Effective July 26, 2023
AGREEMENT:
You acknowledge and agree to the following terms and
conditions when You use the Moving Help® MarketPlace. Our
responsibilities are specific and limited to the terms of this Agreement. You
must read, agree with, and accept all of the terms and conditions contained in
this Agreement which are those terms, conditions and definitions expressly set
out below.
1.
Arbitration Agreement:
YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT INCLUDES THE
U-HAUL COMMERCIAL ARBITRATION AGREEMENT, AVAILABLE AT APPENDIX “A” TO THIS
AGREEMENT, THAT GOVERNS ANY DISPUTES BETWEEN YOU AND EMOVE, INC. THIS ARBITRATION AGREEMENT WILL:
·
ELIMINATE YOUR RIGHT TO A JURY TRIAL; AND
·
SUBSTANTIALLY AFFECT YOUR RIGHTS, INCLUDING PREVENTING YOU
FROM BRINGING, JOINING, OR PARTICIPATING IN CLASS ACTION OR CONSOLIDATED
PROCEEDINGS.
2.
Definitions:
A. The following is a
non-exhaustive list of definitions that shall apply to the use of this
MarketPlace; other definitions are included through out the text:
·
"You", "Your", "User",
"mover", "Moving Help® affiliate", "service
provider" - you, individually, or You for and on behalf of, an entity,
organization or corporation, who provides services, such as Moving Help®
services and others, to the consuming public;
·
"We", "Us", "Our" - eMove,
Inc., a Nevada Corporation with a principal place of business in Phoenix,
Arizona;
·
"Services" - The services that You offer to
provide and/or provide to the consuming public;
·
"Moving Help® MarketPlace" or
"MarketPlace": Our MarketPlace located at www.movinghelp.com
·
"Customer(s)" - individual who desires to obtain
Services;
·
"Agreement" - the agreement for use of the Moving
Help® MarketPlace;
3.
Free Sign up and Advertising Acknowledgement; Common Sense
and Business Judgment:
You acknowledge that We allow You to sign up on the
MarketPlace free of charge and allow You to advertise Yourself and Your
Services free of charge. You agree to use common sense and good business
judgment when using the Moving Help® MarketPlace.
4.
Modification of Agreement:
We may modify the Agreement by sending to You, by email to
Your provided email address, a copy of the modified Agreement. If You reject
the modified Agreement, then You must terminate this Agreement immediately with
notice to Us (email notice to Our appropriate representative is sufficient
notice hereunder) no later than thirty (30) days after the modified Agreement
is sent to You by Us. You agree that Your continued participation as a Moving
Help® affiliate thirty (30) days after the Agreement is sent to You by Us is
Your express consent and agreement to the Modified Agreement and all of its
terms and conditions. This Agreement shall not be modified, amended, and or
changed in any manner by You without Our consent.
5.
Neutral Venue and Online Clearinghouse:
We and Our Moving Help® MarketPlace function solely as a
neutral venue and online clearinghouse. We are the neutral venue for the
connection between You and the Customer. You do not work for Us or represent
Us. You agree that We are not your employer. You agree that We only operate a
website. We do not provide any endorsement for You or Your Services. You
acknowledge and agree that We do not provide the Services and We are not in any
way responsible for assisting You in any manner with Your provision of the
Services. We cannot and will not guarantee the ability of a Customer to
complete payment for any of the provided Services. You acknowledge and agree
that any and all communications, correspondence, verbal or written, or any
warranties or representations made with regard to the Services are not provided
by Us and are specifically and solely between You and the Customer.
6.
Labor Only:
You agree that the MarketPlace is a place where You offer
labor services only and that the Services that You provide will only involve
labor. You agree that You will not use Your participation in the Marketplace as
a means to market or solicit services that involve something other than only
labor
7.
Disputes:
Because we are a neutral venue (as explained above), We are
not responsible for resolving any disputes between You and the Customer
regarding the Services. All disputes must be resolved between You and the
Customer. Therefore, if We are contacted by a Customer who claims to have a
dispute with You regarding the Services and they request Your contact
information (including but not limited to any of Your provided phone numbers
and/or addresses) to settle the dispute, You expressly authorize Us to release
Your provided contact information to the Customer and You agree to release Us
from any and all liability associated therewith.
8.
Effective Offer and Acceptance for Services:
You agree and acknowledge that when a request for the
Services has been submitted to You by a Customer, the Customer has effectively
communicated an offer to You to enter into a contract for the Services.
Furthermore, if You accept the request, You and the Customer have entered into
a contract for the Services. If a quote is provided based on generic location
information (eg. “Phoenix, AZ”), the quoted rate may change upon providing a
specific address. In such cases, You can:
A. Agree to perform the
work at the initial quoted rate; or
B.
Request the customer rebook with the correct information
and provide an updated quote; or
C. Cancel the job without
obligation due to the rate change.
