This Client Agreement (“Agreement”) is entered into by and between Mothership Transports Corporation (“Mothership” or “MTC”) and you (“you” or “You”). You and MTC may also be referred to individually as a “Party” and, collectively, as the “Parties.”
WHEREAS, MTC has developed, owns and operates the platform known as MOTHERSHIPCORP.COM and such other related online and physical sites as MTC may create and partner with (collectively, the “Site”); and
WHEREAS, the Site gives individuals and businesses, including, where the context is appropriate, you (each, a “Client”) an opportunity to obtain a variety of professional and freelancer services (“Services”) in connection with your needs, job or project (each, a “Project”) at prices each controls by selecting the level of expertise and qualifications along with the amount of time to which each is prepared to commit; and
WHEREAS, any services provided by MTC or freelancers who provide services to you through the Site shall be included in “use” of the Site.
WHEREAS, the Site gives service providers (each, a “Provider”) an opportunity to render services to and for Clients in a variety of fields and disciplines.
THEREFORE, the Parties agree as follows:
1 AGREEMENT TO BE BOUND
As a condition of using the Site to seek and obtain Services from a Provider, you acknowledge that you have read this Agreement, you understand this Agreement and you agree with each and every term of this Agreement.
MTC reserves the right to review and approve or reject, in its sole and absolute discretion, any request for Services.
In the process of applying to provide Services to Clients, MTC will evaluate each Provider application and, if accepted in MTC’s sole and absolute discretion, will include each Provider in one or more of three (3) categories of fees for which Clients will pay an amount determined by MTC for the Services, in its sole and absolute discretion, for each block of 60 minutes (each, a “Block”) (described in more detail, below) (“Provider Fees”). The prices of Blocks will be determined solely by MTC for each category of Services based on the requisite skills required, degree of experience of each Provider and the level of fees to be paid to the respective Providers.
FOR CLIENTS OF ATTORNEYS AND OTHER LICENSED PROFESSIONALS
MTC recognizes that freelancer sites afford many Clients the opportunity to obtain legal and other assistance in situations and under conditions that might have been unaffordable, uncomfortable or impractical prior to recent technological developments. MTC also recognizes that the rules or codes of conduct or ethics of certain national or regional jurisdiction by an appropriate governmental or professional association or organization, such as a state bar association (each, a “Licensing Authority” and, collectively, “Licensing Authorities”) may not be precisely consistent with the manner in which some freelancer sites function. Nevertheless, the public policy of virtually all such Licensing Authorities is in favor of and in support of platforms that enable Clients to obtain qualified assistance at reasonable prices; and it is MTC’s belief that Licensing Authorities throughout the US and elsewhere are considering or will consider changes in their respective rules and codes to make them consistent with the “gig economy” and clarify any conflicts that may exist between the technical terms of their respective rules and the current state of technology.
Having said that, inconsistencies still exist. A waiver of liability for any such conflict is included within the “Waivers” section of this Agreement.
3 THE PROCESS AND YOUR ROLE
3.1 The Discovery Phase
You will register your interest in engaging a Provider to render the requested Services for your Project. You will fill out a form with questions designed to give Providers a general idea as to the nature and conditions of the Project.
Upon submitting your request for Services by Providers with your chosen level of expertise and budget, you will have the option of:
- purchasing One (1) Block that you can use to receive up to One (1) paid hour of time to discuss your Project with a Provider matched to your wants and needs by MTC and, in the event you decide to continue with MTC to receive the Services, you can purchase additional Blocks and retain the Provider with whom you communicated for the discovery meeting or MTC will select an alternative Provider, or
- becoming a member (see separate membership application) and having the option to select your own Provider as your first Block is booked and at any time thereafter.
The price paid by you to MTC for Blocks is not a deposit or an amount to be held by MTC in escrow. It is a fee for Services and MTC pays each Provider to provide those Services as an independent contractor to MTC. There are no hidden or surprise fees. The price of a Block is the price for One (1) hour of Services by your designated Provider, exclusive of out-of-pocket costs that your Provider may incur with your prior approval, such as filing fees, supplies or outside services (e.g., printing).
You may have the option to purchase additional goods and services from MTC, which will always be your decision and never automatically included in your billing.
After you have purchased at least One (1) Block to begin, MTC will invite those Providers who best match the criteria you established in your initial services/job description to engage in a telephonic, in-person or virtual/online (depending on your preference) discovery meeting about the Project.
