ForumBooster.net - Terms of Service
Forum Booster Content Market User Agreement
This Forum Booster User Agreement, (the "Agreement") is entered into by and between the company or individual specified during this online registration process at ForumBooster.net ("User") and Echo Prospects, the parent company that manages the website ForumBooster.net, a California limited liability corporation with its principal place of business at 984 Folsom St, San Francisco, CA 94103, U.S.A. ("Echo") for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Capitalized terms are defined throughout the Agreement and in Section 13. The policies, terms and conditions below limit Echo's liability and obligations to you and allow Echo to change, suspend or terminate your access to and use of the Forum Booster Content Market located at www.forumbooster.net. We urge you to carefully read the following terms and conditions.
YOU UNDERSTAND THAT BY CHECKING THE BOX AND CLICKING THE "SUBMIT" BUTTON, BY USING THE FORUM BOOSTER CONTENT MARKET (INCLUDING ANY CONTENT PROVIDED THEREIN) OR YOUR FORUM BOOSTER ACCOUNT, HAVING ANY FORM OF COMMUNICATION WITH A BUYER OR PROVIDER OR BY POSTING ANY ASSIGNMENTS VIA THE FORUM BOOSTER CONTENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT (INCLUDING THE INCORPORATED POLICIES). IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE FORUM BOOSTER CONTENT. IF YOU AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT ANDYOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT BUSINESS.
1. THE FORUM BOOSTER CONTENT MARKET.
1.1 Purpose of the Forum Booster Content Market. The Forum Booster Content Market is a website located at www.ForumBooster.net (the "Site") provided by Echo where Users may locate Buyers of Services or Providers of Services and access and use the Forum Booster Tools (collectively, the "Forum Booster Content Market"). In addition, payments for the Services contracted for through the Forum Booster Content Market are made through the Forum Booster Content Market. On the Forum Booster Content Market, Buyers may post writing jobs and other writing tasks to have Providers complete these tasks.
1.2 Eligibility. The Forum Booster Content Market is available only to persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Without limiting the foregoing, the Forum Booster Content Market is not available to temporarily or indefinitely suspended Users. Users are not employees, agents or contractors of Echo. You will not use or access the Forum Booster Content Market if you are located or reside in a country (a) in which use or participation is prohibited by law, decree, regulation, treaty or administrative act or (b) that is prohibited from entering into trade relations with the United States or its citizens. Such countries include, without limitation, Cuba, Iran, North Korea, Sudan and Syria.
1.3 Role of Service Contracts and the Role of Echo. If a Buyer purchases a service, a services contract is formed directly between such Buyer and Provider subject to the terms specified in Section 2 (Service Contract Terms Between Buyer and Provider) and/or any other terms and conditions that Buyer and Provider may agree upon through the Forum Booster Content Market ("Service Contract"). User agrees that, whether acting as a Buyer or Provider, User shall not agree on any terms outside the Forum Booster Content Market and any attempt to agree on terms outside the Forum Booster Content Market shall constitute a material breach of this Agreement and be null and void.
1.4 Acknowledgement of Echo's Interest in Proper Performance of Service Contracts. Even to the extent Echo is not a party to a Service Contract, User acknowledges and agrees that the reputation and goodwill of Echo may be adversely affected if, as a Buyer or Provider, the User engages in violations of the Service Contract. User further acknowledges and agrees that Echo is an intended third-party beneficiary of each Service Contract User enters into and Echo has the right to take such legal actions against User as Echo, in its sole discretion, deems necessary to protect the interests of Echo.
1.5 Payment of Echo Fee. User agrees that Echo shall be paid a fee (the "Echo Fee") for maintaining the Forum Booster Content Market. The amount of such fee and the method of its payment are set forth on the ForumBooster.com website.
2. SERVICE CONTRACT TERMS BETWEEN BUYER AND PROVIDER.
User agrees that all Service Contracts between User and any Buyer or Provider regarding particular Assignments shall be conducted through the Forum Booster Content Market.
2.1 Services. Provider shall perform Services in a professional and workmanlike manner.
Under Fixed Price Assignments, Provider shall deliver the agreed-upon Work Product. Under Bill Rate Assignments, Provider shall use reasonable efforts to create the desired Work Product. Provider may not subcontract with third parties to perform Services on behalf of Provider or assist Provider in performing Services unless Provider has obtained Echo's prior written consent to such arrangement.