You also agree that the Customer can cancel the job based
on updated rates after providing new address information. Service Provider
agrees that eMove shall not be responsible for any change in rate based on the
change in specific address provided at any time after the initial quote. You
agree that once the Payment Code is entered, the work is acknowledged to be
completed at the quoted rate agreed to. You agree that any issues after the
Payment Code is entered, are between You and the Customer and that eMove has no
responsibilities to the parties.
9.
MarketPlace Fee:
We are the neutral venue for the connection between You and
the Customer. When that connection results in a contract between You and the
Customer for the Services and then, later payment by the Customer for the
Services, You acknowledge and agree that We shall receive, and that We are
entitled to receive, a "MarketPlace Fee". Our MarketPlace Fee is NOT
an additional charge to the total amount to be paid by the Customer for the Services.
Our MarketPlace Fee is calculated as a 15% cut from the total amount paid by
the Customer for the Services. We reserve the right to change Our MarketPlace
Fee from time to time. You agree that We may change Our MarketPlace fee and
that We may post that change to the MarketPlace and/or Your Account. Before We
change the fee in this manner and it becomes effective, We will give You thirty
(30) days prior notice by email to your provided email address (“Prior Notice).
If You reject the modified fee, then You must terminate this Agreement
immediately with notice to Us (email notice to Our appropriate representative
is sufficient notice hereunder) no later than thirty (30) days after the Prior
Notice. You agree that Your continued participation as a Moving Help® affiliate
thirty (30) days after the Prior Notice is Your express consent and agreement
to the modified fee.
REMEMBER: You agree that Our MarketPlace Fee is not an
additional amount to be charged or collected in addition to the total amount
charged for the Services.
10.
Payment for Services:
You acknowledge and agree that payment for the provided
Services will be made pursuant to the provision of the Payment Authorization
Code ("Code") to You by the Customer. Payments for the Services are
to be released to You upon Your input of the Code. You acknowledge and agree
that We do not have any responsibility for the payment for the Services nor are
We responsible for provision of the Code. The Customer is solely responsible
for payment for the Services and it is the sole responsibility of the Customer
to provide You with the Code. Furthermore, We specifically disclaim any
representation or warranty that the Customer will provide You with the Code. We
can not and will not guarantee Customer's obligation to provide You with the
Code. Finally, You agree and acknowledge that if for whatever reason the
Services were not completed or the Customer was not satisfied with the
performance of the Services, the Customer may choose not to present the Code to
You.
11.
Your Financial Obligation to Us:
By entering the Code you represent and warrant the
following: (1) The Customer has voluntarily and knowingly provided You with the
Code; (2) The Services have been completed; (3) Your payment for the Services
will be the total amount charged for such Services less Our MarketPlace Fee;
and (4) You accept and agree to the MarketPlace Fee, and; (5) You have not
otherwise violated the terms and conditions of this Agreement.
12.
Additional Services:
For purposes of this Agreement, Additional Services are
defined as any Services You performed, during a job scheduled through the
MovingHelp Markertplace, for Customer not contained in the original quote and
for which You are compensated by Customer.
If at any time, and for any reason, You provide Additional
Services, and the Customer is charged for those Additional Services, You agree
to do the following: (1) You will promptly report to Us the Additional Services
that were provided; (2) You will report to Us the total amounts charged for the
Additional Services, and; (3) You agree to remit payment to Us an additional
MarketPlace Fee calculated as a 15% cut from the total amount charged by You
for the Additional Services. Your obligations to report and remit payment to Us
under this provision shall be performed no later than ten (10) calendar days
from the date that the Additional Services were provided.
Payment for Additional Services: Payments shall be sent to
the following address to Moving Help with the Job number to the address
below:
Moving Help
2727 N. Central Ave.
Phoenix, AZ 85004.
Material Condition and Breach. You agree that your
compliance with this section is a material condition of this Agreement. You
further agree that Your failure to comply with this section is a Material
Breach of this Agreement.
As a result of Your Material Breach of this section of the
Agreement, You agree You shall be responsible for the following:
1.
A $25.00 research fee; and
2.
A 10% MarketPlace fee in addition to the already owed 15%
MarketPlace Fee covering the Additional Services.
As a result of Your Material Breach of this section of the
Agreement, Your account may be suspended or terminated at Moving Help’s sole
discretion.
13.
Authorization to credit and debit Your identified account:
You irrevocably and expressly authorize Us to credit any
monies to the account that You have identified for Us.
You irrevocably and expressly authorize Us to withhold any
monies and/or debit any monies from any account that You have identified to Us
for any customer disputes, charge backs, fees, costs, deductions, adjustments
and any other amounts owed to Us.
We reserve Our rights to all actions and remedies in
connection with any monies owed to Us.
You will indemnify, defend and hold Us harmless for any
claims, demands or causes of actions that we take toward any identified account
pursuant to this Section..