The first Provider to accept the invitation will be the “Discovery Provider.” The Discovery Provider will spend up to one (1) hour (but it could be less) in a “Discovery Meeting” with you to discuss the Project and its scope.
Upon acceptance of a Project by a Provider, the Provider will be given access to your name and other information relevant to the Project BUT NO PERSONAL INFORMATION SUCH AS ADDRESS, TELEPHONE OR EMAIL. All communications shall go through the Site which shall provide audio, video and email, as well as document transfer and storage. Notice of any delivery by or to you (other than those delivered during an active conversation between you and Client) will be sent by MTC to the recipient’s MTC email.
The Discovery Meeting is to assess the Project and your needs, and to estimate the number of Blocks required to complete the Project. If your needs can be fully addressed within that Discovery Meeting and no additional time is required for that particular Project, the Project will be deemed completed.
The Discovery Meeting and the Discovery Provider are important because it is the first time you will communicate with a live person through MTC. It is your opportunity to evaluate the caliber of person MTC can make available to you. HOWEVER, YOU ARE NOT COMMITTED TO CONTINUE TO WORK WITH THE DISCOVERY PROVIDER.
3.2 The Execution Phase
After the Discovery Meeting, if the Project has not been completed during the Discovery Provider and you would like to continue with MTC, you may provide additional details and may modify the scope; which may require the purchase of Blocks in addition to those recommended by the Discovery Provider in the Discovery Meeting.
Upon purchasing additional Blocks, you will have the opportunity to approve and accept the notes and comments of the Discovery Provider or modify those notes/comments which will be available to your Provider before work begins.
You may purchase additional Blocks to execute the requested Services and the Project. Blocks that are wholly unused may be refunded, less a Twenty Percent (20%) processing fee. Partially unused Blocks are not refundable.
You have the option at any time to switch to a new Provider for any reason – or no reason.
At that point, you will have 3 options:
- If you are comfortable with and have confidence in your Discovery Provider, you can utilize the Discovery Provider for your Project.
- If, for any reason (which reason you do not have to share but, if you do, it will help us improve the Site and what we can do for our Clients), you prefer to work with someone other than the Discovery Provider, MTC will assign you a different Provider when you select the switch provider option.
- If you would like to choose a Provider with whom you’ve worked in the past or someone who was referred to you, you can become a member of MTC (see the separate Membership Agreement). If you are a member of MTC and you have requested a specific Provider, such Provider can, in his or her sole discretion, accept or refuse an invitation to your Project.
In the execution of a Project, the Provider will keep accurate records of any and all time expended in connection with such Project, whether for research, drafting, entering and approving/editing notes on Ground Control (MTC’s project management tool), telephone, email, in-person or other calls and execution.
Any Client-approved expenses incurred or other fees paid by a Provider in connection with a Project shall be invoiced to you through the Site using only invoice forms provided by MTC in Ground Control, and payable by you within one (1) week after the date of invoice; provided, however, if the invoice has not been paid within such time, the Provider may, at his/her option, convert the amount of such invoice plus ten percent (10%) to time and apply such time to the clients purchased Blocks.
For example, if an attorney files a trademark application that requires a $225 filing fee to the US Patent and Trademark Office, that $225 will be recorded in the Ground Control Notes for the Project and will be invoiced to the Client through the Site’s reimbursable expenses tool using the site’s invoice template forms available via the Ground Control communication tool under “forms.” If the Client does not pay such invoice within one (1) week, the Provider may, if he/she elects, convert that $225 + 10%, a total of $247.50, to an equivalent of time to be recorded against the Blocks purchased by the Client. If the Blocks purchased by the Client who requested filing of a trademark application were $300 per hour, then this filing fee would represent 50 minutes and would be deducted from the remaining available time. If the Blocks purchased by the Client were $200 per hour, the $225 filing would represent 1 hour and 15 minutes.
3.3 The Completion Phase
Upon completion of a milestone hour or block of hours or the Project, the Provider will submit the respective milestone or Project to you as having been completed for approval by you. You will have five (5) business days to accept that submission or dispute it. If you neither accept nor dispute the submission within five (5) business days, the milestone or Project will be deemed approved. If you dispute the submission, such dispute shall be resolved in the manner provided hereinbelow for disputes between Clients and Providers; provided, however, that the Provider shall not be obligated to continue providing services for the Project or for the Client until any such dispute is resolved.