2.2 Fees. Buyer shall pay Echo and Echo shall pay Provider the agreed-upon fees for services delivered. All amounts paid by Buyer shall be paid through the Forum Booster Content Market.
2.3 Termination. Under Bill Rate Assignments, either party may terminate the Service Contract at any time for any or no reason, provided that Buyer remains obligated to pay for any services purchased prior to termination.
2.4 Buyer Deliverables. Buyer grants Provider a limited, non-exclusive, revocable (at anytime, at Buyer's sole discretion) right to use the Buyer Deliverables as necessary for the performance of the Services. Buyer reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Buyer Deliverables. Upon completion or termination of the Assignment, or upon request by the Buyer, Provider shall immediately return all Buyer Deliverables to the Buyer and purge all copies of Buyer Deliverables and Work Product contained in or on Provider's premises or systems or otherwise under Provider's control.
2.5 Work Product. Any copyrightable works prepared by Provider in connection with an Assignment for Buyer shall be "works for hire"; consequently, Buyer will be considered the author and owner of such works. Unless prohibited by applicable mandatory law, all Proprietary Rights in and to Work Product shall vest in Buyer upon creation. If under mandatory law, Proprietary Rights do not vest in Buyer upon creation, Provider hereby assigns all Proprietary Rights to Work Product to Buyer, effective upon creation. To the extent that under mandatory law, rights can only be assigned after creation, Provider hereby irrevocably agrees to assign, immediately following the creation, all Proprietary Rights to Work Product to Buyer. To the extent that under mandatory law, Proprietary Rights cannot be assigned, Provider hereby irrevocably agrees to grant, and hereby grants, to Buyer an exclusive (excluding also Provider), perpetual, irrevocable, unlimited, worldwide, fully paid, and unconditional license to use and commercialize Work Product in any manner now known or in the future discovered. To the extent such license grant is not fully valid, effective or enforceable under mandatory law, Provider hereby irrevocably agrees to grant, and hereby grants, to Buyer, such rights as Buyer reasonably requests in order to acquire, as close as possible, all rights equivalent to full legal ownership. In order to ensure that Buyer will be able to acquire, perfect and use such Proprietary Rights, Provider will: (i) transfer possession, ownership, and title to media, models, and other tangible objects containing Work Product to Buyer; (ii) sign any documents at Buyer's request to assist Buyer in the documentation, perfection and enforcement of its rights; and (iii) provide Buyer with support and reasonable access to information for recording, perfecting, securing, defending, and enforcing such Proprietary Rights. Provider also irrevocably authorizes Buyer to act and sign on Provider's behalf and take any necessary steps in order to perfect Buyer's rights under this Agreement. In case that under mandatory law, Provider retains any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights" (collectively "Moral Rights") or other inalienable rights to Work Product or Confidential Information under this Agreement, Provider irrevocably agrees to waive, and hereby waives, all such rights, or, to the extent Provider cannot waive such rights, Provider agrees not to exercise such rights, until Provider has provided prior written notice to Buyer and then only in accordance with any reasonable instructions that Buyer issues in the interest of protecting its rights. Provider agrees to assist Buyer in every proper way to obtain and enforce the Proprietary Rights and other legal protections for the Work Product in any and all countries.
Provider will sign documents that the Buyer may reasonably request for use in obtaining and enforcing such protection, including, but not limited to, any assignment deed which the Buyer may select at its sole discretion. Provider's obligations under this Section 2.5 will continue even after Provider deregisters from or ceases use of the Forum Booster Content Market. Provider appoints Buyer as Provider's attorney-in-fact to execute documents on Provider's behalf for the purposes set forth in this Section 2.5.
2.6 Pre-existing IP in Work Product. User shall ensure that no Work Product created or delivered by User as a Provider includes any pre-existing IP or copyright, whether such pre-existing IP or copyright is owned by User or a third party, (collectively "Pre-existing IP") without obtaining the prior written consent of the Buyer to the inclusion of such Pre-existing IP in the Work Product. User acknowledges that, without limiting any other remedies, User shall not be entitled to payment for, and shall refund any Provider Fees paid to User for, any Services performed on an Assignment if the Work Product contains any Pre-existing IP that was not approved in accordance with this Section 2.6.