14.
Additional and specific prohibited actions regarding the
Moving Help® MarketPlace
A. Fees and Customers: You
shall NOT:
·
Charge to, or in any way attempt to collect from, the
Customer, as an additional charge to the total amount agreed upon for the
Services or otherwise, Our MarketPlace Fee.
B.
Our right to Moving Help® MarketPlace Fees.
You
shall NOT, and shall NOT cause another person or entity to engage in any
conduct, act or behavior, that is intended or designed to circumvent or avoid,
in any manner, Our right to a MarketPlace Fee.
A. Specifically, You shall
NOT do the following:
·
Enter into any transaction, letter of intent or memorandum
of understanding, written or verbal, formal or informal agreement, with a
Customer, that circumvents or avoids Our right to a MarketPlace Fee;
·
Communicate or correspond, whether by written, verbal, or
electronic means, with a Customer, for the purpose of entering into an
agreement or transaction that circumvents or avoids Our right to a MarketPlace
Fee.
C. Prohibited actions
regarding Customer Reviews:
You
acknowledge and agree that a critical component of the integrity of the Moving
Help® MarketPlace is the ability of Customers to make comments about You and/or
Your services (whether positive, neutral or negative) AND for other Customers
to read and evaluate those reviews ONLY while on the Moving Help® MarketPlace
and to make voluntary choices based upon those reviews. Therefore, in order to
preserve a critical component of the integrity of the Moving Help® MarketPlace,
You agree that You shall NOT:
·
Improperly influence, or cause another to, improperly
influence in any manner the review of the Customer;
·
Post and/or cut and paste and/or copy, in whole or in part,
the content of a Customer review from the Moving Help® MarketPlace to Your own
personal or business website, to any other third party web site and/or on any
of Your own personal, business or third party marketing/advertising materials
regardless of the form;
·
Post or attempt to post, in any manner or by any means, a
review on Your own Moving Help® account or the account of any other Moving
Help® affiliate.
D. Prohibited Referral
Relationships:
You represent and warrant that there is no understanding,
agreement or relationship, business or personal, between You and any U-Haul
Center personnel and/or U-Haul dealer personnel whereby such personnel refers,
to You, U-Haul customers for the purposes of Moving Help® services ("referral
relationship"). You agree not to communicate or correspond with, whether
by written, verbal or electronic means, any U-Haul Center personnel and/or
U-Haul dealer personnel, for the purpose of entering into or establishing such
a referral relationship.
E.
Multiple Accounts:
You agree not to create, maintain and/or manage, or be
associated directly or indirectly with, or receive payment from, more than one
MovingHelper.com Account/Profile whether or not such additional
profiles/accounts were created by You or by others at Your direction.
15.
Unpaid MarketPlace Fees:
If, for any reason, any MarketPlace Fees have not been
received or in any manner realized by Us on amounts that have been released to
You for the Services and any additional Services performed by You ("Unpaid
MarketPlace Fees"), You agree to pay such Unpaid MarketPlace Fees
immediately upon receipt of written demand by Us. You also agree to pay any
legally appropriate interest charges, attorney fees, and other costs of
collection incurred by Us with respect to any Unpaid MarketPlace Fees. You also
consent and authorize Us to in Our sole discretion make appropriate reports to
credit reporting agencies, financial institutions, tax agencies and law
enforcement authorities, and cooperate with them in any resulting investigation
or prosecution.
16.
Moving Help® Affiliate Profile:
You acknowledge that the Moving Help® MarketPlace exists
for the Customer to make a fully informed decision about Your rates, Services
offering, policies and procedures. Therefore, You shall fully disclose to every
Customer all of Your rates, Services offering, policies and procedures, and any
fees that You will charge, including, but not limited to, taxes and/or other
miscellaneous charges. However, You hereby acknowledge and agree that We are
not obligated to allow You to post any information in Your profile that You may
want including but not limited to Your business name, Your phone number and/or
any other any information that We reasonably believe may be used to circumvent
Our MarketPlace Fee or as may otherwise violate this Agreement.
17.
Changes & Cancellations:
You acknowledge and agree that the Customer is entitled to
make changes to, and cancellations of, the Services. If as a result of such
changes by Customer, You are unable to perform the Services, You agree to use
all reasonable efforts to timely inform the Customer. You agree to hold Us
harmless from any claims, cost, expenses, losses, and liabilities resulting
from Customer changes or cancellations.
18.
Refund Policy:
If the Customer presented the Code to You, he/she is not
entitled to a refund unless the Customer initiates a chargeback with their
payment card provider and We are unable to reverse the chargeback via a dispute
with that provider. In addition, should a payment card charge be identified as
fraudulent, You agree that We are within Our rights to recover payment (minus
MarketPlace fees) from Your selected payment method.
19.