Your Provider will be paid within up to seven (7) days after you accept a completed milestone or Project, or resolution of a dispute as between you and the Provider in the Provider’s favor.
You may, at any time and in your sole discretion, pay your Provider a bonus for a job well-done in addition to the fees. The amount and timing of bonuses is, also, solely within your discretion.
If a Provider is, at any time, pressuring you for a bonus or telling you/suggesting that the bonus or other payment for his/her Services in addition to your purchase of Blocks is required, please report this to MTC at once and MTC will take appropriate action.
4 RELATIONSHIP WITH MTC AND THE CLIENT
The price you pay to MTC for Blocks is for time and certain administrative services. The administrative services MTC provides include operation of the Site, recruitment and approval of Providers, review and suggestion of MTC Providers who appear to be appropriate for your specific request(s), handling of fees and resolution of disputes, if any, and providing Mothership Video chat/communication tools. OTHER THAN THE CERTAIN ADMINISTRATIVE SERVICES, YOU ARE NOT PURCHASING ANY PROFESSIONAL OR FREELANCER SERVICES DIRECTLY FROM MTC. ALL PROFESSIONAL OR FREELANCER SERVICES ARE BEING DELIVERED TO YOU BY AN INDEPENDENT PROVIDER, WHO IS SOLELY RESPONSIBLE FOR THE PERFORMANCE, QUALITY AND ACCURACY OF THE SERVICES.
If you receive Services from a Provider through MTC, then, with respect to the Services, this Agreement will be between you and the Provider. Nevertheless, MTC is a third-party beneficiary of the contract to the extent that the services rendered to you will have been paid for based on time purchased from MTC; and MTC shall be responsible for paying the Provider.
Services are provided based on the number of One (1) hour Blocks you purchase. It is a violation of the rules of MTC to ask for free Services. You should not be offended if a Provider advises you that the Blocks you purchased have been used and/or indicates he/she will suspend the Services until additional Blocks have been purchased. If you feel that the
 “Approval” is with respect to the qualifications as represented by the provider and a background check..
use of that time has been inappropriate, you are welcome to follow the procedure for disputes provided hereinbelow.
MTC and the Providers are independent contractors with respect to you. Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between you, MTC and/or a Provider.
While MTC will facilitate introductions as between you and the Providers, the Provider will be providing Services directly to you, not to MTC. The Provider is solely and exclusively responsible for the quality and accuracy of the Services he or she renders to you. If you have any concerns about the quality or accuracy of the work, or feel the time you purchased was mismanaged, you have the right to file a dispute in accordance with the procedure for disputes described hereinbelow.
Each Provider is also an independent contractor of MTC. If any Provider represents, suggests or conveys the impression that he/she is an employee of MTC, please advise MTC.
5 PROFESSIONAL STANDARDS
5.1 Of the Providers
While Providers are independent contractors, each responsible for the manner in which they provide the Services, they are expected to conduct themselves in accordance with the following standards. Should you feel that any Provider has violated any of these standards, please advise MTC.
a) A Provider should, at all times and in all respects, be professional and courteous.
b) A Provider should strive to listen carefully to you, both the literal words and what you mean, if you do not or cannot properly verbalize your needs and goals.
c) A Provider should not mislead you for the purpose of encouraging you to purchase more Blocks than are reasonably necessary to complete the milestone or the Project.
d) A Provider should not ask or answer questions of a personal nature, except as they may be reasonably necessary for you to perform the services requested for the Project.
e) A Provider should not ask questions or make comments of a discriminatory or offensive nature.
f) A Provider should not start or continue a Project, the scope of which has changed, until approved by you.
g) A Provider should not ask for or use personal and direct contact information of a Client.
5.2 Of Clients
Notwithstanding the independent contractor nature of the relationships between you, MTC and the Providers, and that you, as the Client, are paying for the services of both MTC and the Providers, you are expected to conduct yourself in accordance with the following standards.
a) At all times and in all respects, be professional and courteous with the Providers.
b) Do your best to express yourself clearly and do not take offense or respond rudely if a Provider, in his/her effort to better understand your goals and needs, asks you to repeat or clarify something.
c) Do not ask or answer questions of a personal nature, except as they may be reasonably necessary for you to evaluate the appropriateness of the Provider for the Project.
d) Do not ask questions or make comments of a discriminatory or offensive nature.
e) Do not ask for or use personal and direct contact information of a Provider.
f) Approve notes, milestones and Projects as soon as possible to make sure that Project completion happens in a timely manner.
g) Verify that everything discussed and agreed upon between you and your Provider is documented in Mothership’s back-end Ground Control project management tool to avoid miscommunication and disputes with Providers.
