Empower Acceptable Use Policy
PLEASE READ THIS ACCEPTABLE USE POLICY (this “AGREEMENT”) CAREFULLY. BY ACCESSING OR CONTINUING TO ACCESS THE PLATFORM, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Agreement is entered into by and between Yazam Inc. d/b/a Empower, a Delaware corporation (“Empower” or “Company”), and You (“You” or “Consumer”) and governs your use of Empower Software, the Empower Platform and Empower Consumer Support (each as defined below and collectively the “Services”). The “Effective Date” of this Agreement is the date on which You first access the Services. YOU UNDERSTAND AND AGREE THAT EMPOWER MAY MODIFY THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTIFYING YOU AND WITHOUT YOUR CONSENT AS PERMITTED IN SECTION 11 (MODIFICATIONS) OF THIS AGREEMENT. BY CONTINUING TO USE THE SERVICES THEREAFTER, YOU CONSENT TO ANY AND ALL SUCH MODIFICATIONS EVEN IF YOU DO NOT HAVE KNOWLEDGE OF SUCH MODIFICATIONS. YOUR CONTINUED USE OF THE SERVICES IS AT EMPOWER’S SOLE AND ABSOLUTE DISCRETION.
“Empower Platform” means the proprietary Empower online dynamic booking network (or any successor network) consisting of any Empower websites, wireless platforms or applications owned or operated (in whole or in part) by Empower or its affiliates along with any third-party partner websites, platforms or services used or provided in connection with the Services.
“Empower Software” means the object code version of Empower’s proprietary software provided to Consumer, which may consist of one or more applications and may include desktop, mobile or other software, and any updates thereto as may be provided by Empower from time to time.
“Empower Consumer Support” means any technical or other support services provided to Consumer as part of the Services.
NATURE OF THE SERVICES
The Services constitute a marketplace where Consumers may be matched based on a number of factors or preferences with persons (“Service Providers”, “Subscribers” or “Customers”) who offer to provide certain services or assistance sought by Consumers. The services or assistance provided by Service Providers to Consumers are referred to as “Consumer Services”. Subject to the terms and conditions of this Agreement, upon your request, Empower may, on your behalf, make requests to Service Providers to provide You with Consumer Services and may allow You to reserve and pay for such Consumer Services. Any decision by a Service Provider to offer, book, provide or charge a Consumer for Consumer Services, and any decision by a Consumer to request, reserve, accept or pay for Consumer Services is a decision made by that Service Provider and that Consumer in each party’s sole discretion. Each agreement by a Service Provider to provide and by a Consumer to receive Consumer Services is a separate agreement between such parties. Empower does not provide Consumer Services and has no control over the Consumer Services provided by Service Providers to Consumers. You retain the sole right to determine when, where, how often and for how long You wish to receive Consumer Services through the Empower Platform. You have the option to accept or decline any offer to provide Consumer Services to you made through the Empower Platform, to cancel an accepted offer and to terminate early the receipt of Consumer Services, subject to Empower’s community cancellation policies. In requesting Empower, on your behalf, to match you with Service Providers offering to provide Consumer Services available through the Empower Platform, You authorize Empower to attempt to match You with Service Providers based on certain preferences or considerations that You have indicated. You further authorize Empower to cancel an existing match if necessary and attempt to rematch You as necessary based on the same or different preferences or considerations. Factors considered in matching You and other Consumers with Service Providers may include, but are not limited to, the parties’ respective locations, the type of Consumer Services being requested, the estimated duration of the Consumer Services, the various prices being charged by Service Providers for Consumer Services, other preferences indicated by Service Providers or Consumers, and Empower Platform efficiency.
ONE ACCOUNT; NO SHARED ACCOUNTS
You may only create one user account and may not allow other persons to use or share your account. Empower may deactivate, without notice, any additional or duplicate accounts created by Consumer or used in connection or in coordination with Consumer’s account.
Empower may provide Consumers with Consumer Support. Nothing in this Agreement shall obligate Empower to provide or continue to provide Consumer Support and Empower has the sole and absolute discretion in how and to whom it provides such Consumer Support. The parties acknowledge and agree that Empower is not providing Consumer Support for any consideration and that Empower’s provision of Consumer Support creates no contractual obligation or liability of any kind to Consumer. Consumer hereby explicitly disclaims any reliance or other interest or basis of liability in connection with Empower’s provision of any Consumer Support. Empower provides no guarantee of Consumer Support availability, accuracy or effectiveness.