Confidentiality/Non-Disclosure:
As a result of the performance of this Agreement, We will
disclose to You or You may otherwise learn of or discover, certain and some of
Our documents, business practices, object code, source code, management styles,
day-to-day business operations, capabilities, systems, current and future
strategies, marketing information, financial information, software,
technologies, processes, procedures, methods and applications, or other aspects
of Our business ("Our Information"). You hereby agree and acknowledge
that any and all of Our information is confidential and shall be Our sole and
exclusive intellectual property and proprietary information. You agree to use
Our Information only for the specific purposes as allowed by this Agreement.
Any disclosure of Our Information to a third party specifically including a
competitor is strictly prohibited and will be vigorously challenged in a court
of law.
Furthermore, You acknowledge and agree that any breach of
this confidentiality/non-disclosure provision shall cause Us irreparable harm
and as a result, We will have no adequate remedy at law. Therefore, You
acknowledge and agree that We have the right to seek and to obtain injunctive
relief for any breach of the confidentiality/non-disclosure provision.
20.
Non-Competition:
You represent, warrant and covenant that during the term of
this Agreement, that You, for yourself, Your heirs, assigns, successors,
shareholders, officers, directors, employees, principals, partners, agents,
managers and members, shall not engage in, or assist others in, the operation
of an internet based Moving Help® marketplace similar to Our “eMove Moving
Help® Marketplace”. Upon termination of this Agreement for any reason by either
party, You represent, warrant and covenant that for a period of one (1) year
within the United States and Canada, You, for yourself, Your heirs, assigns,
successors, shareholders, officers, directors, employees, principals, partners,
agents, managers and members, shall not engage in, or assist others in, the
operation of an internet based Moving Help® marketplace similar to Our “eMove
Moving Help® Marketplace”.
You acknowledge and agree that any breach of this
non-competition provision shall cause Us irreparable harm and as a result, We
will have no adequate remedy at law. Therefore, You acknowledge and agree that We
have the right to seek and to obtain injunctive relief for any breach of the
non-competition covenant. In the event any part of this provision is determined
to be unenforceable by a court of law, the remainder of this provision shall be
enforceable to the fullest extent permitted by such court.
Furthermore, You agree that any of the consideration set
forth in this Agreement is sufficient for all of your promises under this
provision.
21.
Right to Reject or Remove a Moving Help® Affiliate:
Because You are charged no “sign up” fee or other initial
fee (among other provided consideration to You), to participate in the Moving
Help® MarketPlace, You expressly allow Us to reserve the absolute right to
reject Your participation, or remove you from your current participation, in
the Moving Help® MarketPlace at any time and for any reason or for no reason
and without prior notice to You. An event that may result in the rejection or
removal of Your participation can include but is not limited to: any breach of
this Agreement; any circumvention of the Moving Help® MarketPlace by You or by
others at Your direction; any failures to verify Your identification
verification information; Your circumvention of the MarketPlace Fee; any
attempt by You to improperly influence, or cause another to, improperly
influence the review of the Customer; any attempt by You to harass, or cause
another to harass, or commit inappropriate communications with a Customer
and/or a failure to deliver the promised Services on time; any attempt by you
to harass, or cause another to harass, or commit inappropriate communications
with one of Our representatives; Your failure to make full disclosure on Your
MovingHelper.com Profile as discussed above.
22.
Petition for Reinstatement as a Moving Help® Affiliate:
Upon Your removal from the Moving Help® MarketPlace, You
may petition for reinstatement to the MarketPlace ONLY if Your removal was NOT
based upon the following:
A. Any attempt by You to,
or cause another to, improperly influence the review of a Customer;
B.
Any attempt by You to harass, or cause another to harass,
or commit inappropriate communications with a Customer;
C. Any attempt by You to
harass, or cause another to harass, or commit inappropriate communications with
one of Our representatives; or
D. Where you have been
charged or convicted of a felony and/or misrepresented the same;
We reserve the right to modify this list from time to time
and You expressly agree that You are not entitled to any prior notice of any
changes.
Your Petition for Reinstatement must include the
following:
A. A written statement as
to why You should be reinstated as a Moving Help® affiliate;
B.
Your contact information;
Your Petition shall be reviewed by Moving Help® at Our
discretion and any determination as to Your reinstatement will be based on Our
sole judgment.
Your submission of a Petition does not in any manner
guarantee that You will be reinstated and We specifically disclaim any and all
representations with respect to such guarantee.
We will contact You as to Our decision to reinstate You. We
are not obligated to give You any reason or basis as to Our decision. You
understand that any decision as to reinstatement may be a simple, yes or no.
All decisions are final.