6 REPRESENTATIONS AND WARRANTIES
You are over the age of eighteen (18) and authorized to enter into this Agreement on behalf of yourself or, if you are entering into this Agreement on behalf of an entity, then by such entity.
The information provided in establishing your account with MTC is true and accurate in all respects, and that you will immediately update your account should any account information change.
The method of payment you have provided is yours and you do not require the authorization of any other party to incur the charges from purchasing Blocks or other goods and services on the Site.
You are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
7 CONFIDENTIAL INFORMATION
You may furnish to the Provider, orally or in writing, certain non-public, confidential, and proprietary information (collectively, “Confidential Information”). Confidential Information includes, but is not limited to: (a) information regarding the Project, graphics, designs, models, videos and storylines relating to the Project; (b) trade secrets, methodologies and business plans; (c) technology, listings or protocols embodied in computer systems and programs owned or held by you; (d) information regarding relationships, customers or employees, the manner in which you conduct business, the extent to which goods and services are offered to or used by customers, the costs to provide such goods and services, or your product and service development, operational or financial plans and/or expectations; (e) information and any idea in whatever form, tangible or intangible, pertaining in any manner to your business (or any affiliate of it that might be formed) or to your customers, consultants or business associates; and (f) any other information held by or concerning you which is not readily available to the public. Confidential Information expressly includes the existence and terms of this Agreement.
Providers, in their agreement with MTC and you, as a third-party beneficiary, have promised and agreed to hold Confidential Information in strict confidence and in trust for your sole benefit, both during the term of this Agreement and at all times thereafter, and shall not use such Confidential Information for any purpose, whether or not for consideration, business or personal, other than as may be reasonably necessary for the performance of its duties pursuant to this Agreement, without your prior written consent. The Provider shall not disclose any Confidential Information to any person or entity, other than to such of its employees or consultants as may be reasonably necessary for purposes of performing its duties hereunder and have executed agreements of confidentiality no less protective than this Agreement, without your prior written consent. The Provider shall use not less than the same degree of care it uses to protect its own Confidential Information, but in any event not less than a reasonable degree of care. For purposes of clarity, the obligations of the Provider include taking all actions necessary to ensure that its affiliates, employees, contractors and agents and any other person or party who obtains Confidential Information from or as a result of you abide by the terms of this section in their entirety.
Confidential Information does not include information that (1) is or becomes publicly known through lawful means; (2) was rightfully in the Provider’s possession or part of the Provider’s general knowledge prior to the effective date of this Agreement; or (3) is disclosed to the Provider without confidential restriction by a third party who rightfully possesses the information (without confidential restriction) and did not learn of it, directly or indirectly, from you.
If the Provider is required to disclose Confidential Information by virtue of a lawful court order, subpoena or similar legal request, the Provider will promptly notify you in writing of such requirement and cooperate so that you may seek an appropriate protective order. The Provider will not use, copy, publish, distribute or summarize any Confidential Information except as necessary to carry out the activities contemplated herein.
The Provider recognizes that you may have received from third parties their Confidential Information subject to a duty on your part to maintain the confidentiality of such information and to use it only for certain limited purposes. The Provider agrees that, upon notice of such third-party obligation, the Provider owes you and such third parties a duty to hold all such Confidential Information in the strictest confidence and not to disclose it to any person or entity or to use it for the benefit of anyone other than for you or such third party (consistent with your agreement with such third party) without your express written authorization.
ATTORNEY-CLIENT PRIVILEGE AND CONFIDENTIALITY
One of the most sacred aspects of the legal profession in the United States is the concept of attorney-client privilege. A discussion of the evolving technologies vis a vis existing rules and state bar codes of ethics is included hereinabove. However, the notion of privilege is one afforded by state law.
