ARE ENTITIES THE BACKGROUND CHECK IS LIMITED TO THE OWNER/PRINCIPAL OF THE COMPANY. However, each Requester should exercise caution and common sense to protect its personal safety and property, just as you would when interacting with any person whom you do not know. Certain states may require state-level licensing for projects above specified dollar amounts. We recommend you confirm these licensing requirements with the business and the applicable state and local licensing authorities. In some states, licensing may be required by the county or local authority in which the work is being performed. We recommend you confirm these licensing requirements before proceeding with your project. We always recommend that you ask the Professional to provide you with a copy of their license. HANDY PERFORMS SCREENING SOLELY AT THE TIME THE PROFESSIONAL APPLIES TO REGISTER ON THE HANDY PLATFORM. HANDY CANNOT AND DOES NOT WARRANT OR REPRESENT THAT A PROFESSIONALS’ PROFILE AND BACKGROUND CHECK SCREENING INFORMATION IS UP TO DATE. HANDY IS UNDER NO OBLIGATION TO UPDATE A PROFESSIONAL'S BACKGROUND CHECK OR PROFILE. BY USING THE HANDY PLATFORM, THE REQUESTER AGREES TO HOLD HANDY FREE FROM THE RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF THE PROFESSIONAL SERVICES. HANDY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING PROFESSIONALS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY PROFESSIONAL SERVICES.
2. Personal Information; User Accounts.
b. Account, Password and Security. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any username, password and account provided by you or us for accessing the Handy Platform. You are solely and fully responsible for all activities that occur under your password or account, except that Handy may, in certain circumstances, access your account to make changes that you request, such as rescheduling a Service appointment. Handy has no control over the use of any User's account by the User or third parties and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you must contact us immediately at www.handy.com/help. Nothing in this section shall affect Handy's rights to limit or terminate the use of the Handy Platform, as provided below in section 4(b).
c. Proof of Identity. You will provide us with such proof of identity as we may reasonably request from time to time.
d. Text Messages and Phone Calls. By using the Handy platform, you expressly consent and agree to accept and receive communications from us, including via fax, text (SMS) messages, calls, push notifications and other reasonable means at any of your contact numbers or addresses, even if you are listed on any federal, state, provincial or other applicable "Do Not Call" list, in order that we may provide the services set forth on the Handy Platform, to service your account, to reasonably address matters pertaining to your account, including but not limited to notifying you of, or confirming, appointments that you have scheduled, or for other purposes reasonably related to your service request and our business, including marketing related emails. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. By consenting to being contacted by Handy, you understand and agree that you may receive communications, including marketing communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages, sent by or on behalf of Handy, its affiliates, subsidiaries, parents and/or Users/Professionals, including but not limited to: operational communications concerning your account or use of the Handy Platform or Services, updates concerning new and existing features on the Handy Platform, communications concerning promotions run by us, and news concerning Handy and industry developments. For certain Professional Services, you also expressly authorize Handy to send you an automated prerecorded call confirming your Professional Services request, along with calls from up to four Professionals that can help you with your request to the land-line or mobile phone number you provided, and you understand that either Handy or the Professionals may use automated phone technology (including autodialed and prerecorded messages) to call you and that your consent is not required to purchase products or services. You agree that by using the Handy Platform and requesting Professional Services, you are entering into a business relationship with Handy and/or Professionals and thus agree to be contacted by Handy and/or Professionals. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the Handy Platform or the Services. If a contact number you have provided to us is no longer your number, you agree to notify us promptly that you can no longer be reached at that number. You represent that you have received, and are authorized to convey to us, the consent of any authorized users on your account to be contacted by us as described in this Section. You agree that all consents provided in this Section will survive cancellation of your account. You may opt-out of receiving promotional or marketing texts or calls from Handy at any time. You may opt-out of receiving all text (SMS) messages from Handy (including informational or transactional messages) by replying with the word “STOP” to a text message from us; however you acknowledge that opting out of receiving all texts may impact your use of the Handy Platform or the Services. You also acknowledge that Handy or its third party service providers may record customer service calls after notice to you and with your consent, in order to assist you when you contact our customer support services. You agree to Handy’s use of a service provider to mask your telephone number when you call or exchange text (SMS) messages with a Professional or Requestor using a telephone number provided by Handy. During this process, Handy and its service provider will receive in real time and store call data, including the date and time of the call or text (SMS) message, the parties’ phone numbers, and the content of the text (SMS) messages. You agree to the masking process described above and to Handy’s use and disclosure of this call data for its legitimate business purposes.
TO KNOWINGLY INPUT FALSE INFORMATION, INCLUDING BUT NOT LIMITED TO NAME, PHONE NUMBER, ADDRESS OR E-MAIL ADDRESS IS A VERY SERIOUS AND FRAUDULENT MATTER THAT COULD RESULT IN SIGNIFICANT COSTS AND DAMAGES INCLUDING INVASION OF PRIVACY RIGHTS, TO HANDY AND THE PROFESSIONALS, AND TO CONSUMERS, AS WELL AS THE LOSS OF TIME, EFFORT AND EXPENSE RESPONDING TO AND PURSUING SUCH FALSE INFORMATION AND REQUEST, AND FURTHER, COULD RESULT IN REGULATORY FINES AND PENALTIES. ACCORDINGLY, IF YOU KNOWINGLY INPUT FALSE INFORMATION IN A SERVICE REQUEST, INCLUDING BUT NOT LIMITED TO SOME ONE ELSE'S NAME, E-MAIL ADDRESS, PHYSICAL ADDRESS OR PHONE NUMBER OR A RANDOM OR MADE UP NAME, ADDRESS, E-MAIL OR PHONE NUMBER YOU AGREE TO FULLY INDEMNIFY AND BE LIABLE TO HANDY AND EACH PROFESSIONAL WHO PROVIDES SUCH PROFESSIONAL SERVICES, FOR THE GREATER OF: (1) A MINIMUM AMOUNT OF $11,000 TO EACH OF HANDY AND EACH OF THE AFFECTED PROFESSIONALS AND FOR EACH OF THE ACTUAL PERSON(S) AFFECTED BY ANY OF THE IMPROPER, INCORRECT OR FRAUDULENT INFORMATION YOU ENTER (FOR EXAMPLE THE ACTUAL OWNER OF THE E-MAIL ADDRESS OR PHONE NUMBER, ETC.), PER IMPROPER SUBMISSION, PLUS ANY ATTORNEYS FEES COSTS AND EXPENSE RELATING THERETO, IF APPLICABLE, OR (2) THE ACTUAL DAMAGES, DIRECT, PUNITIVE AND CONSEQUENTIAL, AND ANY REGULATORY OR JUDICIAL FINES OR PENALTIES THAT MAY ARISE FROM SUCH INTENTIONAL, MISLEADING, HARMFUL AND FRAUDULENT ACTIVITY, PLUS REASONABLE LEGAL FEES, COST AND EXPENSES RELATING THERETO, WHICH EVER IS GREATER.
e. Emails. Handy may send you confirmation and other transactional emails regarding the Professional Services. Handy and its affiliates, subsidiaries, parents may also send you emails about other services that we think might interest you ("Promotional Emails"). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting us.
3. Payments; Handy Happiness Guarantee; Claims.
a. Payments. Users of the Handy Platform contract for Professional Services directly with other Users. Handy is not a party to any contracts for Professional Services. The Handy Platform facilitates these contracts by supplying a medium through which Requesters can connect with Professionals, schedule certain Professional Services, and make payments for certain Professional Services ("Payments"). Requesters are obligated to pay in advance for those Professional Services and/or Merchandise they order through the Handy Platform. Prior to the scheduled Professional Service, we will charge the Requester's credit card according to the amount the Requester has agreed to on the Handy Platform with respect to those Professional Services and/or Merchandise, the Requester has ordered, and for all purchases and payments for reimbursement costs, fees or expenses associated with a Professional Service as well as the Trust and Support Fee (as defined in 3(f) below), and the Requester hereby authorizes us to charge the credit card on file in the Requester's Handy Platform account for such amounts. We will use third party services to process credit card information. By accepting this Agreement, you are giving Handy (or a third-party payment processor on Handy’s behalf) permission to charge your on-file credit card, debit card, or other approved methods of payment for fees that you owe Handy. Depending on the transaction you selected or services requested, Handy may charge you on a one-time or recurring basis. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Professional Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with Handy at the prices in effect when such charges are incurred. We retain the right, in our sole discretion, to place a hold on the Requester's credit card for an ordered or completed Professional Service transaction. Seventy-two (72) hours after a Professional Service is completed, if there is no complaint by the Requester, we will mark the Professional Service as closed. If the Requester has agreed with the Professional to extend or reduce the hours in or to reschedule a requested Professional Service, the Requester bears the responsibility for notifying Handy. Requesters must notify Handy either by changing the date or hours of the requested Professional Service through the Handy Platform or by visiting the Handy Help Center at www.handy.com/help. Except for Professional Services that are requested through Home Improvement Referrals, all Payments by Requesters must be made through the Handy Platform. Any Professional Services that are requested through Home Improvement Referrals, any Payments paid, or any Professional Services scheduled or obtained outside of the Handy Platform are not subject to our Handy Happiness Guarantee in Section 3(d). Except for the Handy Happiness Guarantee in Section 3(d), and the Refund Policy in Section 3(e), no refunds or credits will be provided once the Requester's credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made. While we will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. Requesters will be liable for all transaction taxes on the Professional Service(s) provided (other than taxes based on Handy's income). If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Handy or third parties, then Handy may withhold any payments to you for as long as we determine any related risks to Handy or third parties persist. For any amounts that we determine you owe us, we may (i) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (ii) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (iii) reverse any credits to your bank account; or (iv) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate this Agreement, then we may in our sole discretion permanently withhold any payments to you.
b. Job Rate. The rate per hour for a Professional Service ("Job Rate") depends on factors, such as location and how frequently a Recurrent Service is ordered, and payment terms may increase. Therefore, the same Professional Service may cost more in a different location or if the Professional Service is ordered less frequently. However, you will be notified prior to any such payment increase with sufficient notice to enable you to cancel the Recurrent Service as set forth herein.
c. Recurrent Service. When requesting certain Professional Services, Requesters may have the option of choosing that the Professional Service be repeated on a regular basis ("Recurrent Service"). For example, a Requester may choose that a cleaning be performed every two weeks. When a Requester chooses a Recurrent Service, the Handy platform will automatically schedule that Recurrent Service to occur on future dates indefinitely at the frequency requested by Requester. Requester's credit card will be charged the same non-promotional amount, as originally disclosed to Requester at the time of signing up for Recurrent Service for the Recurrent Service as the Professional Service appointments occur and for any applicable cancellation fees. Handy cannot guarantee that the same Professional will be available for each Recurrent Service appointment or that Recurrent Service appointments will not be canceled. Requesters may cancel the Recurrent Service at any time by visiting the Handy Help Center at www.handy.com/help or by mailing a notice of cancellation to Handy Technologies, Inc. Attn.: Legal, PO Box #1122, New York, NY 10159. Requesters must cancel more than twenty-four hours prior to the Professional Service in order to avoid being charged any cancellation fees and/or for the next Professional Service. After signing up for a Recurrent Service, you will be provided an email acknowledgment which includes information on how to cancel
d. Handy Happiness Guarantee.
i. The Handy Happiness Guarantee provides certain limited additional protections for Professional Services. Pursuant to the Handy Happiness Guarantee and subject to the below exclusions and the terms and conditions and limitations herein, Handy will compensate Requesters the lowest amount of: (a) subject to the exclusions below, up to USD $5,000 per occurrence for losses arising from property damage as a direct result of negligence of a Professional during performance of a Professional Service or (b) up to USD $1,000 for losses arising from damage to floors and items containing granite, marble or any other stone work as a direct result of negligence of a Professional during the performance of a Professional Service the amount shall be limited to up to USD $1,000; or (c) up to USD $5,000, in the aggregate, for losses arising from theft of a Requester’s property by a Professional during performance of a Professional Service. The Service Requester is eligible for the Handy Happiness Guarantee provided that the Requester reports the issue within seventy-two (72) hours of the Professional Service appointment to our Requester service by visiting the Handy Help Center at www.handy.com/help. If the Service Requester does not report the issue within seventy-two (72) hours of the Professional Service appointment, the claim is ineligible for the Handy Happiness Guarantee. For Recurring Services, each Professional Service is treated as a separate occurrence.
ii. If you carry insurance that would cover you in the event of a claim, such as renter’s insurance, homeowner’s insurance, automobile insurance or an umbrella policy (“Personal Insurance”), You agree that your Personal Insurance is primary and the Handy Happiness Guarantee is secondary. The Handy Happiness Guarantee will only compensate for losses to the extent not otherwise covered by your Personal Insurance and only as permitted herein.
iii. A Requester will be covered under the Handy Happiness Guarantee for a Professional Service, subject to the exclusions in subsection (v) below, provided:
- The Professional Service is agreed to between a Requester and a Professional using the Handy Platform, performed by the Professional hired by the Requester and paid for in full through the Handy Platform;
- The Requester has not violated this Agreement;
- The Requester has reported the claim within 72 hours of the Professional Service;
- The Requester's Handy account is in good standing with no outstanding balances owed to Handy;
- The Requester has identified fragile and other breakable items and communicated the location and identity of those items to the Professional prior to the start of the Professional Service; and
- The Requestor has accounted for and secured all valuables prior to the start of a Professional Service.
iv. What is excluded from the Handy Happiness Guarantee? The “Handy Happiness Guarantee” does not cover the following:
- Professional Services that are requested through Home Improvement Referrals;
- Any Professional Service that is not booked and paid for directly on the Handy Platform;
- losses arising out of acts of nature, including, but not limited to, pollution, earthquakes and weather related events such as hurricanes and tornadoes;
- losses arising out of interruption of business, loss of market, loss of income and/or loss of use;
- losses for property damage and theft exceeding the original value and/or replacement value for such property, less any standard depreciation;
- losses arising from the acts or omissions of a Requester or third party;
- losses arising from the negligence or misconduct of a third party;
- losses arising from a manufacturer’s or a product’s defects;
- losses from pre-existing damages or conditions of the item or property;
- losses arising from items supplied by the Requester or due to Requester recommendations (e.g., if a manufacturer recommends affixing furniture to a wall and a Requester declines to have furniture affixed, etc);
- losses arising from flooding and/or water damage including mold, fungi or bacteria;
- losses arising from products containing hazardous or harmful materials, acts of terrorism, product liability, or pollution;
- losses of cash, third party gift cards, and securities;
- losses as a result of an intentional wrongful act by a Professional;
- losses arising from normal wear and tear;
- losses for items that retain their functionality; (e.g., minor cosmetic damage, ordinary wear and tear, a t.v. that has a scratch on the bezel);
- losses for fine arts, which includes but is not limited to paintings, etchings, printed photos, pictures, tapestries, rare or art glass, art glass windows, valuable rugs, statuary, sculptures, antique furniture, antique jewelry, bric-a-brac, porcelains, antique automobiles, coins, stamps, other collectibles, collections, furs, jewelry, precious stones, precious metals, and similar property of rarity, historical value;
- losses for damage beyond the specific damaged area (e.g., should flooring sustain damage, any loss is limited to the replacement cost of the square footage that was damaged after deducting for obsolescence and physical depreciation);
- loss of use damages, including without limitation, loss of use such as property, furniture and the costs of any storage, movement and insurance of furniture in connection with loss of use;
- losses excluded pursuant to Section 17 of the Agreement;
- losses based on sentimental and/or undocumented intangible value;
- losses or damages associated with the unauthorized acquisition of, access to, destruction of, and/or loss of electronic data, including but not limited to films, records, manuscripts, drawings or photographs, data, information, audio or video recordings, files, facts, programs or other materials stored as or on, created or used on, or transmitted to or from, computer software, including systems and applications software, hard or floppy disks, CD-ROMs, tapes, drives, cells, data processing devices, cloud storage, or any other media which are used with electronically-controlled equipment;
- losses related to repairs outside of the area where the Professional Services were performed;
- losses of pets, personal liability or damage to shared or common areas;
- losses arising from shipping costs and/or shipping of replacement items and/or taxes incurred in purchasing the original and/or replacement items;
- losses of theft without a valid police report, if requested by Handy; and losses with insufficient documentation; and
- losses occurring after, or unrelated to, the performance of a Professional Service;
- losses involving products or services, or uses of either, that are prohibited by law;
- losses due to unforeseeable or latent defects in the premises;
- losses related to services not explicitly booked through the Handy Platform; and
- losses reported by third parties
v. How do I submit a Claim? First report of a claim must be made within 72 hours from when the Professional Service occurs. After the first report, you will be asked to complete the full claim form within 7 days of receipt. If you do not complete the claim form in its entirety within 7 days of receipt, your claim will no longer be eligible for the Handy Happiness Guarantee. We urge you to read through these terms and conditions prior to submitting a claim. All claims will be reviewed on a case-by-case basis. During Handy's claims assessment process, you may be required to provide written detailed: (1) proof of ownership of damaged/missing item; (2) proof of value of damaged/missing item; and (3) proof of damage or loss. If such information is requested, you will have 30 days from the date of the request to send Handy the requested information. If you fail to provide the requested information within the 30 day time period and/or fail to contact Handy to arrange for an extension of time, Your claim will be considered closed and no longer eligible for the Handy Happiness Guarantee. You also agree to: (A) protect and preserve any damaged property that is the basis of a claim from further damage; (B) assist and allow Handy or its insurers access to inspect and make copies, photographs and recordings of anything relating to the claim; (C) accept repairs and/or remediation by a Professional; (D) accept a replacement only if repairs are proven not to be an option; (E) submit requested materials by the dates outlined by the Handy resolutions team; and (F) accept a replacement item subject to the standard depreciation of that item. If any part of Your claim is approved, then as a condition to any payment to You under the Handy Happiness Guarantee, You will be required to execute and deliver to Handy the release agreement within 14 days of receipt of the release agreement from Handy, and assign to Handy or its insurer any rights and remedies you may have to recover amounts paid to you with respect to an approved claim from any party that is financially responsible for the approve claims and any rights in any property that is recovered. The release agreement shall be rescinded and considered null and void if not signed and returned to Handy within 14 days of Your receipt and the claim shall no longer shall be eligible for the Handy Happiness Guarantee.
e. Handy Merchandise Refund Policy.
i. If you decide that you do not want the Merchandise before it has been unpacked or opened, the Merchandise is broken, defective or otherwise damaged, or if the Merchandise you ordered does not fit into your home or your building refuses entry, you should contact the third party manufacturer or distributor, as applicable, of the Merchandise for a potential refund; provided, however, that Handy shall not refund the cost of the Professional Services. Handy shall not be responsible for any payment to you if you are unable to obtain a refund or replacement for the Merchandise from the third party manufacturer or distributor, as applicable, of the Merchandise.
ii. If any Merchandise is broken only in the course of performing the Professional Services, Handy will remove and replace the broken Merchandise (or, where applicable, the broken component of the Merchandise) and re-perform the applicable Professional Services at no additional cost to you (provided, however, that Handy shall not refund the cost of the Merchandise or refund the cost of the Professional Services, except as set forth in 3(d) above).
f. Handy Trust and Support Fee Handy may assess an additional "Trust and Support Fee" to support the Handy Platform, including costs related to background checks, insurance, customer support, and related services provided to you by the Handy Platform. The Trust and Support Fee will be applied to each appointment of a Professional Service requested through the Handy Platform (e.g., if you requested a Recurring Service, a Trust and Support Fee may be assessed on each Recurrent Service appointment). The amount of the Trust and Support Fee may vary but shall be retained by Handy in its entirety.
g. Home Improvement Referrals. Handy (through its affiliate, HomeAdvisor), provides Profinder and Instant Connect services, as described more fully below. Both Profinder and Instant Connect services as well as any other services offered by HomeAdvisor are “Home Improvement Referrals”. Information regarding the screening for Professionals that provide Professional Services that are requested through Home Improvement Referrals is located here.
i. ProFinder. Upon entering your information and the request for which you would like a Professional, we will attempt to match you with up to four Professionals in your area, who may be interested in fulfilling your service need. However, we do not guarantee that we will be able to match your service needs with a Professional or that there are Professionals in your area that are either capable or willing to complete your service needs.
ii. Instant Connect. Professional by phone immediately. If you request, we will search for a Professional and connect you with them by phone.
iii. For the Professionals that provide Professional Services that are requested through Home Improvement Referrals, we make no guarantees, warranties or representations regarding the skills or undertakings of such Professional or the quality of the job that he or she may perform for you if you elect to retain their services. We do not endorse or recommend the services of any particular Professional. It is entirely up to you to evaluate the Professional and the Professional's qualifications, and to enter into a direct contract or otherwise reach agreement with a Professional. We do not guarantee or warrant any Professional's performance on the job or the outcome or quality of the services performed. The Professionals are not employees or agents of Handy or HomeAdvisor, nor is Handy or HomeAdvisor an agent of the Professionals.
iv. We may inform you of certain offers or discounts provided by a Professional that provides the Professional Services that are requested through Home Improvement Referrals. Such offers or discounts are made solely by the Professional, and we do not guarantee or warrant the pricing or discounts that a Professional may offer you. Any quotes provided by Professionals for Professional Services that are requested through Home Improvement Referrals are not contractually binding offers, are for informational purposes only, and cannot be accepted on or via us. No contractual arrangement is created based upon the quotes provided to you from Professionals (or your scheduling of an appointment with a Professional) via us for Professional Services that are requested through Home Improvement Referrals. To contract with a Professional, you must work directly with the Professional. We do not perform, and is not responsible for, any of the Services requested by you in your service request. Your rights under contracts you enter into with Professionals are governed by the terms of such contracts and by applicable federal, state, provincial and local laws. We are not a party to such agreements. All payments and applicable taxes must be made to the Professional in accordance with the agreements.
4. Term and Termination; Cancellation of Professional Services; Minimum Commitment; Membership; Survival.
a. Term. This Agreement shall continue in full force and effect until such time as it is terminated by you or by us.
b. Termination by Handy. We may terminate this Agreement or terminate or suspend your right to use the Handy Platform at any time for any or no reason (including, without limitation, in the event that we believe that you have breached this Agreement or any policy posted on the Handy Platform, or if we otherwise find that you have engaged in inappropriate and/or offensive behavior (collectively, "Prohibited Conduct") by providing you with written or email notice of such termination to the physical or email address you have provided us, and termination will be effective immediately upon such notice. Except in the event that we terminate or suspend your right to use the Handy Platform due to any Prohibited Conduct, we will refund in full any payments for Professional Services that have not been performed or completed. If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. When terminating your account, Handy may delete the account and all the information in it. You have no ownership rights to your account.
c. Termination by You. You may terminate this Agreement by completely and permanently ceasing to use the Handy Platform (provided that there are no outstanding Professional Services ordered under your password or account) and by closing any account you have opened on the Handy Platform. If you attempt to terminate this Agreement while there are still outstanding Professional Services ordered under your password or account, this Agreement shall not terminate until such Professional Services have been performed or otherwise canceled as permitted by Handy.
d. Cleaning Plan with a Minimum Commitment.
(i) Minimum Commitment Plan Term: If you have selected a Professional Services cleaning plan with a minimum commitment, your minimum commitment plan term commences on the date of your first appointment.
(ii) Minimum Commitment Plan Cancellation Fee: If you have selected a Professional Services cleaning plan with a minimum commitment, you will be subject to and charged a cancellation fee up to USD $150 in the US should you elect to terminate the Professional Services cleaning plan prior to the expiration of your minimum commitment period.
(iii) Rescheduling Cleaning Plan appointments during the Minimum Commitment Period: If you have selected a Professional Services cleaning plan with a minimum commitment, you can reschedule any cleaning plan appointment for free at least 24 hours in advance of the scheduled start time, provided such rescheduled appointment will occur within the minimum commitment period. If you reschedule between 2-24 hours before a scheduled Professional Service appointment, you will be charged a USD $15 fee. If you reschedule during the 2 hours before a scheduled Professional Service appointment, you will be charged the full Professional Service amount. If you skip any cleaning plan appointment within the minimum commitment period or reschedule any cleaning plan appointment within the minimum commitment period to outside of the minimum commitment period, your credit card will be charged for the amount of the appointment and in addition, your account will be credited the amount you are charged. Such merchandise credit will be available for your use during the minimum commitment period only as a merchandise credit to use to book one-off replacement cleaning appointments or handyman appointments, and after the minimum commitment period ends, you may apply such merchandise credits to cleaning appointments and handyman appointments. No monetary refunds will be provided for cleaning plan appointments that are skipped within the minimum commitment period or any cleaning plan appointment within the minimum commitment period that is rescheduled to outside of the minimum commitment period. In addition to the foregoing, if you skip any cleaning plan appointment between 2-24 hours before a scheduled appointment, you will also be charged an additional USD $15 cancellation fee and if you skip any cleaning plan appointment during the 2 hours before a scheduled appointment, you will be charged the full amount of the appointment, and will not be eligible for any credit.
(iv) Expiration of Cleaning Plan with Minimum Commitment. Once your minimum commitment period is complete, your selected plan will remain active and the Handy Platform will automatically schedule Professional Service appointments to occur on future dates indefinitely at the frequency requested by you and will charge your credit card based on your selected time and frequency. You may cancel your plan in accordance with the cancellation policy set forth in 4(e) below.
e. Cancellation Policy for Service Cancellation by Requester of Cleaning Plans without a Minimum Commitment, Cleaning Plans after completion of the Minimum Commitment period and One-Time Professional Service appointments. Handy's cancellation policy (found at www.handy.com/help) for specific Professional Services is as follows: Requesters may cancel their scheduled Professional Service appointments through the Handy Platform at any time, subject to the following conditions: (i) if a Requester cancels more than 24 hours before a scheduled Professional Service appointment, there is no cancellation fee; (ii) if a Requester cancels between 2-24 hours before a scheduled Professional Service appointment, the Requester will be charged a $15 cancellation fee; and (iii) if the Requester cancels during the 2 hours before a scheduled Professional Service appointment, the Requester will be charged the full Professional Service amount. This cancellation policy applies both for one-time Professional Service bookings and for recurring Professional Service appointments. A Professional Service appointment may be canceled through the Handy Help Center at www.handy.com/help or by mailing a notice of cancellation to Handy Technologies, Inc. Attn.: Legal, PO Box #1122, New York, NY 10159.
f. Handy Select.
(i) Membership: Handy may from time to time offer Requesters the opportunity to purchase one-time cleaning Professional Services provided the Requester first agrees to purchase an annual or monthly Handy Platform Select Membership (“Handy Select”).
(ii) Billing and Renewal: When you first sign up and purchase Handy Select, you will be billed immediately for your initial Handy Select subscription period. By enrolling in Handy Select, in addition to any Professional Services you purchase through Handy Select, you authorize Handy to charge you for your initial Handy Select subscription period and a recurring annual or monthly membership at the then current rate, which may change from time to time. Your Handy Select will automatically renew and prior to the start of the next subscription period, you will be charged the applicable Handy Select fee to your provided payment method on a recurring basis until canceled as set forth herein.
UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT YOUR HANDY SELECT TO AUTO RENEW, YOU UNDERSTAND THAT YOUR HANDY SELECT WILL AUTOMATICALLY CONTINUE AND YOU AUTHORIZE HANDY (WITHOUT NOTICE TO YOU UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN APPLICABLE MEMBERSHIP FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
(iii) Cancellation Fees: The cancellation and rescheduling of any cleaning Professional Service while you are enrolled in Handy Select is subject to the cancellation policy, including the payment of any cancellation fees, as further described in Section 4(e) above.