FREE CREDIT; PROMOTIONS
Empower may, at its discretion, from time to time, offer promotional or other discounts to Consumers. Such discounts are not intended to impact what Service Providers charge Consumers for Consumer Services and do not impact amounts owed by Consumers to Service Providers. Free credit provided to Consumers to be used to purchase Consumer Services on the Empower Platform is not redeemable for cash and has no value outside of the Empower Platform. Empower may, at its sole and absolute discretion, take back, eliminate, draw down, or prevent the use of any Free Credit granted to or earned by Consumers.
In connection with Consumer’s use of the Services, Consumer agrees not to and agrees that it will not permit, cause or assist any third party to: (i) impersonate any person or entity; (ii) interfere with or disrupt the Empower Platform; (iii) share or disseminate any performance information or analysis regarding the Empower Platform; (iv) use the Services in violation of any applicable law, rule, or regulation or for any purpose not permitted in this Agreement; (v) post information or interact on the Empower Platform in a manner which is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal; (vi) use the Services in any way that infringes upon any third party’s rights; (vii) post, email or otherwise transmit any malicious code, files or programs or attempt to intercept or expropriate any system, data or personal information; (viii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through or using the Services; (ix) frame or mirror any part of the Services or use meta tags or code or other devices containing any reference to Empower in order to direct any person to any other website, application, or platform; (x) copy, modify, adapt, translate, reverse engineer, decipher, decompile, disassemble or otherwise attempt to discern the source code or interface protocols of any portion of the Empower Software or Empower Platform; (xi) rent, lease, lend, sell, distribute, redistribute, license, sublicense or otherwise provide a third party with use or access to the Services or any portion thereof; (xii) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services; (xiii) provide any other Consumer’s or any Service Provider’s information to any other party, store such information outside of the Empower Platform or use such information for any purpose other than in connection with Consumer’s receipt of Consumer Services; (xiv) create or use any materials that use Company trademarks, logos, service marks or any other Company Intellectual Property (as defined below), without the prior written consent of Empower; (xv) remove, modify or obscure any proprietary markings or restrictive legends used or provided by Empower, its affiliates or any third-party in connection with the Services; (xvi) take any action that imposes or that Empower reasonably believes may impose a disproportionately large load on the Empower Platform; or (xvii) attempt to interfere with or disrupt in any way the performance of the Empower Platform. If Company determines that any improper use of the Services has taken, is taking, or will likely take place at any time by a Consumer, in addition to any other rights or remedies that Company may have under this Agreement or applicable law, Company may terminate and/or suspend such Consumer’s account or access to the Services immediately without prior notice.
CONSUMER PROVIDED INFORMATION
By entering into this Agreement, Consumer represents and warrants that all information provided by Consumer to Empower is true, accurate, current and complete.
PAYMENTS AND CHARGES
EMPOWER DOES NOT COLLECT ANY PAYMENTS OWED BY CONSUMERS OR THIRD PARTIES TO SERVICE PROVIDERS.
Consumer authorizes empower to automatically and immediately transfer any amounts due and payable by Consumer to a Service Provider.
Off-platform payments. Empower does not prohibit tipping or additional payments from being made to Services Providers outside of the Empower Platform. Consumers who wish to make such additional payments or tip off platform and Service Providers who wish to accept such additional payments or tips do so at their own risk.
Cancellation fees. The following amounts shall be owed to a Service Provider by a Consumer in connection with an undisputed cancellation of Consumer Services after a Service Provider has agreed to provide such Consumer Services to the Consumer: (a) $0 if the Consumer cancels Consumer’s reservation within three (3) minutes of Service Provider’s acceptance; (b) $2 if the Consumer cancels Consumer’s reservation more than three (3) minutes but no more than six (6) minutes after Service Provider’s acceptance; (c) $4 if the Consumer cancels Consumer’s reservation more than six (6) minutes after Service Provider’s acceptance.