MTC utilizes state-of-the-art encrypted security measures (including but not limited to username and password protections) to protect the security and confidentiality of communications as well as documents, attachments and notes written in MTC’s Ground Control (collectively, “Communications”) transmitted via and/or stored by MTC. In the event of a dispute between you and your Provider and the application of mandatory mediation as provided hereinbelow, MTC may determine, in its sole and absolute discretion, that a resolution of such dispute necessitates a review of certain of such Communications. If and to whatever extent MTC becomes aware of any Confidential Information as between you and a Provider, MTC will treat such Confidential Information in the same manner as required of the Provider hereinabove and will use such Confidential Information, if at all, solely for the purpose of resolving such dispute between you and your Provider.
8 WORK FOR HIRE
Except as provided below, the Providers have acknowledged and agreed that all work produced by them (solely or jointly with others) within the scope of and pursuant to the terms of the Project shall be referred to as “Deliverables.” Deliverables shall also include any ideas, suggestions or proposals a Provider may have conveyed to you relating to the Project. Deliverables are and shall be "works made for hire" to the greatest extent permitted by applicable law, as defined on Section 101 of the Copyright Act (title 17 of the U.S. Code) or similar law of countries other than the United States, and for which the Provider is adequately compensated by the compensation specified in the Project. Deliverables shall be your sole and exclusive property. The Provider shall have no right, including moral rights, or claim in and to the Deliverables, which you may use or not use, edit, alter or do anything to the Deliverables in your sole and absolute discretion. Unless otherwise expressly agreed by you, the Provider shall receive no credit in or in connection with Deliverables included or used in any fashion with or in connection with the Project. The Provider has disclaimed and forever waived any claims of right, title, interest, additional consideration or credit with respect to the Deliverables commissioned hereunder.
If, for any reason, any of the Deliverables do not constitute a "work made for hire," the Provider agrees to irrevocably assign to you, in each case without consideration additional to the Provider Fees paid in connection with the Project, all right, title and interest throughout the world in and to the Deliverables, including all intellectual property rights therein; providing, however, if the laws of any jurisdiction prevent the Provider from making such an assignment, the Provider grants to you an exclusive, perpetual, royalty-free license within such jurisdiction to use, modify, sell, resell, license, sublicense, and/or incorporate such Deliverables into or with other your goods and services in your sole and absolute discretion. The Provider represents and warrants that all Deliverables shall be and shall contain exclusively work that is original to him/her (except for material in the public domain, material provided by you or material previously created and owned by the Provider) and that no other person has any right, title, interest or claim in or to any Deliverable or any element of any Deliverable; and the Provider agrees to indemnify you against any costs (including reasonable attorneys’ fees) or losses, including loss of business income and consequential damages, incurred by you as result of any third-party claims as to any Deliverable or any element of a Deliverable.
Any assignment of copyrights under this Agreement includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as "moral rights" (collectively, “Moral Rights”). The Provider hereby irrevocably waives, to the extent permitted by applicable law, any and all claims the Provider may now or hereafter have in any jurisdiction to any Moral Rights with respect to the Deliverables.
Upon your request, the Provider shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist you to prosecute, register, perfect, record or enforce your rights in any Deliverables. In the event you are unable, after reasonable effort, to obtain the Provider’s signature on any such documents, the Provider hereby irrevocably designates and appoints you as its agent and attorney-in-fact, to act for and on behalf of the Provider solely to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights or other intellectual property protected related to the Deliverables with the same legal force and effect as if the Provider had executed them. The Provider has agreed that this power of attorney is coupled with an interest.
Notwithstanding anything to the contrary contained herein and for the purposes of clarity, the foregoing rights of exclusivity with respect to right, title and ownership do not apply to Deliverables which, by their nature, include elements typically used by a provider in more than one project. While you will have unlimited right to use or modify your Deliverable as you deem appropriate, you cannot, provided the Provider observes and satisfies the conditions described below, object to the Provider’s further use of elements (including the totality of the Deliverable) for other Clients, claim exclusive ownership or rights to Deliverables provided to other clients and, in the case of a Deliverable falling within this paragraph, you cannot resell such a Deliverable. The conditions of such use by a Provider are that (1) no such use shall violate your Confidential Information, and (2) no such use shall diminish the value or use of such Deliverables by you (other than your not having the right to re-sell it or claim exclusive ownership). For example, a contract written for a Client is in compliance with this Agreement even if portions of such contract were created prior to the Project, are owned by the Provider and will be used again in future contracts for other clients by the Provider; and the Provider does not relinquish his/her rights to such portions. Subject to satisfying the above conditions, the Provider need not disclose or obtain consent from you or any other client in connection with using Deliverables or portions thereof for multiple clients.
9 LIMITED RIGHT OF USE
Unless the Client expressly directs otherwise in writing to the contrary, the Provider may use the Client’s trademarks, service marks, trade names, logos, symbols or brand names in and in connection with the Provider’s portfolio, bio or website in marketing the Provider on the condition that (1) no such use violates the Client’s Confidential Information, (2) no such use diminishes the value or use of such Deliverables by the Client and (3) the Provider shall not display any of the actual Deliverables without the Client’s prior written consent and outside of any parameters set by the Client, which consent may be withheld by Client for any or no reason.
10 CLIENT FEEDBACK
MTC may solicit feedback from each Client with respect to a Project and the respective Provider. MTC reserves the right to, or to not, follow-up, research or take any action with respect to such feedback. Such feedback will not be made public but will be taken into consideration in MTC’s decision whether to terminate or otherwise modify a Provider’s account.
In consideration for making the Site available to you, for marketing the Site, managing the Site, vetting Providers, selecting Providers based on your specific needs, resolving disputes and facilitating payments, you promise and agree that you shall not seek Services or make payments to Providers, directly or indirectly, outside the Site.
In the event you have the opportunity to employ on a full-time or other part-time or regular basis a Provider other than through the Site, compensated by periodic payments, you agree to immediately disclose such employment to MTC and agree to pay MTC an amount equal to twenty percent (20%) of the total compensation in connection with such Provider for the first year of employment, and agree to share any and all payment information or pay stubs given to such Providers. Failure to do so would entitle MTC to recover from you all legal fees in connection with investigating this matter and recovering funds.
For purposes of this section, any reference to “you” shall include employees, contractors or agents of yours.
You are solely and exclusively responsible for the security of your username and password. MTC shall be entitled to rely on the authority of any person using the username and password in providing information to and taking all actions that the authorized user would be entitled to take or direct, including the use of your authorized method of payment to purchase Blocks and/or other goods and services on the Site.
13 WARRANTY DISCLAIMER
MTC makes no representations or warranties as to the Site or the Services. To the maximum extent of the law, MTC disclaims all representations, warranties and conditions, express and implied, including the warranties of merchantability, fitness for particular purpose, title and non-infringement. The Site is provided “as is.”
You expressly and unconditionally waive any and all claims against MTC, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions:
- any unauthorized person uses your username and password to the Site for any purpose and with any result, including but not limited to making changes or incurring charges in your approved payment method
- the Site is partially or totally inoperative or inaccessible
- your use of the Site
- viruses or other malicious software are transferred to your computer by using the Site
- there are bugs, errors or inaccuracies in the Site
- third-party content, actions or inactions on or with respect to the Site
- claims related to the manner or outcome of MTC’s resolution of a dispute as between you and a Provider
- the manner in which Providers are selected to be your Discovery Provider or other Provider
- a suspension or other action taken with respect to your account by MTC
- any claim relating to in-person appointments with Providers
- any claim relating to a change in this Agreement by MTC
- any claim regarding the quality or accuracy of work performed advice given by a Provider
- any delay or impact of any kind resulting from a Provider failing to communicate, resigning or otherwise not performing in the time frame agreed
- any issues related to Provider-Client confidentiality
- any issues related to attorney-client privilege
- misrepresentations by Providers of their respective qualifications, background and capabilities
- the selection of any particular Provider by MTC for your Project
For purposes of this section, any reference to “MTC” shall include MTC’s affiliates, officers, employees, principals, agents and contractors.
No waiver by MTC of any breach by you of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by MTC in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
MTC and its affiliates, owners, principals, officers, employees and agents shall be referred to, collectively, as “MTC Indemnitees.”