2.7 General. Service Contracts shall be governed by Sections 5 (Confidential Information) 12 (General) and 13 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
2.8 Entire Agreement. The terms and conditions set forth in this Section 2 and/or any additional or different terms expressly agreed by Buyer and Provider through the Echo Marketplace shall constitute the entire agreement and understanding of Buyer and Provider with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
2.9 No Contracts outside the Forum Booster Content Market. User, whether as a Buyer or Provider, agrees to use the Forum Booster Content Market to enter into all contracts with other Users and shall take no steps to use any other means to enter into any contract with any other User that was introduced through the Forum Booster Content Market.
3. ACKNOWLEDGMENTS BY USER OF ECHO'S ROLE.
3.1 Service Contracts. User expressly acknowledges, agrees and understands that: (i) the Forum Booster Content Market is merely a venue where Users may act as Buyers or Providers; (ii) Echo shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (iii) Echo has no control over Providers or over the Services promised or rendered by Providers; and, (iv) Echo makes no representations as to the reliability, capability, or qualifications of any Provider or the quality, security or legality of any Service, and Echo disclaims any and all liability relating thereto.
3.2 Echo Tools. Echo and its licensors reserve all Proprietary Rights in and to the Echo Tools. User may not use the Echo Tools except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement and on the terms set out in the License Agreement. Without limiting the terms of Section 12.5, Echo reserves the right to suspend or terminate User's access to the Forum Booster Content Market and Echo Tools at any time in its sole discretion, and to withdraw, expand and otherwise change the Forum Booster Content Market and Echo Tools (including the functionality of the Echo Tools) at any time in Echo's sole discretion. Without limiting any provisions contained in the License Agreement, User shall not be entitled to create any "links" to the Echo Tools, or "frame" or "mirror" any content contained on, or accessible through, the Echo Tools, on any other server or internet-based device.
3.3 Echo's Compensation. Echo is paid its fees for the maintenance of the Forum Booster Content Marketplace. All fees are non-refundable, whether or not Assignments were satisfactorily completed. Buyer may request credit for any services that do not meet buyers qualifications of quality within 3 business days that the work product or service is posted in the Buyers log in area of the Forum Booster Content Marketplace. That credit may be used to work with a different provider. Echo may approve this credit at its sole discretion.
4. FEES AND PAYMENTS.
4.1 Provider Fees. Echo shall act as a payment processor for Provider Fees as set forth in the Billing and Payments Policy.
4.2 Formal Invoices and Taxes. Echo shall have the responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Provider Fees.. Provider shall also be solely responsible for: (a) determining whether Provider or Echo is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Provider Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Echo, as appropriate; and (b) determining whether Echo is required by applicable law to withhold any amount of the Provider Fees, notifying Echo of any such requirement and indemnifying Echo (either by permitting Echo to offset the relevant amount against a future payment of Provider Fees or by refunding to Echo the relevant amount, at Echo's sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. Echo shall have the right, but not the obligation, to audit and monitor Provider's compliance with applicable tax laws as required by this Section 4.2.
4.3 Invoices to Buyer. Buyer will pay Fees in accordance with current bill rates posted on the Forum Booster Content Marketplace. Echo may allow Buyer to be invoiced, as opposed to pre-paying, for services at its sole discretion. Any credit and invoicing terms will be defined in a Insertion order to accompany each project and to be agreed to by Buyer. If Buyer believes a charge to be incorrect, Buyer shall notify Echo within 3 business days that a job is marked as complete in the Forum Booster Content Marketplace, in which case Echo will investigate, in its sole discretion, whether an adjustment is appropriate. Echo's determination shall be final. If Buyer does not notify Echo within this time, the charge automatically becomes final.
4.4 Payment. Unless invoicing terms are determined Buyer agrees to pay for all services using PayPal or any payment service made available through the Forum Booster Content Market.