Payment Processing. Empower is not a payment processor. Payment processing services for the Empower Platform are currently provided by Stripe and subject to Stripe’s terms of service. By using the Services, Consumer agrees to be bound by Stripe’s terms of service, which may be modified from time to time. Consumer agrees to provide accurate and complete information about Consumer and authorizes Empower to share it and transaction information with Stripe for the purpose of facilitating the payment processing services provided by Stripe. Empower reserves the right to switch payment processing vendors or use alternate or backup vendors at Empower’s sole discretion without prior notice to Consumer.
NOTIFICATIONS AND COMMUNICATIONS FROM EMPOWER; DATA
Notifications and Communications from Empower. Consumer agrees to receive communications from Empower and its affiliates via e-mail, SMS, phone, and push notification (collectively “Empower Communications”). Consumer agrees that Empower Communications may be generated by automatic telephone dialing systems. Empower Communications may include, but are not limited to, operational communications concerning Consumer’s account or use of the Services, updates concerning new and existing features of the Services, communications concerning promotions run by Empower or Empower’s third-party partners or news concerning Empower and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to SMS messages sent by Empower. If You wish to opt out of promotional emails, You can unsubscribe from them by following the unsubscribe directions in the promotional email. If You wish to opt out of promotional calls or texts, You may text “Stop” from the mobile device receiving messages. You acknowledge and agree that opting out of all notifications, calls or SMS messages from Empower or from Service Providers may impact or completely restrict your ability to use the Services.
Data Plan. Consumer acknowledges and understands that Consumer’s use of the Services could consume large amounts of data. Empower is not responsible for any overage charges or any other fees or costs associated with Consumer’s data plan.
FEEDBACK; USAGE INFORMATION; BACKGROUND CHECKS
Background Check. Empower makes no representations or warranties about the safety of Consumer Services. Although Empower may conduct background checks or other screening (“Optional Screening”) on Service Providers, such Optional Screening is conducted at Empower’s sole and absolute discretion and Consumer agrees not to and that Consumer should not rely on Optional Screening. EMPOWER SHALL HAVE NO LIABILITY ON ANY BASIS IN CONNECTION WITH ANY FAILURE TO CONDUCT OR ANY FAILURES ON THE PART OF ANY SCREENING PARTNERS TO PROVIDE ACCURATE OR COMPLETE OPTIONAL SCREENING.
MODIFICATIONS TO THIS AGREEMENT
YOU UNDERSTAND AND AGREE THAT EMPOWER MAY MODIFY THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTIFYING YOU AND WITHOUT YOUR CONSENT. SUCH MODIFICATIONS SHALL BECOME EFFECTIVE UPON PUBLICATION ON THE EMPOWER PLATFORM. CONTINUED USE OF THE SERVICES AFTER THE EFFECTIVE DATE OF THE MODIFICATION SHALL CONSTITUTE CONSUMER’S ACCEPTANCE OF THE MODIFIED TERMS, EVEN IF YOU DO NOT HAVE KNOWLEDGE OF SUCH MODIFICATIONS. YOUR CONTINUED USE OF THE SERVICES IS AT EMPOWER’S SOLE AND ABSOLUTE DISCRETION. IF EMPOWER MODIFIES THIS AGREEMENT AFTER THE DATE YOU FIRST CONSENTED TO THE TERMS (OR TO ANY SUBSEQUENT CHANGES TO THESE TERMS), YOU MAY REJECT ANY SUCH CHANGE BY PROVIDING EMPOWER WITH WRITTEN NOTICE OF SUCH REJECTION WITHIN THIRTY (30) DAYS OF THE DATE SUCH CHANGE BECAME EFFECTIVE. THIS WRITTEN NOTICE MUST BE PROVIDED EITHER (A) BY MAIL DELIVERY TO OUR REGISTERED AGENT FOR SERVICE OF PROCESS, C/O YAZAM, INC, OR (B) BY EMAIL FROM THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT TO: INFO@RIDEEMPOWER.COM. IN ORDER TO BE EFFECTIVE, THE NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO REJECT CHANGES TO THESE TERMS. BY REJECTING CHANGES TO THESE TERMS, YOU ARE AGREEING THAT YOU WILL CONTINUE TO BE BOUND BY THE PROVISIONS OF THESE TERMS AS OF THE DATE YOU FIRST AGREED TO THE TERMS (OR TO ANY SUBSEQUENT CHANGES TO THESE TERMS).