You agree to and shall indemnify, defend (with legal counsel reasonably acceptable to MTC Indemnitees) and hold MTC Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from:
- any misrepresentation by, or breach of any covenant or warranty of yours contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by you hereunder
- any non-fulfillment of any agreement on the part of you under this Agreement
- any suit, action, proceeding, claim or investigation against MTC Indemnitees which arises from or which is based upon or pertaining to your acts or omissions or conduct of business, including but not limited to use of the Site and the Services of a Provider
- any injury to person or property caused, all or in part, by you or your employees, contractors and agents
- failure to comply with the terms of this Agreement by you or your employees, contractors and agents
- failure to comply with applicable law by you or your employees, contractors and agents
- negligence, willful misconduct, sexual harassment, indecent exposure or fraud by you or your employees, contractors and agents
- defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you or your employees, contractors and agents
- your withholding of information regarding or your misrepresentation of your status in regard to your representations and warranties
If any lawsuit, enforcement action or any attempt to collect on an alleged liability is filed against MTC Indemnitees, written notice thereof shall be given to you within ten (10) business days after receipt of notice or other date by which action must be taken; provided, however, that the failure of MTC Indemnitees to give timely notice shall not affect its rights to indemnification hereunder except to the extent that you demonstrate damage caused by such failure. After such notice, you shall be entitled, if you so elect, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of your own choice (subject to the reasonable approval of MTC) to handle and defend the same, at your reasonable cost and expense. MTC Indemnitees shall cooperate in all reasonable respects, at your cost and expense, with you and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. You shall not, without the prior written consent of MTC Indemnitees, effect any settlement of any proceeding in respect of which MTC Indemnitees is/are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by you and includes an unconditional release of MTC Indemnitees from all liability on claims that are the subject matter of such proceeding.
If you shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then MTC Indemnitees shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as MTC Indemnitees, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by you upon demand by MTC Indemnitees.
16.1 TERMINATION OF A MILESTONE OR A PROJECT
You may terminate or pause one or more milestone(s) or the entire Project at any time upon written notice by clicking on “terminate project” or “switch” or “pause” in the Client’s Project Ground Control management panel. Such a termination or pause may be to end a particular milestone or Project with MTC or to end it with respect to a given Provider because you wish to change Providers. From that moment on, there shall be no additional billing by the Provider except as to time used prior to the termination or approved expenses incurred prior to the termination. Any dispute associated with such termination shall be resolved as provided hereinbelow.
16.2 TERMINATION OF THIS AGREEMENT
You may terminate this Agreement upon written notice to MTC at any time without cause; provided, however, that upon termination by you, MTC may charge your authorized method payment for expenses not yet processed by the Provider.
Subject to specified provisions of this Agreement surviving termination, MTC may terminate this Agreement upon written notice to you at any time without cause; such termination to be effective on the later of the effective date stated in such writing or completion of the then-current milestone or Project.
Except as otherwise required by law, you will have access to Ground Control Notes or other documents on the Site for Thirty (30) days after termination of this Agreement for purposes of downloading and copying documents and files relating to your Project.
17.1 DISPUTES BETWEEN PROVIDERS AND CLIENTS
If and to the extent a dispute arises between you and a Provider relating to the fees paid or to be paid to the Provider or the Services, and to the extent permitted by law (or not prohibited by applicable Licensing Authorities), you (and the Provider in his/her/its Provider Agreement) agree that such dispute will be resolved exclusively by MTC, in MTC’s sole and absolute discretion, and that in resolving any such dispute, MTC may consider whatever evidence MTC deems appropriate.
All decisions by MTC shall be final and non-appealable.
All disputes must be made not later than seven (7) days after achievement of the respective milestone or completion of the respective Project. Failure to make a claim within that period will render the dispute moot and resolution will be in favor of the Provider.
In no event may you claim damages of any kind for any reason in excess of the amount paid for Blocks used in connection with the Project subject to dispute.
17.2 DISPUTES BETWEEN YOU AND MTC
If and to the extent any dispute or claim as between you and MTC relating to this Agreement cannot be resolved as the result of good faith negotiations, such dispute or claim shall be resolved exclusively by arbitration in Miami-Dade County, Florida, under and pursuant to the rules of the American Arbitration Association for Miami-Dade County, in accordance with the laws of the State of Florida, without regard to its conflict of law provisions. The prevailing Party shall be entitled to recover its cost and reasonable attorneys’ fees incurred in connection with such action from the other party.
You agree that any dispute you may bring to arbitration shall be as an individual only, not as a class or with or behalf of anyone else. You expressly waive any right to bring a class or collective action, or be a member in a class or collective proceeding. This arbitration may be forced under the Federal Arbitration Act and MTC may take any and all actions necessary to dismiss a class or collective actions or claims thereunder.
Notwithstanding the foregoing, in the event that monetary damages are not a sufficient remedy for any threatened or actual breach of this Agreement, in addition to monetary damages, either Party shall be entitled to seek other remedies at law, injunctive or other equitable relief and/or specific performance to remedy or prevent any threatened or actual breach of this Agreement in any court of competent jurisdiction without the requirement of a bond.