4.5 Dispute Resolution Policy. All disputes between a Provider and a Buyer regarding a purchased service shall be managed by Echo. Provider disputes must me made via email within 3 business days that a project is posted as complete in the Forum Booster Content Marketplace. Echo will investigate the dispute with the Provider. The provider WILL NOT be paid until a decision is made on the case. If the disputed service does not meet the criteria for the quantity of services provided, the charges will be refunded. In all cases where mediation is required, Echo will carefully consider any information presented regarding the contested services, but will primarily base the decision on the quantity of work completed and not the perceived quality of work..
4.6 No Direct Payments. Buyer shall (i) make all payments relating to, or in any way connected with, an Assignment (including, without limitation, bonuses) through the payment channels provided or specified by Echo, and (ii) not make any such payments directly to a Provider or through any other payment channels. Buyer shall immediately notify Echo if a Provider requests that Buyer make a payment directly to it or through any channels other than those provided or specified by Echo. Provider shall not accept any payments relating to an Assignment (including, without limitation, bonuses) from a Buyer directly or through any payment channels other than those provided or specified by Echo. Provider shall immediately notify Echo if a Buyer or any of its agents attempts to make a payment to Provider directly or through any payment channels other than those provided or specified by Echo. Buyer and Provider agree that any payments outside of the Forum Booster Content Marketplace constitute a material breach of this agreement. Buyer and Provider are equally and severally liable to pay Echo 100% of any and all payments made outside of the Forum Booster Content Marketplace along with attorney's fees.
5. CONFIDENTIAL INFORMATION.
5.1 Confidentiality. To the extent a Buyer provides Confidential Information to a Provider or to Echo, the Provider or Echo (as the case may be) shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not: (i) disclose Confidential Information to anyone except, in the case of Echo, to any Provider engaged by Buyer for the Assignment; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Assignment (including, without limitation, the storage or transmission of Confidential Information on or through Echo Tools for use by Provider). Provider will treat the name and work of any Buyer as confidential information. Provider may not publicly disclose, whether direct or indirectly, any work that it has done for buyer.
5.2 Return. If and when Confidential Information is no longer needed for the performance of Services for the relevant Assignment, or at the Buyer's written request (which may be made at any time at Buyer's sole discretion), Provider or Echo (as the case may be) shall promptly destroy or return to Buyer all Confidential Information and any copies thereof contained in or on its premises or systems or otherwise under its control. Provider and Echo agree to provide written certification to Buyer of compliance with this Section 5.2 within ten (10) days after the receipt of Buyer's written request to certify.
5.3 Publications. Without limiting Section 5.1 (Confidentiality), neither Provider nor Echo shall publish, or cause to be published, any Confidential Information or Work Product.
5.4 Provider agrees to hold Buyer names all work completed as confidential. Provider agrees not to disclose any details related to the work completed for any Buyer.
6. WARRANTY DISCLAIMER.
ECHO MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, ECHO TOOLS, ECHO MARKETPLACE OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ECHO DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 9.2 (TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST ECHO WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
7. LIMITATION OF LIABILITY.
IN NO EVENT WILL ECHO BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF ECHO TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY ECHO FEES RETAINED BY ECHO WITH RESPECT TO ASSIGNMENTS ON WHICH USER WAS INVOLVED AS BUYER OR PROVIDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
8.1 Proprietary Rights. Each User shall indemnify, defend and hold harmless (on a monthly basis, as costs are incurred) Echo and its subsidiaries, affiliates, officers, agents, employees, representatives and co-branders or other partners (each an "Indemnified Party" for purposes of this Section 8) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights, Copyrights, or other rights of any third party.
8.2 Indemnification by Buyer. Each Buyer shall indemnity, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Buyer's use of Services, including without limitation claims by or on behalf of any Provider for Worker's Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Buyer and a Provider.
8.3 Indemnification by Provider. Each Provider shall indemnity, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to (i) such Provider's provision of Services, or (ii) any Service Contract entered into between such Provider and a Buyer.
9. TERM AND TERMINATION.
9.1 Term. The term of this Agreement commences on the Effective Date and continues in effect until terminated in accordance with Section 9.2 below.
9.2 Termination. Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party, provided that any such termination for convenience shall not affect the validity of any Service Contracts that have been concluded prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.
9.3 Consequences of Termination. Termination shall not relieve Buyer of the requirement to pay for services purchased or ordered prior to the effective date of the termination, Subject to Section 4.5 (Dispute Resolution Policy), Echo shall pay Provider, in accordance with the provisions of Section 4 (Fees and Payments), for all tasks incurred prior to the effective date of the termination.