(iv) Declination of Payment: If an eligible payment method Handy has on file for you is declined for payment, you must provide us with a new eligible payment method promptly or your Handy Select will be canceled. If you provide us with a new eligible payment method and are successfully charged, your Handy Select period will be based on the original enrollment or renewal date and not the date of the successful charge.
(v) Cancellation of Handy Select: You will not be charged a Handy Select fee for the subsequent period if you cancel your Handy Select at least three days before your next Handy Select renewal date. You may cancel your Handy Select by visiting the Handy Help Center at www.handy.com/help or by mailing a notice of cancellation to Handy Technologies, Inc. Attn.: Legal, PO Box #1122, New York, NY 10159. Following cancellation of your Handy Select you will continue to have access to your Handy Select through the end of your current paid Handy Select period. Should you cancel your Handy Select, Handy reserves the right to cancel any Professional Service appointments scheduled outside the current paid Handy Select period.
(vi)Handy Select Refunds: The Handy Select fees are nonrefundable except as only permitted pursuant to this subsection (vi). Subject to the following sentence, if you cancel your purchase of Handy Select within three days of (1) signing up for Handy Select or (2) converting from a free Handy Select trial to a paid Handy Select, we will refund your Handy Select fee. Notwithstanding the preceding sentence, you are not eligible for any refund of the Handy Select fee (a) if you purchased Handy Select prior to the expiration of the minimum commitment period of a Professional Services cleaning plan with a minimum commitment or (b) if you have used your Handy Select membership to purchase any Professional Services.
(vii)Membership Plans/Promotional Trial Memberships: Handy sometimes offers certain Requesters various trial or other promotional memberships, which are subject to these Terms except as otherwise stated in the promotional offers.
g.Policy for Service Cancellation by Professional. Except for Professional Services that are requested through Home Improvement Referrals, when a Professional cancels a scheduled Professional Service appointment, the Handy Platform generally notifies the Requester and makes the Requester's Professional Service request available for another Professional to select. However, Handy cannot guarantee that a canceled Professional Service appointment will be selected by another Professional and rescheduled or that the Professional Service request will be completed. For Recurrent Service Requesters, if a Professional Service appointment is canceled by a Professional, Requester will not be charged for that Professional Service appointment. Except for Professional Services that are requested through Home Improvement Referrals, Professionals who cancel a scheduled Professional Service appointment may incur fees as provided in the Service Agreement.
6. Submission Areas. The Handy Platform may contain blogs, message boards, applications, opportunities to provide reviews, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Users to communicate with other Users and with Handy (collectively, "Submission Areas"). Some areas in the Submission Areas within the Handy Platform will be public and Handy will not be responsible for any information or materials posted in such public areas. Handy may, in its discretion, publicly post submissions you submit to a non-public area of the Handy Platform. You may only use Submission Areas to send and receive messages and material that are relevant and proper to the applicable forum and that comply with this Agreement. "Your Information" is defined as any information and materials you provide to us or other Users in connection with your registration for and use of the Handy Platform, including without limitation, information and materials that are posted or transmitted for use in Submission Areas. You are solely responsible for Your Information, and we are merely a passive conduit for your online distribution and publication of Your Information. You hereby represent and warrant that Your Information: (a) will comply at all times with this Agreement, including but not limited to Section 7 (Rules for Use of the Handy Platform) below, and with Section 2 (Personal Information; User Accounts) above; and (b) will not create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers (ISPs), customers, or other partners or suppliers. You hereby grant us a non-exclusive, transferable, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all of Your Information that is posted to Submission Areas from or through your account on the Handy Platform, including but not limited to all images, videos, musical works and text included in such postings and to such other persons and/or entities as Handy may designate. The rights you grant in this license are for the limited purpose of operating, advertising, marketing, promoting, and improving the Handy Platform. We reserve the right to remove postings from Submission Areas in our sole discretion.
7. Rules for Use of the Handy Platform. During the term of this Agreement, Requesters may use the Handy Platform for your personal use only (or for the use of a person, including a company or other organization that you validly represent). Requesters may use the Handy Platform to request Professional Services solely with respect to a location where the Requester is legally authorized to have Professional Services performed. Requesters may not use the Handy Platform for any other purposes or in connection with any commercial endeavors whatsoever without our express prior written consent. Requesters agree that an order for Professional Services is an offer, which is only accepted when the Requester receives a confirmation of the order. Requesters agree to treat Professionals courteously and lawfully, to provide a safe and appropriate working environment for them that is in compliance with all applicable laws and regulations, and to provide reasonable co-operation to Professionals to enable them to supply Professional Services. Requesters agree to comply with our complaint and other policies designated on the Site. Requesters acknowledge that their selected Professional may be unavailable from time to time. Professionals agree to provide Professional Services in accordance with all applicable laws and regulations and with the Service Agreement. You shall NOT use the Handy Platform (including but not limited to any Submission Areas) to do any of the following:
a. Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
b. Upload files that contain software or other material that violates the intellectual property rights or rights of privacy or publicity of any third party.
c. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including but not limited to our staff and other Users.
d. Post a review or rating unless such review or rating contains your independent, honest, genuine opinion.
e. Use the Handy Platform or any Professional Service for any purpose or in any manner that is in violation of local, state, national, or international law.
f. Publish, post, upload, distribute or disseminate any profane, defamatory, false, misleading, fraudulent, threatening or unlawful topics, names, materials or information, or any materials, information or content that involve the sale of counterfeit or stolen items.
g. Advertise or offer to sell any goods or services for any commercial purpose or solicit employment or contract work which is not relevant to services offered through the Handy Platform. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to Professional Services facilitated through the Handy Platform without express written permission from us.
h. Use the Handy Platform to collect usernames and/or email addresses of members by electronic or other means without our express prior written consent.
i. Conduct or forward surveys, contests, pyramid schemes, or chain letters.
j. Impersonate another person or allow any other person or entity to use your identification to post or view comments or otherwise use your account.
k. Post the same note repeatedly (referred to as 'spamming'). Spamming is strictly prohibited.
l. Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the Handy Platform, or post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
m. Restrict or inhibit any other User from using and enjoying the Handy Platform.
n. Imply or state that any statements you make are endorsed by us, without our prior written consent.
o. Reverse engineer, disassemble, decompile, translate, modify, adapt, license, sublicense, alter, copy, distribute, hack or interfere with the Handy Platform, its servers or any connected networks, use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Handy Platform in any manner, or attempt to do any of the foregoing.
p. Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
q. Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
r. Upload content that provides materials or access to materials that are obscene, adult or sexual or that exploit anyone, and in particular people under the age of 18, in an abusive, violent or sexual manner.
s. Register to use the Handy Platform under different usernames or identities, after your account has been suspended or terminated.
t. Mirror or archive any part of the Handy Platform or any content or material contained on the Handy Platform without Handy's written permission.
u. Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting or providing false or misleading representations in the sender information, subject line, locator, or content of any electronic message.
v. Alter transmission data without Handy's consent
w. Purchase Merchandise for the purposes of reselling it.
8. No Employment. Handy provides a software platform which allows you to connect with independent Professionals. Handy is not the employer of any Professional. You acknowledge that we do not supervise, direct, or control a Professional’s work or Professional Services performed in any manner. A Professional provides services to you as an independent contractor, and is not an employee, joint venture, partner, agent, or franchisee of Handy for any purpose whatsoever.
9. Special Promotions; Gift Cards and Vouchers.
a. Changes to Promotions. We may from time to time provide certain promotional opportunities to Requesters. All promotions will be run at our sole discretion, and can be activated, modified or removed at any time by us without advance notification.
b. Promotional Credit
i. Promotional credit is only eligible for the specific services designated by Handy. Promotional credit is valid for a limited time only and expires on the date indicated when you receive the applicable promotional credit. Failure to use promotional credit before such expiration date will result in the forfeiture of promotional credit. Handy reserves the right to cancel promotional credit at any time. No refunds will be granted for any expired or canceled promotional credit.
ii. Handy promotional credit has no intrinsic value, is not redeemable for cash, has no cash value, and serves merely as a means to recognize and provide an incentive to use the Handy Platform. Promotional credits may not be purchased for cash and Handy does not sell promotional credit. Promotional credit is nonrefundable.
iii. Promotional credits will not be applied against any sales, use, gross receipts or similar transaction based taxes that may be applicable to you, and/or fees or charges for use of any ineligible services.
iv. Your Handy account will be billed for all fees and charges for use of any ineligible services. Each promotional credit can only be used once and your Handy account will be billed for all fees and charges for use of any eligible service in excess of the amount of available promotional credit.
v. Promotional credit you receive is personal to you. You may not sell, license, rent, or otherwise transfer promotional credit. Promotional credit may be applied only to your account, and may not be applied to any other account.
c. Referral Credits. In the event that you are given a code through which you may refer a friend to the Handy Platform in exchange for a referral credit, you shall not use any online marketing or advertising to promote such code or to artificially increase the amount of credits awarded. By way of example, you may not post, or cause, request or permit a third party to post any such code on a coupon website, nor use any paid search marketing, online advertising, forum posting, newsgroup posting or bulk email to disseminate such code. You may only share such code with your personal friends and acquaintances for legitimate referral purposes, as determined by us in our sole discretion. Handy referral credits are redeemable only for Professional Services. Handy referral credits have no cash value and are not redeemable for cash unless otherwise required by law. Without limiting our other rights and remedies, we may terminate such code and/or your account for any breach of this Section. For questions or additional information, contact us at www.handy.com/help.
i. Handy vouchers or promotional codes for special offers or discounts ("Vouchers") may be available and can be used to pay in part or in full for Professional Services.
ii. You agree that you will only use one Voucher per person and will use Vouchers in accordance with the Voucher terms and conditions.
iii. You agree that you will comply with all Voucher terms and conditions.
iv. Use of Vouchers is further subject to the below terms and conditions regarding Gift Cards
e. Gift Cards
i. Handy Gift Cards ("Gift Cards") are redeemable only for Professional Services. Gift Cards have no cash value and are not redeemable for cash unless otherwise required by law.
ii. Gift Cards must be presented at the time of purchase and any available balance will be applied to your purchase.
iii. Gift Cards do not expire and there are no inactivity, dormancy or service fees associated with Gift Cards.
iv. You agree that you will comply with all Gift Card terms and conditions.
v. Gift Cards are not replaceable if lost or stolen, and cannot be combined with any other Gift Cards, Vouchers, gift certificates, or other coupons.
vi. Gift Cards cannot be used for previous purchases, credits, or the purchase of Gift Cards, and cannot be used to make a payment towards third party items the balance on a credit card.
vii. We reserve the right to limit quantities of Gift Cards purchased by any person or entity and to cancel a Gift Card if we believe that the Gift Card was obtained through fraudulent or unauthorized means. Specifically, you may not purchase or obtain more than $10,000 in Gift Card value in any one day regardless of location, whether on a single Gift Card or multiple Gift Cards. Moreover, you may not purchase or obtain any one Gift Card with a value of more than $2,000 in any one day.
viii. No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Card. Unused Gift Card balances are not transferable, and you may not sell a Gift Card or otherwise barter for its exchange although you may give a Gift Card to someone else as a gift.
ix. A Gift Card is void if copied, altered, transferred, purchased or sold.
x. Purchases of Gift Cards are final and not refundable. All sales are final
xi. We reserve the right to correct the balance of a Gift Card if we believe that a billing error has occurred, and we disclaim all liability for any such billing errors.
xiii. In the event you do not use your Gift Card for a certain period of time, we may be required to turn over the remaining Gift Card balance to a state under such state's unclaimed or abandoned property law. Although your Gift Card does not expire, if we are obligated to turn over the remaining balance of your Gift Card under a state's unclaimed property law, by operation of law we will be released from any further liability or obligation with respect to your Gift Card and you may be required to contact the state's unclaimed property administrator to attempt to recover your unused Gift Card balance. To protect your right to continue to use your remaining Gift Card balance, we will make reasonable efforts to exempt your Gift Card from state unclaimed property laws.
10. Intellectual Property Rights. The Handy Platform, and the information, data, content and materials, which it contains ("Handy Materials"), are the property of Handy and/or its affiliates, subsidiaries, parents and licensors, excluding User-generated content, which Handy has a right to use as described below. The Handy Materials are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Handy and/or its affiliates, subsidiaries, parents and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the Handy Materials. Any use of Handy Materials, other than as expressly permitted herein, is prohibited without the prior permission of Handy and/or the relevant right holder. The service marks and trademarks of Handy, including without limitation Handybook.com, Handy.com and the Handy logo are service marks owned by Handy. Any other trademarks, service marks, logos and/or trade names appearing on the Handy Platform are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the Handy Platform without the express prior written consent of the owner.
11. Copyright Complaints and Copyright Agent. Handy respects the intellectual property of others, and expects Users to do the same. Handy will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided on or in connection with the Handy Platform infringe upon that person's or entity's copyright or other intellectual property right (such person or entity, a "Complainant") and sends to Handy a properly submitted copyright notice as indicated below, Handy will investigate, and if it determines, in its discretion, that the material is infringing, Handy will remove the content and may terminate the access of the User who posted such content to the Handy Platform in the case of repeat infringers. All notices claiming an infringement of copyright rights must contain the following:
(i) Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the Complainant's ownership of the work, should be included.
(ii) A statement specifically identifying the location of the infringing material, with enough detail that Handy may find it on the Handy Platform. Please note: it is not sufficient to merely provide a top level URL.
(iii) The complete name, address, telephone number and email address of Complainant.
(iv) A statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law.
(v) A statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed; (vi) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed.
Handy's contact information for notice of alleged copyright infringement is:
Or via Mail:
Attn: Copyright Agent
Handy Technologies, Inc. d/b/a Handy
PO Box # 1122
New York, NY 10159
12. The App / Mobile Devices
a. The Handy Platform may allow you to access our services, download our Apps, upload content to the Handy Platform, and receive messages on your mobile device (collectively "Mobile Features"). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data, and other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
b. You acknowledge that your use of the Apps is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS or Android).
c. Handy is not liable if you do not have a compatible mobile device or if you download the wrong version of an App for your mobile device. Handy reserves the right to terminate the use of the Apps or any other aspect of the Handy Platform should you be using the Apps or the Handy Platform with an incompatible or unauthorized device.
d. App Store Sourced Application.
(i) With respect to Apps accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Handy reserves all rights in and to the Apps not expressly granted to you under this Agreement.
(ii) You acknowledge and agree that (i) this Agreement is valid between you and Handy only, and, that Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) Handy, not Apple, is solely responsible for the App Store Sourced Application and the Handy Platform Content.
(iii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application.
(iv) To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced Application.
(v) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and Handy, Handy and not Apple is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, 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.
(vi) Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(vii) You acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement for App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement for App Store Sourced Applications against you as a third-party beneficiary thereof.
(viii) Without limiting any provisions of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
13. Handy Spot Rewards. Upon signing up to use the Handy Platform, Requesters will be eligible to receive Spot Rewards and other special offers, from time to time. The number, type and frequency of Spot Rewards are based on a number of factors, each of which are subject to change, without notice. Those factors may include, without limitation, volume of bookings, number of visits and frequency of visits to our website, interaction with our website or the nature of your purchases. Spot Rewards are rewards issued on a periodic basis for promotional purposes.
Spot Rewards may appear with different descriptions from time to time. The Spot Rewards may include Handy merchandise credits, third-party gift cards and are subject to change. Such rewards are provided in Handy’s sole and absolute discretion, may be offered for a limited time, while supplies last, and provided on a first-come, first-served basis. Quantities of each reward are limited and you must have a valid account in order to redeem spot reward offers.
Spot Rewards have no intrinsic value, are promotional in nature, have no cash value, may have certain restrictions including expiration dates and short, time-limited redemption periods, and serve merely as a means to recognize and reward Requestors using the Handy Platform. Spot Rewards are personal to you and cannot be shared, copied or transferred. Spot Rewards are nonrefundable and non-exchangeable between accounts. Each Spot Reward can only be redeemed once. Your account will be billed for all fees and charges for use of any Professional Services in excess of the amount of available Spot Reward.
You must be signed in to your account to be eligible to earn Spot Rewards. Spot Rewards applied from any single qualifying purchase or activity may only be credited to your account. It may take twenty-four (24) hours or more for your account to be credited. Handy shall not be responsible for, or liable to, you, or any person or entity, in any way for any losses, costs or expenses incurred by a delay, error or omission in crediting a qualifying purchase or activity to your account. Handy is not responsible for lost, stolen or damaged rewards or taxes incurred in connection with the rewards. Spot Reward may not be used in conjunction with any other promotional or incentive offer from Handy or any of its affiliates, subsidiaries, parents. Spot Reward are void in the event of fraud, misuse, or violation of any terms of the Agreement, or if sold for cash or other consideration. Some rewards may only be available to residents of a certain state. Handy reserves the right to change, modify or update its Spot Reward and the qualifying purchases and activities from time to time without notice. Spot Reward may be subject to additional terms; read each offer carefully for specific details, limitations and restrictions. Failure to use Spot Reward spot before such expiration date will result in the forfeiture of the Spot Reward. Handy reserves the right to cancel Spot Reward at any time. No refunds will be granted for any expired or canceled Spot Reward.
14. Lockbox and Handy Vault
a. Use of Lockbox. Handy sources or provides lockboxes to eligible Users based on geography and booking appointment history. However, Handy is only sourcing or providing Users with lockboxes. Handy has no information about the lockbox codes except for the information inputted by User via the Handy Platform at User’s option. Handy strongly recommends changing the lockbox code after each service. User assumes full responsibility for changing the lockbox code after each service and protecting the identity of the lockbox code from third-parties. User further covenants and agrees that you will not misuse or abuse the lockbox in anyway.
b. No Control. Once User acquires possession of the lockbox, Handy has no immediate or direct physical control over the use of the lockbox and assumes no liability for lockbox failure, or any delays caused by lockbox failure or consequential damages.
c. Key Access. For your security, Handy depends on User to provide and maintain accurate access inputs via the Handy Platform and will only reveal those inputs to Professionals who claim User's bookings appointments. Once your key is placed in the lockbox, you agree that your key may be accessed only by you and/or a Professional. You agree that you will not provide lockbox codes and/or access to any third-parties.
d. Permitted and Prohibited Uses. User agrees to only use the lockbox for lawful purposes. You agree to use the lockbox only in a manner consistent with any and all applicable laws, regulations, and Handy’s policies and procedures. Handy reserves the right to investigate and take action against any User who, in Handy’s sole discretion, violates this provision. Such action may include, without limitation, removing User from the Handy Platform.
Handy utilizes KeyCafe, a third-party service, to store a User's key(s). By opting in and agreeing to use Handy Vault, User agrees (i) to provide Handy with a copy of his or her key(s), (ii) allow Handy to store User's key(s) in a KeyCafe kiosk, (iii) to allow Handy to share information with KeyCafe pertaining User's key(s), (iv) that User will not have access to his or her key(s) through KeyCafe by participating in Handy Vault, and (v) that Handy employees and Professionals will have ongoing access to User's key(s). User acknowledges and agrees that Handy is not responsible for the loss of User's key(s) during the use of Handy Vault. Upon request through Handy's Help Center at www.handy.com/help Handy will mail User's key(s) back within 14 days.
15. Modifications to the Handy Platform. We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Handy Platform or any content or information on the Handy Platform with or without notice. We will not be liable to any party for any modification or discontinuance of the Handy Platform.
16. Confidentiality. The term "Confidential Information" shall mean any and all of Handy's trade secrets, confidential and proprietary information, personal information and all other information and data of Handy that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. The Handy Platform contains secured components that are accessible only to those who have been granted a username and password by Handy. Information contained within the secure components of the Handy Platform is confidential and proprietary. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Handy and agree that you will not use Confidential Information other than as necessary for you to make use of the Handy Platform as expressly permitted by this Agreement and only during the term of this Agreement. You will not disclose or transfer (or seek to induce others to disclose or transfer) any Confidential Information for any purpose. You shall promptly notify Handy in writing of any circumstances, which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall implement reasonable technical, physical and administrative safeguards to protect Confidential Information from loss or theft, as well as unauthorized access, disclosure, copying, transfer, modification or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Handy upon termination of this Agreement for any reason whatsoever.