If the Decision is made to reinstate You, and depending
upon the circumstances of Your removal, You may be required to pay a
non-refundable reinstatement fee in an amount to be determined by eMove at its
sole discretion which fee shall be paid via United States Postal Money Order
made payable to eMove Inc. and mailed to:
eMove, Inc. 2727 N. Central Ave. Phoenix, Arizona
85004
Account re-activation will be completed upon receipt of
payment. Any reinstatement does not in any manner modify or change Your
obligations as a Moving Help® affiliate as described in this Agreement (and/or
later modifications thereof) or as described in the Moving Help®
MarketPlace.
23.
Taxes:
You are responsible for collecting and remitting any and
all taxes associated with the transaction for Services.
24.
Record Keeping/Audit:
We reserve the right to keep all records of any and all
transactions and communications regarding the Moving Help® MarketPlace.
25.
Non-Interference:
You shall not otherwise interfere, or attempt to interfere,
with any of Our other business relationships including those with Our Customers
and other Moving Help® affiliates.
26.
Identification:
You agree to submit to the identification verification
process. The verification of Your identity MAY include a criminal background
check or a credit background check.
27.
No Felony Convictions:
You represent and warrant that You, and any individuals
associated with You who will perform the Services, have not been convicted of a
felony. Furthermore, You represent or warrant that there are currently no legal
proceedings, criminal, civil or administrative, instituted against You that
will prevent You from performing the Services.
28.
Fraudulent Activity:
You acknowledge that We will cooperate with law enforcement
to the fullest extent of the law if it is alleged that You, or others on Your
behalf, have committed any type of fraudulent activity on or through the
MarketPlace including but not limited to credit card fraud and other cyber
fraud. Therefore, You agree that We may provide any necessary information or
documentation about You or Your account to law enforcement officials that is
necessary for them to conduct an investigation into any fraudulent
29.
Protection of Intellectual Property Content:
The Moving Help® MarketPlace contains copyrighted material,
inventions, know how, potential patentable business method material, design
logos, phrases, names, logos or HTML Code ("Intellectual Property
Content") all of which, unless otherwise indicated and/or provided
pursuant to a third party license, are Our sole property and We retain all
appurtenant rights, interests and title thereto. We also claim ownership rights
under the copyright and trademark laws with regard to the "look",
"feel", "appearance" and "graphic function" of
this Moving Help® MarketPlace including but not limited to its color
combinations, sounds, layouts and designs. You agree and acknowledge that Your
use of this Moving Help® MarketPlace does not confer upon You any license or
permission to use Our (or any third party's) Intellectual Property Content. You
shall not reproduce, modify, display, sell, or distribute the Intellectual
Property Content, or use it in any other way for public or commercial purpose.
All other trademarks, service marks and copyrights are held by their rightful
owners.
30.
Trademark and Domain Name Protection:
The Moving Help® MarketPlace contains trademarks,
tradenames, trade dress, service marks, domain names or other indicia of
ownership (collectively the "Marks") owned or licensed for use by Us.
Unless You have the specific written consent of one of Our Officers, You agree
that no right, property, license, permission or interest of any kind in or to
the Marks is given or transferred to You, or acquired by You, pursuant to the
execution, performance or non-performance of this Agreement or any part
thereof. You shall in no way contest or deny the validity of Our right of title
to or license of use for the Marks, and You shall not encourage or assist
others directly or indirectly to do so during the lifetime of this Agreement
and thereafter. You shall not utilize the Marks in any manner that would
diminish their value or harm their reputation. You shall not use or register
any domain name that is identical to or similar to any of the Marks.
31.
No Control of Communication or Information and Content:
The Moving Help® MarketPlace acts as a passive conduit for
any and all communication and/or distribution of information. We have no
control, editorial or otherwise, over any communication, information, and
specifically, over the content of such communication or information. We do not
and will not ensure the accuracy or reliability of such communication or
information nor will We act as a monitor over the content of such communication
for information. However, We do reserve the absolute right to remove or
restrict any communication or information that You may post to the Moving Help®
MarketPlace that is in violation of this Agreement, illegal, threatening, or
lewd. You acknowledge and agree that this Moving Help® MarketPlace acts as a
passive conduit for any of Your on line communication or distribution of
content or information.
32.