9.4 Survival. Sections 3 through 13 of this Agreement shall survive any termination thereof.
10. AUDIT RIGHTS.
Buyer and Provider each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to Echo upon request. Echo, or Echo's advisors or agents, shall have the right, but not the obligation, to routinely, but no less frequently than annually, audit Provider's operations and records to confirm compliance.
11. ENTIRE AGREEMENT; PREVIOUS AGREEMENTS AND ONGOING ASSIGNMENTS.
11.1 Entire Agreement. This Agreement, including the incorporated Policies, sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.2 Rights and Obligations under Previous Agreements. As of the Transition Date, User shall have no rights against Echo under Previous Agreements except that User remains entitled to any fees for Services which User has become entitled to receive from Echo under the terms of such Previous Agreements and which Echo has not remitted as of the Transition Date. Echo remains entitled to payment on invoices for Assignments commenced under Previous Agreements with User. User's continued use of the Forum Booster Content Market as a Buyer or Provider on or after the Transition Date shall be solely governed by the terms of this Agreement.
11.3 Ongoing Assignments. Failure by any Buyer to terminate any Assignment commenced under a Previous Agreement prior to the Transition Date ("Ongoing Assignment") constitutes an offer to the Provider under such Ongoing Assignment to continue the Ongoing Assignment under a Service Contract with the terms and conditions set forth in Section 2 (Service Contract Terms Between Buyer and Provider) or any other terms expressly agreed to by the Buyer and the Provider through the Forum Booster Content Market ("Offer to Continue"). A Provider's continuation of work on any Ongoing Assignment on or after the Transition Date constitutes the Provider's acceptance of the Buyer's Offer to Continue such Ongoing Assignment.
11.4 No Violation of Non-Solicitation Provisions. Under no circumstances shall participation in and interaction with other Users exclusively through the Forum Booster Content Market be viewed as a prohibited solicitation under the terms of any Previous Agreement. Without limiting the generality of Section 11.1, any non-solicitation and/or no-hire clauses under Previous Agreements are cancelled.
12.1 No Employment. User acknowledges and agrees that this Agreement does not constitute an employment agreement or create or acknowledge an employment relationship (neither with Echo nor with any other User). The parties shall be independent contractors at all times and not partners, joint venturers or otherwise participants in a joint undertaking.
12.3 Compliance. User shall not violate any laws or third party rights on or related to the Forum Booster Content Market. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties' Proprietary Rights.
12.4 Notices; Consent to Electronic Notice. You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Forum Booster Content Market. Notices hereunder shall be invalid unless made in writing and given (a) by Echo via email (in each case to the address that you provide), (b) a posting on the Echo Site or (c) by you via email to firstname.lastname@example.org or to such other addresses as Echo may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
(a) Echo reserves the right in its sole discretion to amend this Agreement without advance notice. Modifications to this Agreement or any Policies will be posted on the Site or made in compliance with any notice requirements set forth in this Agreement. Subject to Section 9, if any modification is not acceptable to you, your only recourse is to cease using the Forum Booster Content Market. By continuing to use the Forum Booster Content Market after Echo has posted any modifications on the Site or provided any required notices, you accept and agree to be bound by the modifications.
(b) Except only as permitted by Section 12.5(a), no modification or amendment to this Agreement shall be binding upon either party unless in a written instrument signed by a duly authorized representative of each party (and, for the purposes of this Section 12.5(b), a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles).
12.6 Dates and Timelines. All references to days shall be to business days (Monday to Friday, GMT, excluding bank holidays), except as expressly noted otherwise.
12.7 No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative.
12.8 Assignability. User may not assign this Agreement, or any of its rights or obligations hereunder, without Echo's prior written consent in the form of a written instrument signed by a duly authorized representative of each party (and, for the purposes of this Section 12.8, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). Echo may freely assign this Agreement without consent of User. For the purposes of this Agreement an assignment will be deemed a "Change of Control." Any attempted assignment or transfer in violation of this Section will be null and void. A "Change of Control" means (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
12.9 No 3rd Party Beneficiary Rights. Except as specified in Sections 1 (The Echo Marketplace) and 2 (Service Contract Terms Between Buyer and Provider), this Agreement shall: (a) create rights and obligations only between Echo and each individual User that accepts this Agreement; and (b) not create any rights for any other parties. For the avoidance of doubt, without any limitation, no user shall be entitled to enforce the terms of this Agreement as they apply between Echo and another user.
12.10 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
12.11 Choice of Law. This Agreement and any dispute arising out of or relating to this Agreement ("Dispute") shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12.12 Arbitration. All Disputes shall be finally resolved by binding arbitration before three (3) arbitrators, selected and proceeding pursuant to the International Arbitration Rules of the International Centre for Dispute Resolution (ICDR), in the English language, in San Francisco, California, or any other location on which all three arbitrators unanimously agree. The arbitrators shall, at either party's request, give a written opinion stating the factual basis and legal reasoning for the decision in the English language. The arbitrators so appointed shall have the authority to determine issues of arbitrability. The arbitrators shall have the authority to award compensatory damages only and shall not award punitive or exemplary damages. The parties, their representatives, other participants and arbitrators shall hold the existence, subject matter and result of arbitration in confidence. Notwithstanding the foregoing, either party may, at its sole discretion, seek injunctive relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). The prevailing party in any legal proceeding brought by one party against the other party in a Dispute shall be entitled to recover its legal expenses, including, but not limited to, the costs of any court or arbitration proceeding and reasonable attorneys' fees.
12.13 Prevailing Language. The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
13.1 "Assignment" means a particular project or set of ongoing tasks for which a Buyer has requested Services to be performed by a Provider.
13.2 "Buyer" means any company or individual, including User, utilizing the Echo Marketplace to request Services to be performed by a Provider.
13.3 "Confidential Information" means Buyer Deliverables, Work Product, and any other information provided to, or created by, a Provider for an Assignment, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Provider or Buyer; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by Provider prior to receiving it from Buyer and was not received from a third party in breach of that third party's obligations of confidentiality; or (d) was independently developed by Provider without use of Confidential Information.
13.4 "Buyer Deliverables" means instructions, requests, IP and any other information or materials that a Provider receives from a Buyer for a particular Assignment.
13.5 "Effective Date" means the date of acceptance of this Agreement.
13.6 "Fixed Price Assignment" means an Assignment for which Buyer is charged a Fixed Price.
13.7 "IP" means any computer programs or routines (in object code, source code, or embedded format, regardless of the medium on which it resides), algorithms, know-how, hardware and/or software configurations, inventions, documentation, translations, text and other works of authorship, data, databases, information, designs, utility models, symbols, logos, marks, names, procedures, processes, technical improvements and any other intangibles as well as the prototypes, samples, copies, and other materialized forms of the foregoing intangibles.
13.8 "License Agreement" means the license agreement between User and Echo relating to use of the Echo Tools software.
13.9 "Echo Tools" means any software, information and other items provided by Echo, subject to change and update by Echo from time to time at Echo's sole discretion.
13.10 "Payment Period" shall mean the four (4) or five (5) week period beginning on the Monday following the prior Payment Period and ending on the Sunday nearest to the last day of the relevant month.
13.11 "Proprietary Rights" means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to IP, recognized in any jurisdiction, whether or not perfected.
13.12 "Provider" means any company or individual, including User, utilizing the Echo Marketplace to offer Services for Buyers and/or to enter into Service Contracts.
13.13 "Provider Fees" means: (a) for a Bill Rate Assignment, an amount equal to the number of tasks recorded by Provider in the Forum Booster Content Market, multiplied by the Bill Rate; (b) for a Fixed Price Assignment, the Fixed Price; and (c) any bonuses paid or other payments made by a Buyer for an Assignment.
13.14 "Services" means content development and other task-based content services.
13.15 "Transition Date" means the Monday following the end of the last Payment Period under any Previous Agreement between User and Echo or, if there is no such Previous Agreement, the Effective Date.
13.16 "Work Product" means any tangible or intangible results or deliverables that Provider agrees to create for, or actually delivers to, Buyer as a result of performing the Services on a particular Assignment, including, but not limited to, copy, website postings, articles, and any IP developed in connection therewith.
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