17. Disclaimer of Warranties; Limitation on Liability.
a. USE OF THE HANDY PLATFORM IS ENTIRELY AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE HANDY PLATFORM IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER HANDY NOR ITS AFFILIATES, PARENTS, SUBSIDIARIES OR LICENSORS WARRANT THAT THE HANDY PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO ANY CONTENT AVAILABLE IN OR THROUGH THE HANDY PLATFORM; NOR DO THEY MAKE ANY WARRANTY AS TO ANY PROFESSIONAL'S REGISTRATION, PROFESSIONAL ACCREDITATION OR LICENSE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HANDY PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, QUALITY, SUITABILITY, SAFETY, COMPLETENESS OR CONTENT OF THE SERVICES, PROFESSIONAL SERVICES, ANY PRODUCTS, MERCHANDISE, CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE HANDY PLATFORM OR THIS AGREEMENT. ACCESS TO THE HANDY PLATFORM IS PROVIDED FREE OF CHARGE AS A COURTESY. NEITHER HANDY NOR ITS AFFILIATES, PARENTS, SUBSIDIARIES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE HANDY PLATFORM (INCLUDING BUT NOT LIMITED TO THE CONDUCT OF ANY REQUESTERS OR PROFESSIONALS). NEITHER HANDY NOR ITS AFFILIATES, PARENTS, SUBSIDIARIES OR LICENSORS WARRANT THAT THE HANDY PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. HANDY AND ITS AFFILIATES, SUBSIDIARIES, PARENTS AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
b. NO LIABILITY. YOU AGREE NOT TO HOLD HANDY, ITS AFFILIATES, ITS PARENTS, ITS SUBSIDIARIES, ITS LICENSORS, OR ANY OF SUCH PARTIES' AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, "MEMBERS") LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, "LIABILITIES") THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE HANDY PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND LOSS OR DESTRUCTION OF PERSONAL PROPERTY), SERVICES, ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY HANDY OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL HANDY OR MEMBERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE HANDY PLATFORM OR ANY PROFESSIONAL SERVICES OR MERCHANDISE, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. EXCEPT AS EXPRESSLY PERMITTED UNDER THE TERMS OF THE HANDY’S HAPPINESS GUARANTEE, UNDER NO CIRCUMSTANCES WILL HANDY OR MEMBERS BE LIABLE FOR ANY DIRECT DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE HANDY PLATFORM OR ANY PROFESSIONAL SERVICES OR MERCHANDISE, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. HANDY AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE HANDY PLATFORM, THE PROFESSIONAL SERVICES, THE MERCHANDISE OR THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT HANDY OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LESSER OF (1) TOTAL FEES PAID BY YOU TO HANDY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE. OR (2) THE AMOUNT EXPRESSLY PERMITTED UNDER THE HANDY HAPPINESS GUARANTEE AS SET FORTH IN SECTION 3(d).
c. RELEASE. HANDY AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE HANDY PLATFORM. THE HANDY PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. TO THE EXTENT THAT THE HANDY PLATFORM CONNECTS A USER TO A THIRD PARTY PROVIDER FOR THE PURPOSES OF PROVIDING OR OBTAINING MERCHANDISE HEREUNDER, HANDY WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE HANDY FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY SERVICE PROVIDER. BECAUSE HANDY IS NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY PROFESSIONAL SERVICE, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE HANDY AND MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT 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 DISPUTE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
d. ADDITIONAL DISCLAIMER. THE QUALITY OF THE PROFESSIONAL SERVICES AND/OR THE MERCHANDISE SCHEDULED, REQUESTED OR OBTAINED THROUGH THE USE OF THE HANDY PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE PROFESSIONAL WHO ULTIMATELY PROVIDES SUCH PROFESSIONAL SERVICES TO YOU AND/OR THE THIRD PARTY MERCHANDISE PROVIDER OR MANUFACTURER. YOU UNDERSTAND, THEREFORE, THAT BY USING THE HANDY PLATFORM, YOU MAY BE EXPOSED TO PROFESSIONAL SERVICES AND/OR MERCHANDISE THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE HANDY PLATFORM, AND SUCH PROFESSIONAL, AT YOUR OWN RISK.
NOTHING IN THIS AGREEMENT OR THE HANDY PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
BY USING THE HANDY PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE HANDY PLATFORM.
YOU ACCEPT THAT, AS A CORPORATION, HANDY HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST HANDY'S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE HANDY'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AFFILIATES, PARENTS, SUBSIDIARIES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS HANDY.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
18.Indemnification. You hereby agree to indemnify, defend, and hold harmless Handy, its licensors, and each such party's directors, officers, parents, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys' fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use the Handy Platform, any Merchandise and/or any Professional Service, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including but not limited to Professionals), and (v) Your Information and content that you submit or transmit through the Handy Platform. Handy reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of Handy.
19.Mutual Arbitration Agreement.
a. Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and Handy, including without limitation any dispute or claim related to or arising out of this Agreement ("Dispute"), you and Handy may attempt to negotiate any Dispute informally (the "Informal Negotiations") before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this section is your email address and/or physical address that you have provided to Handy. Handy's address for such notices is: firstname.lastname@example.org and/or by mail to Handy Technologies, Inc., Attn: Legal, PO Box # 1122, New York, NY 10159.
b. Arbitration. If a Dispute is not resolved through Informal Negotiations, you and Handy agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration ("Arbitration Agreement"). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, Handy will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the "Class Action Waiver" described in Section d below.
c. Excluded Disputes. You and Handy agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Arbitration Agreement may be rendered ineffectual.
d.WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION.
You and Handy agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
e. Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator's decision/award.
f. Severability. You and Handy agree that if any portion of this section entitled "Mutual Arbitration Agreement" is found illegal or unenforceable, that portion will be severed and the remainder of this section 19 will be given full force and effect.
20.Governing Law; Jurisdiction. Except for the Arbitration Agreement in Section 19, which is governed by the Federal Arbitration Act and except as may be prohibited by the law of the State in which you primarily reside, this Agreement is governed and interpreted pursuant to the laws of the State of New York, United States of America, notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, You agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the county of New York, New York.
21.Assignment. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement shall inure to the benefit of permitted successors and assigns.
22.General Provisions. All provisions that should by their nature survive the expiration or termination of this Agreement, including without limitation, Sections 8, 10 and 14-24, shall so survive. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. A failure by us to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Handy with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement. You agree that regardless of any statute or law to the contrary, any Dispute, claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such Dispute, claim or cause of action arose or be forever barred. All notices provided by a party in connection with this Agreement will be deemed given as of the day they are received either by email, messenger, delivery service, or in the U.S. Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: Your address for such notices is your email address and/or physical address that you have provided to Handy. Handy's address for such notices is: email@example.com and/or by mail to Handy Technologies, Inc., Attn: Legal, PO Box # 1122, New York, NY 10159. The captions in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This Agreement shall not be modified except in writing signed by both parties or by means of a new posting by Handy, as described below. This Agreement shall be interpreted as if jointly drafted by the parties. Handy shall have no liability to you for any failure or delay in performing its obligations in this Agreement where such failure or delay is caused by an event or circumstance beyond Handy's reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, failure of Professionals to perform, flood, fire, explosion, acts of terrorism or accident.
23.Changes to this Agreement. We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Handy Platform. Your continued use of the Handy Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
24.Severability These Terms shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
25.Contact Information. If you have any questions regarding this Agreement, please contact us at firstname.lastname@example.org or by mail the below address:
Handy Technologies, Inc. d/b/a Handy
PO Box # 1122
New York, NY 10159
Last updated: January 25, 2019