18 LIMITATION OF LIABILITY
IN NO EVENT WILL MTC BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES INCLUDING BUT NOT LIMITED TO THE LOSS OF PROFITS OR BUSINESS OPPORTUNITY, EVEN IF WE HAD BEEN ADVISED OF SUCH POSSIBILITY.
IN NO EVENT SHALL THE LIABILITY OF MTC ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE DIFFERENCE BETWEEN THE TOTAL NET PRICE OF BLOCKS PURCHASED BY YOU WITH RESPECT TO THE PROJECT WHICH IS THE BASIS FOR THE DISPUTE AND THE FEES PAID TO THE RESPECTIVE PROVIDERS ON SUCH PROJECT. THIS LIMITATION APPLIES TO ANY LIABILITY ARISING FROM ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, 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.
For purposes of this section, any reference to “MTC” shall include MTC’s affiliates, officers, employees, principals, agents and contractors.
You and MTC may assign this Agreement upon written notice to the other. Subject to the foregoing restrictions, this Agreement is binding upon and will inure to the benefit of the successors, heirs and permitted assigns of the Parties.
20 FORCE MAJEURE
MTC shall not be responsible or liable for any delay or failure to fulfill any provision of this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot, insurrection, embargoes, acts of civil or military authorities, fires, floods, explosions, accidents, or any other cause beyond the reasonable control of MTC.
MTC may amend this Agreement at any time, in its sole and absolute discretion; provided any changes in fees and costs and/or services shall be applicable only after the effective date of such change (which shall be not less than thirty (30) days after the change is posted on the Site). Your continued use of the Site after the effective date of any such modification shall be conclusive evidence of your consent to be bound by such modification.
No amendment, modification or waiver of any of the terms of this Agreement will be binding upon MTC except by a written instrument signed by a duly authorized representative of MTC or posted on the Site by MTC.
22 SECTION HEADINGS
Section headings are included for ease of reference only and have no binding effect.
You acknowledge and agree that you had sufficient time and opportunity to have this Agreement reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any party as drafter.
This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling. The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
If any provision of this Agreement is unenforceable under any applicable law or is held invalid, such holding shall not affect any other provision hereof, and the defective provision shall, if applicable law permits, be modified and interpreted in a manner that it is enforceable. Otherwise, the offending term or provision shall be omitted and not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25 VIOLATIONS OF THESE RULES
Failure to abide by the terms of this Agreement may, in the sole discretion of MTC, result in suspension or termination of your account.
Notwithstanding anything to the contrary contained herein, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect.
Specifically, Sections 4, 6-11, 13-24, 26-28 shall survive termination of this Agreement.
Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered in person or sent by registered or certified mail (return receipt requested) or nationally recognized overnight delivery service, postage pre-paid, or delivered via telecopier or facsimile transmission addressed as follows, or to such other address as such Party may notify to the other Parties in writing:
1000 Fifth Street, Suite 200 Miami Beach, Florida 33139
At such address and email as you indicate in the registration of your MTC account.
Notices, demands or requests which MTC or you are required or desire to give the other hereunder shall be deemed to have been properly given for all purposes if (A) hand delivered to the Party's notice address, (B) delivered to a nationally recognized overnight courier such as FedEx, UPS or DHL to its addressee at such Party's notice address, or (C) delivered via telecopier or facsimile transmission to the Party's facsimile number. Each such notice, demand or request shall be deemed to have been received upon the earlier of (i) actual receipt or refusal by the addressee if hand delivered in accordance with clause (A) or (B) above, or (ii) the date and time of transmission if sent during business hours in accordance with clause (C) above. The Parties shall notify the other of any change in address, which notification must be at least two business days in advance of it being effective. Notices may be given on behalf of any Party by such Party's legal counsel. For a notice to be valid and effective, an email copy of such shall notice shall be sent concurrently to the addressee’s email. An email notice alone shall be sufficient upon acknowledgment of receipt by the recipient or the recipient’s reply to such email, direct or indirect.
28 ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding between you and MTC relating to the subject matter hereof and thereof and supersedes any prior or contemporaneous discussions, agreements, representations, warranties and other communications between you and MTC, written or oral, to the extent they relate in any way to the subject matter hereof.