Empower is the owner of the Empower Platform and Empower Software and owns all right, title, and interest thereto, including all source code, object code, operating instructions, and interfaces developed for or relating thereto, together with all modifications, enhancements, upgrades, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, and all copyrights, patents, trade secrets, trademarks, and other intellectual property and proprietary rights relating thereto (the “Company Intellectual Property”). Consumer has no rights with respect to the Company Intellectual Property other than those expressly granted under this Agreement.
No Warranties. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY MAKES NO WARRANTY IN CONNECTION WITH THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, USAGE OF TRADE, OR AVAILABILITY. EMPOWER DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OR CONSUMER’S USE THEREOF WILL BE ERROR-FREE, UNINTERRUPTED, RELIABLE, OR SECURE. EMPOWER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, CELLULAR SERVICE OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF EMPOWER. TO THE EXTENT THAT COMPANY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THE LAW.
Insurance. EMPOWER IS NOT RESPONSIBLE FOR AND DOES NOT PROCURE INSURANCE ON BEHALF OF SERVICE PROVIDERS OR CONSUMERS. EMPOWER IS NOT RESPONSIBLE FOR AND DOES NOT HAVE A POLICY OF INSURANCE THAT COVERS THE PERSONAL BELONGINGS OR EQUIPMENT, INCLUDING THE MOTOR VEHICLES, OF SERVICE PROVIDERS OR CONSUMERS.
Unauthorized Use of Your Account. Consumer is responsible for the use of Consumer’s account. Empower is not responsible for monitoring unauthorized usage. Should Consumer suspect that an unauthorized party may be using Consumer’s account, or any other breach of security, Consumer agrees to notify Empower immediately.
Use of Consumer’s Personal Information. It is possible for others to obtain information about You that You provide, publish, post or send to other users to or through the Services (including any profile information that You provide), and to use such information to harass or harm You. Regardless of whether use of the Services requires and is conditioned on your provision, publication, posting or sending of such information, Empower is not responsible for the use by others of such information and You agree by using the Services to release the Company from any and all liability, regardless of the form of action, for the acts or omissions of others (including unauthorized users, or hackers).
Location Data. Location data provided by or through the Services is for basic location and informational purposes only and is not intended to be relied upon in emergency situations. Empower does not guarantee the accuracy, availability, timeliness, or completeness of location data tracked or displayed in connection with the Services.
LIMITATION OF LIABILITY
No Liability for Indirect Damages. COMPANY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR SPECIAL DAMAGES OF ANY KIND WITH RESPECT TO ANY CLAIMS BASED ON ANY THEORY OF LIABILITY REGARDLESS OF THE FORESEEABILITY OF SUCH CLAIMS OR DAMAGES OR WHETHER SUCH CLAIMS OR DAMAGES WERE CAUSED BY THE NEGLIGENCE OR OMISSION OF COMPANY ARISING FROM OR RELATED TO THIS AGREEMENT. A party’s out-of-pocket costs, including but not limited to attorney’s fees, for damages of the kinds specified in the preceding sentence are indirect damages to such party. Each party releases the other party and its affiliates, as well as their respective officers, directors, managers, employees and agents from such claim(s).
Exclusions. Company shall not be liable for any damages arising out of or relating to (a) interoperability, interaction or interconnection problems with applications, hardware, third party services, or networks not provided by Company; (b) interruptions of the Services or lost or altered messages or transmissions; or (c) unauthorized access to, theft, alteration, loss, or destruction of Consumer’s applications, data, information, hardware or equipment.
Third Parties. Company shall not be liable for the unauthorized actions of any third party, including, but not limited to, third party access to, or alteration, theft or destruction of Consumer’s data or information.
Company Liability Limits. In no event will Company’s liability arising from or related to this Agreement exceed the amount paid by Consumer to Company under this Agreement during the one (1) month prior to the date of the event(s) giving rise to the initial claim for which damages are attempting to be recovered. All claims must be brought within one (1) year of the date that the party bringing such claim knew or should have known about the facts giving rise to such claim.