Your Information on the MarketPlace:
You expressly represent and warrant the following: (1) You
are the owner, with all appurtenant rights thereto, of any and all
communication, content and/or information that You post on the MarketPlace, or;
(2) You are the legitimate and rightful grantee of a worldwide, royalty free,
perpetual, irrevocable, sub-licensable, non-exclusive license to use, distribute,
reproduce and distribute such communication, content and/or information. To
only that extent to allow Us to use Your communication, content and/or
information and not violate Your rights in the same, You grant to Us a royalty
free, perpetual, irrevocable, sub-licensable, non-exclusive license to exercise
the copyright, publicity and database rights that You have in Your
communication, content and/or information. You further represent and warrant
that any and all of Your online communication, content and/or
information:
1.) Will not violate any federal or state law, regulation,
rule, or statute;
2.) Will not violate the terms of this Agreement;
3.) Will not infringe any third party's intellectual
property rights including but not limited to copyright, patent or trademark
rights;
4.) Will not contain obscene, lewd, or suggestive content
and under no circumstances will it contain child pornography;
5.) Will not be libelous, threatening, harassing or
defamatory;
6.) Will not contain any computer hardware or software,
viruses, trojan horses, worms, or any other computer programming that may
interfere with the operation of Our MarketPlace, operation of any of Our
systems and or create or impose a large burden or load on Our
MarketPlace;
7.) Will not scan or test the vulnerability or security of
Our MarketPlace or the system within which it operates;
8.) Will not be used for commercial or public purposes
outside of the requirements of this Agreement;
9.) Will not create liability for Us in any manner
whatsoever;
10.) Will not frame or link to Our MarketPlace without Our
written permission;
11.) Will not involve the upload, or insertion of, any
programming language or code into or onto, Our MarketPlace, including but not
limited to any MovingHelper.com profiles.
You agree to use common sense and good judgment when
conducting or posting any online communication or distribution of information.
You assume legal responsibility for all damages incurred as a result of any of
Your online communication or distribution of information.
33.
Copyright Infringement Policy:
Pursuant to 17 United States Code 512(c) (2) ("Digital
Millennium Copyright Act of 1998"), Our designated agent for notice of
alleged copyright infringement appearing on our MarketPlace is:
Legal Dept. eMove, Inc. 2727 N. Central Ave. Phoenix,
Arizona 85004 Phone: (602) 263-6811 Fax: (602) 277-5812
You need to fulfill the requirements specified in Title II
of the Digital Millennium Copyright Act of 1998 to file a notice of
infringement. The text of this statute can be found at the U.S. Copyright
Office web site, http://lcweb.loc.gov/copyright/.
34.
Release/Waiver of Liability:
You expressly acknowledge and agree that the transaction
and any resulting provision of Services are solely between You and the
Customer. Therefore, You hereby waive and release Us and Our officers,
directors, agents, representatives and employees and Our parent corporations
and their officers, directors, agents, representatives and employees, and each
of them, from any such claims, liabilities, demands, and damages (actual and
consequential) of every kind and nature, known and unknown, suspected and
unsuspected, disclosed and undisclosed, arising out of or in any way connected
with any dispute between You and a Customer. If You are a California resident,
You expressly waive California Civil Code § 1542, which states: "A general
release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor."
35.
Indemnification:
You shall indemnify, defend and hold harmless, Us, Our
directors, officers, agents, representatives and employees and Our parent
corporations and their directors, officers, agents, representatives and
employees, and each of them, from and against any and all claims, demands,
causes of action, costs, damages, expenses, losses and liabilities (including
reasonable attorney fees), incurred or to be incurred, arising out of or
resulting from: the performance or non-performance of the Services undertaken
to be performed directly or indirectly hereunder; Your negligent or intentional
acts or omissions; any breach of this Agreement; the conduct of Your business;
Your violation of and federal or state law, rule or regulation; or Your
violation of any third party rights specifically including any third party
intellectual property rights.
36.
Qualification for Use of Our MarketPlace:
In order to qualify to use Our MarketPlace, You must be
able to enter into a legally binding contract under applicable law. You
represent and warrant that You have the authority to enter into a legally binding
contract on behalf of yourself, and/or on behalf of the group, entity,
organization, or corporation that You represent. Our MarketPlace is not
intended or provided for use by minors (persons under the age of eighteen). Our
MarketPlace is also not intended to be accessed or used by a suspended or
terminated Moving Help® MarketPlace member.
37.
Termination:
We have the right to terminate this Agreement or the
operation of the Moving Help® MarketPlace at any time with or without cause and
without any notice to You. You have the right to terminate this Agreement upon
thirty (30) days prior notice to Us (email notice to Our appropriate
representative is sufficient notice hereunder).
38.
Our relationship with You:
You hereby agree and acknowledge that Your execution of
this Agreement, Your provision of the Services and/or Your use of the Moving
Help® MarketPlace, does not confer or imply any contractor (independent or
otherwise), agency, partnership, joint venture, employee-employer or
franchiser-franchisee relationship with Us and furthermore that no affiliation,
association or connection exists between You and Us.
39.
Assignment:
This Agreement may be assigned and transferred by Us to a
third party at anytime and without notice to You. This Agreement may NOT be
assigned by You. Any attempted assignment by You is void.
40.
Survival:
The following provisions of this Agreement shall survive
any termination of this Agreement or any termination of Your participation in
the Moving Help® MarketPlace:
1, 7, 9, 10, 11, 12, 13, 15, 17, 19, 20, 28, 29, 30, 34,
and 35.
41.
Severability:
Each provision of this Agreement is intended to be
severable. If any term, covenant, condition, or other provision herein is
unlawful, invalid or unenforceable for any reason whatsoever, and such
illegality, invalidity or unenforceability does not affect the remaining parts
of this Agreement, then all such remaining parts hereof shall be valid and
enforceable and have full force and effect as though the invalid or unenforceable
provisions had not been included. A waiver of any part of or performance under
this Agreement shall not constitute a waiver of the whole.
42.
Headings:
The headings contained in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
43.
Integration:
This Agreement supersedes any and all prior discussions and
agreements and the parties in this Agreement to the extent set forth herein
contains the sole, final and complete expression and understanding between the
parties hereto with respect to the transactions contemplated hereby.
44.
No Third Party Beneficiaries:
No person other than the parties hereto, shall have any
rights or claims under this Agreement.
45.
Compliance with Laws:
You agree that it is Your sole obligation to comply with
all laws, rules, statutes and regulations that may apply to You or Your
Services including any and all state and federal licensing requirements.
46.
Your Security Practices With Regard to Customer
Information:
You agree to immediately implement (if You have not done so
already) and maintain commercially reasonable security procedures and practices
to protect Customer information from unauthorized access, destruction, use,
modification or disclosure.
APPENDIX A
ARBITRATION
AGREEMENT
1. General.
You acknowledge and agree that Your business has an effect on interstate
commerce, and as such, this Arbitration Agreement shall be construed,
interpreted and governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”). You agree
that any and all Claims between You the Company arising out of or relating in
any way to the [underlying agreement] (the “Underlying Agreement”) shall,
except as provided by law and herein, be submitted to binding arbitration, to be
resolved by one (1) arbitrator (the “Arbitrator”) through final and
binding arbitration on an individual basis only and not by court or jury trial,
or by class, collective, or representative action. The Arbitrator shall also
resolve any disputes regarding the arbitrability of any Claim hereunder,
including all issues relating to the enforcement of the Class Action Waiver. The
arbitration shall be administered by Judicial Arbitration & Mediation
Services (“JAMS”) in accordance with this Arbitration Agreement and the
JAMS Streamlined Arbitration Rules and Procedures (https://www.jamsadr.com).
Judgment on the award may be entered in any court having jurisdiction.
2. Definitions.
“Company” means U-Haul
International, Inc. and its respective subsidiaries, insurers, parent,
affiliates, agents, and dealers.
“You” or “Your” means you and your respective corporation, partnership, parent,
subsidiaries, affiliates, agents, and employees.
“Claim” or “Claims” is to be broadly interpreted to include any dispute, claim
or cause of action arising out of or relating to Your dealings with the Company
pursuant to the Underlying Agreement. Claims include but are not limited to any
and all legal theories and all statutory and tort claims.
3.
Class
Action Waiver.
You and the Company agree to resolve any Claim that is in arbitration on an
individual basis only, and not on a class, collective action, or representative
basis (“Class Action Waiver’’) (other than actions under the Private
Attorneys General Act of 2004, California Labor Code § 2698 et seq. (“PAGA”)), and You shall
not participate in or recover relief under any current or future class,
collective, or representative (non-PAGA) action brought against the Company by
a third party. The Arbitrator shall have no authority to consider or resolve
any Claim or issue any relief on any basis other than an individual basis. The
Arbitrator shall have no authority to consider or resolve any Claim or issue
any relief on a class, collective, or representative basis. In any case in
which (i) the Claim is filed as a class, collective, or representative action
and (ii) there is a final judicial determination that all or part of the Class
Action Waiver is unenforceable, the class, collective, and/or representative
action to that extent must be litigated in a civil court of competent jurisdiction,
but the portion of the Class Action Waiver that is enforceable shall be
enforced in arbitration.
4. Modification.
In the event the Company modifies the terms and conditions of this Arbitration
Agreement, such modifications shall be binding upon Your written acceptance or
continued provision of goods or services to the Company or use of the Company’s
services subsequent to any such modification shall constitute Your consent to
such modifications.
5. Notice
and Demand Procedure. The party bringing a Claim must send, by
certified mail, a written notice of dispute (“Notice”), which shall
include identification of the parties thereto, a statement of the legal and
factual basis of the Claim(s), and a specification of the remedy sought. Notice to the Company shall be sent to:
U-Haul
Arbitration
2721
North Central Ave., 5th Floor
Phoenix,
AZ 85004
Notice to You shall be sent to the address
designated in the Underlying Agreement to receive Notice (in each case, “Notice
Address”). If the parties do not resolve the Claim within sixty (60) days
after Notice is received by the recipient, or within five (5) business days of the
recipient party’s written denial of any Claim, the petitioning party may
commence an arbitration proceeding by filing a demand for arbitration and
serving the recipient party. During the arbitration, the amount of any
settlement offer made by the Company or You shall not be disclosed to the
Arbitrator until after the Arbitrator determines the amount, if any, to which the
Company is or You are entitled.
6. Arbitration
Rules. The JAMS Streamlined Arbitration Rules and
Procedures apply in the arbitration of all Claims with the following
exceptions:
i.
Arbitrator
Selection. For Claims seeking less than $250,000, after the
appropriate filing fees have been paid, JAMS will send the parties a list of
five (5) qualified arbitrators from its list of Neutrals (the “Arbitrator
List”). If the parties do not agree on an arbitrator within fourteen (14)
calendar days from the date both parties have received the Arbitrator List,
then an arbitrator shall be selected using the alternate strike method from the
Arbitrator List. The petitioner shall have the option of making the first
strike. If the selected arbitrator is not available or declines to serve, JAMS
shall generate another list, and the selection process shall be repeated.
Payment of all fees shall be governed by JAMS rules.
ii.
Arbitration
Location. The location of the arbitration proceeding shall be no
more than fifty (50) miles from the petitioner’s principal place of business,
unless each party to the arbitration agrees in writing otherwise.
iii.
Claims
for $250,000 or more. The JAMS Comprehensive Arbitration Rules
and Procedures shall apply. A single Arbitrator shall preside over the
arbitration, except that You and the Company may mutually agree to proceed
before a panel of three (3) Arbitrators. Payment of all fees will be governed
by JAMS rules. The Federal Rules of Evidence shall apply unless otherwise
agreed to in writing by You and the Company.
7. Arbitrator’s
Authority. The Arbitrator shall:
i.
Be bound by the terms of this Arbitration
Agreement;
ii.
Resolve all disputes regarding the
arbitrability of any Claim hereunder, including all issues relating to the
enforcement of the Class Action Waiver;
iii.
Decide all issues based on the evidence
and arguments submitted by the parties;
iv.
Issue a reasoned written decision
sufficient to explain the essential findings and conclusions on which the award
is based and to identify the specific types of damages awarded, if any;
v.
Award any form of individual relief,
including equitable relief, injunctions, and other relief available under
applicable law;
vi.
Make rulings and resolve disputes as to
the payment and reimbursement of fees and expenses at any time during the
proceedings;
vii.
Apply a statute of limitations to all
Claims as though such Claims were brought in an appropriate court of competent
jurisdiction;
viii.
Participate in a post-decision Arbitrator
interview for the purpose of providing candid feedback to a party concerning
the effectiveness and persuasiveness of its presentation of evidence and
arguments. Such Arbitrator interview shall be held after the final conclusion
of the matter and be conducted telephonically or in-person at the election and
expense of the requesting party. The Arbitrator will be compensated at the
hourly rate that prevailed during the arbitration proceedings. Nothing in this
section requires the Arbitrator to communicate in a way that violates ethical
standards. Nothing disclosed by the Arbitrator in the Arbitrator interview may
be used as a basis to challenge the Arbitrator’s decision; and
ix.
Retain jurisdiction to resolve issues
between the parties concerning interpretation and application of the decision. Such
post-decision issues shall be resolved based on written submissions only. A
deposit for the Arbitrator’s time to resolve a post-decision issue shall be set
by the Arbitrator and advanced by the requesting party with such deposit
reimbursable in whole or in part at the Arbitrator’s discretion.
8. Confidentiality.
In order to protect the confidential, proprietary, and trade secret information
of the parties, the Company and You agree to enter into a confidentiality
agreement as negotiated by You and the Company. If You and the Company cannot
agree on the confidentiality agreement, the Arbitrator shall have the sole
responsibility for determining the appropriate scope of the confidentiality
agreement. In no event shall the confidentiality agreement in any way prevent You
or the Company from using any document marked as “confidential” in an
arbitration proceeding under this Arbitration Agreement, subject to any ruling
on admissibility by the Arbitrator.
9. Governing
Law.
Except as otherwise stated herein, the interpretation of this Arbitration
Agreement shall be governed by the laws of the state of Arizona without regard
to the choice or conflicts of law provisions of any jurisdiction. Any Claim arising
out of or in connection with this Arbitration Agreement that is not subject to
the provisions contained herein shall be subject to the exclusive jurisdiction
of the state and federal courts located in the City and County of Phoenix,
Arizona.
10. Entire
Agreement. This Arbitration Agreement is the full and complete
agreement relating to the formal resolution of disputes arising hereunder and
supersedes all prior and contemporaneous agreements and understanding, whether
written or oral, relating to such subject matter in any way. Except as stated
herein, in the event any portion of this Arbitration Agreement is deemed
unenforceable, the remainder of this Arbitration Agreement shall remain in full
force and effect. In the event this Arbitration Agreement conflicts with any
other arbitration agreement between the parties, this Arbitration Agreement
shall control.
11. Alternate
Forum. In the event
that the arbitration forum in this Arbitration Agreement is no longer in
business at the time any demand for arbitration is served, the arbitration
shall proceed with a nationally recognized arbitration forum of the petitioner’s
choice.