Consideration. The parties acknowledge that these limitations of liability are part of the consideration of this Agreement and were specifically included in the calculation and establishment of the amounts paid by Consumer to the Company, which, but for these limitations of liability, would be higher.
Indemnification by Company. Company will indemnify, defend, and hold harmless Consumer from and against any suit, proceeding or other claim brought or threatened by an entity not a party to this Agreement that arises out of any actual, alleged, or contributory patent, copyright, or trademark infringement or violation of other intellectual or proprietary rights or license related to the manufacture, delivery, sale or use of the Services provided under this Agreement; provided, however, that this Section 15.1 shall not apply if the alleged infringement or violation arises from (i) modification of the Services by a party other than Company; (ii) use of a superseded or altered version of the Empower Software, if such infringement or violation would have been avoided by the use of updated Empower Software, and if such updated Empower Software had been made available to Consumer prior to the claim of infringement having arisen; (iii) use of the Services in a manner for which they were not authorized by this Agreement; or (iv) use of the Services in combination with unauthorized modules, apparatuses, hardware, software, or other services (any of the foregoing circumstances under clauses (i) – (iv), a “Consumer Indemnity Responsibility”).
Indemnification by Customer. Customer will defend, indemnify and hold harmless Company, its employees, directors, officers and agents from and against any suit, proceeding or other claim brought or threatened by an entity not a party to this Agreement that arises out of: (a) property damage, or personal injury (including death) arising from Consumer’s misuse of the Services; (b) Consumer’s breach of any provision, warranty or representation in this Agreement; (c) any unlawful act perpetrated, facilitated or encouraged by Consumer; (d) any claim that any materials that Consumer submits to or transmits through the Services infringes or otherwise violates the intellectual property rights or any other rights of any third party; or (e) a Consumer Indemnity Responsibility. Consumer’s indemnification obligations shall be applicable without regard to the acts or omissions of any third party or indemnified party, including any contributory negligence of any third party or indemnified party.
Procedure. If a claim is made against a party, the party in receipt of this claim (“Indemnified Party”) will notify the other party (“Indemnifying Party”) in writing no later than sixty (60) days after learning of the claim. If the Indemnifying Party has properly assumed defense of the claim and proceeds to defend the claim in good faith, the Indemnified Party may not settle or compromise the claim without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld; provided, however, if the Indemnifying Party’s insurer has assumed the defense of the claim and proceeds to defend the claim in good faith, such insurer may settle the claim or part of the claim over which the Indemnifying Party’s insurer has assumed the defense without the Indemnifying Party’s consent. The Indemnified Party will provide assistance, information, and authority reasonably necessary to assist the Indemnifying Party. Failure of the Indemnified Party to provide notification of a claim will not relieve the Indemnifying Party of its obligations under this Agreement expect to the extent the delay prejudices the Indemnifying Party.
Notices. All notices, requests, demands and other communications required or permitted to be given under this Agreement may be sent electronically and will be deemed given upon transmission if sent electronically.
Governing Law; Venue. This Agreement and the Parties obligations hereunder are governed by the laws of the Commonwealth of Virginia (without regard to conflicts of laws principles thereof). For purposes of litigating any dispute that arises directly or indirectly in connection with this Agreement, the Parties hereby submit to and consent to the exclusive jurisdiction of the Commonwealth of Virginia and agree that such litigation shall be conducted in the courts of Fairfax County, Virginia, or the federal courts of the Eastern District of Virginia.
Waiver. No provision of this Agreement may be modified or waived except in a writing signed by the party against whom enforcement is sought. No waiver by Company of any provision or breach of this Agreement will be a waiver of any other provision or any preceding or succeeding breach. No waiver by Company of any right under this Agreement will be construed as a waiver of any other right. Company is not required to give notice to enforce strict adherence to all terms of this Agreement.
Severability. Should any provision in this Agreement be held to be unenforceable in any respect, the other provisions in this Agreement will otherwise remain in effect to the maximum extent permitted by law. If any provision in this Agreement is held to be excessively broad as to duration, geographical scope, activity or subject, such provision will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law.
Force Majeure. Empower shall not be liable to Consumer in any way whatsoever for any failure or delay in performance of any of its obligations under this Agreement arising out of any event or circumstance beyond the reasonable control of Empower.
Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto.