Terms of Use

10. Applicable Law; Disputes (the “Arbitration Agreement”)

a. U.S. Residents/U.S. Establishment or U.S. Claims.

i. MUTUAL ARBITRATION AGREEMENT—PLEASE READ.  It’s in both of our interests to resolve disputes in the quickest and most cost-effective way.  If your country of residence or establishment is the United States, you and the Company mutually agree, subject to the exceptions in Section 10(a)(iii), that any dispute arising out of or relating in any way to these Terms or Company, will be resolved by binding arbitration, rather than in court.  Binding arbitration is a procedure where a dispute is submitted to an arbitrator who makes a binding decision on the dispute.  In choosing binding arbitration, you and the Company are opting for a private dispute resolution procedure where you agree to accept the arbitrator’s decision as final instead of going to court.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would. 

This arbitration agreement applies to:

• any dispute, past, present or future, regardless of whether the dispute, claim, or controversy occurred or accrued before or after the date you agreed to these Terms.  
  
  

• any dispute regarding these Terms, the Company Systems, or Company Materials, your relationship with the Company, or any relationship with any of the Company’s agents, employees, executives, officers, investors, shareholders, affiliates, successors, assigns, subsidiaries, or parent companies (each of which may enforce this Arbitration Agreement as third-party beneficiaries), and termination of that relationship.

The Federal Arbitration Act and federal arbitration law will govern this arbitration provision. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of these Terms. 

ii.  Informal Dispute Resolution.  Good-faith efforts to resolve disputes informally can often result in a prompt, low-cost, and mutually beneficial outcome.  You and the Company therefore agree that, before an arbitration demand is submitted, whoever is bringing the dispute will first attempt to informally resolve the dispute in good faith over a period of 60 days.  During this time, any applicable statute of limitations will be tolled.  As part of these informal negotiations, you and the Company will  have at least one phone call or in-person meeting.  That meeting must be for you only; we cannot combine multiple people bringing claims into a single conference. You and the Company agree to hold a separate conference each time either party intends to commence individual arbitration .  If either party is represented by counsel, that counsel may participate in the informal dispute resolution conference, but the party also must appear at and participate in the conference. The parties must have the conference before commencing individual arbitration, and the arbitration provider must dismiss any arbitration commenced by a party that has not fulfilled this requirement.  

iii. Limitations on How this Arbitration Agreement Applies.  

a. Notwithstanding any other provision of this Arbitration Agreement:  (1) You may assert claims in small claims court on an individual basis if your claims qualify; (2) either of us can apply to a court of competent jurisdiction for emergency, temporary, or preliminary injunctive relief (i) based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, or cyber-attack); or (ii) on the ground that without such relief the arbitration provided in this Arbitration Agreement may be rendered ineffectual; and (3) either party may bring suit in court to enjoin actual or threatened infringement or other misuse of Intellectual Property Rights.

b. Impact on Pending Litigation.  This Arbitration Agreement does not change your standing with respect to any litigation against us brought by you or on your behalf that is pending in court or arbitration as of the date you received this Arbitration Agreement (“pending litigation”).  Therefore:

• If at the time you received this Agreement you were a current or former contributor authorized to use the Services and were not bound by an existing arbitration agreement with us, you are eligible to participate in any pending litigation to which you were a party or putative class, collective or representative action member regardless of whether you opt out of this Arbitration Agreement.

• If, at the time you received this Agreement, you were bound by an existing arbitration agreement with us, that arbitration agreement will continue to apply to any accrued claims and pending litigation, even if you opt out of this Arbitration Agreement; however, if you opt out, the Arbitration Agreement will not apply to new claims (meaning, to any claims that accrue or litigation that is filed after the date you opt out).

• If, at the time you received this Agreement, you were not previously a contributor authorized to use the Services, then this Arbitration Agreement will apply to covered claims and any pending litigation unless you opt out of this Arbitration Agreement as provided below.

iv. Delegation Provision.  Only an arbitrator can resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or part of this Arbitration Agreement is void or voidable.  But there is an exception:  Only a court of competent jurisdiction can resolve any and all disputes arising out of or relating to the Class Action Waiver, Collective Action Waiver, or California Private Attorneys General Act Individual Action Requirement—including any claim that all or part of those provisions are unenforceable, unconscionable, illegal, void, or voidable, or that a breach of any of these provisions has occurred.

v. Class and Collective Action Waivers.  Any and all disputes between you and the Company will be resolved only in individual arbitration.  Except as provided in Section 10(a)(ix), the arbitrator may award relief only on an individual basis and only to the extent necessary to provide relief warranted by the individual claim.  You and the Company mutually agree to bring any claims individually and not on a class or collective action basis.  No arbitrator or arbitration provider shall have authority to hear, arbitrate, or administer any class, collective, coordinated, or consolidated action, or to award relief to anyone but the individual in arbitration.  Accordingly:

a)  There will be no right or authority for any dispute to be brought, heard, or arbitrated as a class action and the arbitrator will have no authority to hear or preside over any such claim (“Class Action Waiver”).  

b)  There will be no right or authority for any dispute to be brought, heard, or arbitrated as a collective or representative action and the arbitrator will have no authority to hear or preside over any such claim (“Collective Action Waiver”).

c)  If a court decides that applicable law precludes enforcement of the Class Action Waiver or Collective Action Waiver as to a particular portion of any claim for relief or remedy (such as declaratory or injunctive relief), then (1) that portion of the claim or remedy must be severed from the arbitration and must be brought in a court of competent jurisdiction, and will be stayed in court pending completion of any individual arbitration; (2) the remaining portions of any claims and remedies (such as individual liability, damages, or restitution) will be resolved through binding arbitration; and (3) the severance of any claims or unenforceable portion(s) of the Class Action Waiver or Collective Action Waiver shall have no impact whatsoever on the enforceability, applicability, or validity of the Arbitration Agreement or the arbitrability of any remaining claims or requested relief asserted by you or the Company, and any portion that is enforceable shall be enforced in arbitration.  

d) Notwithstanding any other provision of this Arbitration Agreement or the applicable arbitration provider’s rules, the Class Action Waiver and Collective Action Waiver do not prevent you or us from participating in a classwide, collective, coordinated, or consolidated settlement of claims, and cannot be construed to preclude the mass arbitration dispute process set forth above. 

vi. California Private Attorneys General Act (“PAGA”) Individual Action Requirement. You and the Company agree to arbitrate PAGA claims on an individual basis only. Therefore, any claim under PAGA to recover unpaid wages or other individual relief must be arbitrated under this arbitration agreement.  The arbitrator has no authority to preside over any PAGA claim by one person on behalf of any other person or joined by or consolidated with another person’s PAGA claim.  This PAGA Individual Action Requirement clause must be severed from this arbitration agreement if there is a final judicial determination that it is invalid, unenforceable, unconscionable, void or voidable.  In that case, the PAGA action must be litigated in a civil court of competent jurisdiction—not in arbitration—but the portion of the PAGA Individual Action Requirement that is enforceable will be enforced in arbitration.  

vii. Process.  The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Arbitration Rules and Mass Arbitration Rules.  The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.  

To initiate arbitration following the conclusion of the informal dispute resolution process required by Section 10(a)(ii), the party bringing the claim must file the written demand for arbitration with the applicable arbitration provider and serve a copy of the demand for arbitration on the opposing party or parties as specified in the arbitration provider’s rules.  By filing the arbitration demand with the applicable arbitration provider, the party bringing the claim in arbitration certifies that the demand complies with Rule 11 of the Federal Rules of Civil Procedure and any applicable state law equivalent.  All claims in arbitration are subject to the same statutes of limitation that would apply in court.

To the extent you and the Company have related arbitrable and non-arbitrable disputes, the arbitrable disputes shall proceed first in arbitration and the non-arbitrable disputes shall be stayed, and any applicable statutes of limitations tolled, pending completion of the arbitration.

If, for any reason, AAA will not administer the arbitration and you and the Company cannot mutually agree on a neutral arbitration provider, either one of us may invoke 9 U.S.C. § 5 to request that a court of competent jurisdiction appoint an arbitration provider with operations in California.  Any arbitration provider appointed by a court under 9 U.S.C. § 5 shall conduct arbitration in accordance with this Arbitration Agreement and solely on an individualized basis.  Once an arbitration provider is appointed under 9 U.S.C. § 5, or you and the Company mutually agree upon a neutral arbitration provider, the ensuing arbitration shall commence according to the rules of the designated arbitration provider.  

viii. The Arbitration Hearing and Award.  Within 30 days of the close of the arbitration hearing, any party will have the right to prepare, serve on the other party and file with the arbitrator a brief.  The arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the arbitrator.  The arbitrator will apply applicable controlling law and issue a decision or award in writing, stating the essential findings of fact and conclusions of law.

Under no circumstances is the arbitrator bound by decisions reached in separate arbitrations.  The arbitrator’s decision, including any decision by a Special Master (as applicable), shall be binding only upon the parties to the arbitration that are the subject of the decision.

The arbitrator shall award reasonable costs incurred in the arbitration to the prevailing party in accordance with the law(s) that applies to the case.  The arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law equivalent.  A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration.  The arbitrator’s findings of fact and conclusions of law shall not be binding or have any preclusive effect on any other arbitration, except as specified in and limited by Section 10(a)(ix).

ix. Mass Arbitration Dispute Process.  If 20 or more arbitration demands of a substantially similar nature are initiated against you or the Company within a 180-day period by the same law firm or collection of law firms that represents the other party (“mass arbitration demands”), the following procedure shall apply.  At the request of either party, an arbitrator shall be selected pursuant to the applicable arbitrator provider’s rules to act as a special master to resolve threshold disputes regarding the propriety of some or all the mass arbitration demands, including but not limited to any dispute falling within the arbitration provider’s rules providing for the resolution of threshold disputes in a mass arbitration.  These threshold disputes may include, but are not limited to:

a. any dispute regarding filing fees owed with respect to the mass arbitration demands, including whether claimants have submitted valid fee waivers;

b. any dispute regarding whether the applicable arbitration provider has complied with the Arbitration Agreement with respect to processing and administering the mass arbitration demands;

c. any dispute regarding whether the mass arbitration demands meet the requirements set forth above;

d. any dispute regarding whether the demands have complied with all conditions precedent to commencing arbitration, including compliance with the informal dispute resolution process described in Section 10(a)(ii) above;

e. any dispute regarding whether claimants are barred from proceeding with their claims based on a prior settlement agreement or expiration of the statute of limitations;

f. any dispute relating to representation of the same claimant by multiple law firms;

g. any dispute regarding whether the mass arbitration demands were filed with the correct arbitration provider;

h. any dispute regarding whether claimants have ever been contributors authorized to use the Services;

i. any dispute regarding whether the mass arbitration demands violate Rule 11 of the Federal Rules of Civil Procedure and/or any applicable state law equivalent; 

j. any dispute or issue regarding the equitable and efficient initial case management of the mass arbitration demands, including, but not limited to, the timing and/or sequence of payment of any remaining filing or administrative fees or costs related to the mass arbitration demands; and

k. any other dispute falling within the arbitration provider’s rules providing for the resolution of threshold disputes in a mass arbitration. 

Except as provided below, during the 15-day period following the filing and service of any arbitration demand that qualifies as part of the same group of mass arbitration demands—or upon the request of a party to appoint a special master—the arbitration provider shall refrain from further processing of any demands that are part of the same group of mass arbitration demands, and no further payment (i.e., other than amounts required to be paid by the party initiating arbitration at the time the arbitration demand is filed) for filing fees, administrative fees or costs, or arbitrator fees shall be deemed due with respect to those demands.  A party’s decision not to invoke this procedure in response to a particular arbitration demand shall not constitute a waiver of any defense to any arbitration demand.  Likewise, a party’s decision not to invoke this procedure in response to a particular demand will not preclude the same party from later invoking this procedure in response to any other arbitration demand, including one that qualifies as part of the same group of mass arbitration demands as an earlier-filed demand.  But the Company agrees to pay the applicable arbitration provider’s and special master’s fees and costs related to the proceedings before the special master.

A special master appointed pursuant to this procedure may award any party any appropriate remedy to which that party is entitled under applicable law with respect to the issues presented to and decided by the special master, but shall have no authority to consolidate cases or decide issues outside of those specified above.  After proceedings before the special master have concluded, to the extent any of the mass arbitration demands are permitted to proceed, all such demands shall proceed on an individual basis only, and the arbitration provider must administer them individually in accordance with the provider’s rules (including any rules relating to mass arbitrations) and this Arbitration Agreement.  However, you and the Company mutually agree that, to make arbitration more cost-effective and efficient, the applicable arbitration provider may assign up to 50 claims within a mass arbitration to the same arbitrator.  Multiple claims assigned to the same arbitrator shall each be resolved on an individual basis by the arbitrator, and the arbitrator’s decision in each proceeding shall be binding only upon the parties to each individual arbitration. 

b. Jury Trial Waiver. The parties waive the right to a trial by jury as to all arbitrable disputes.

c. Arbitration Fees and Costs.

i. Except in the case of offers of judgment (such as under Federal Rule of Civil Procedure 68 or any applicable state law equivalents, which apply to arbitrations under this Arbitration Agreement as set forth in Section 10(c)(iv) below), each party will pay the fees for its, his, or her own attorneys and any costs that are common to both court and arbitration proceedings (such as court reporter costs and transcript fees), subject to any remedies to which that party may later be entitled under applicable law.

ii. Each party shall follow the applicable arbitration provider’s rules about initial arbitration filing fees, except that your portion of any initial arbitration filing fee shall not exceed the amount you would be required to pay to initiate a lawsuit in federal court in the jurisdiction where the arbitration will be conducted.  To the extent a fee waiver is sought, it must include all information and be submitted in the appropriate form required by applicable law.  Except as specified in the mass arbitration dispute procedure set forth in Section 10(a)(ix), after (and only after) you have paid your portion of any initial arbitration filing fee, we will make up the difference, if any, between the fee you have paid and the amount required by the applicable arbitration provider’s rules.

iii. In all cases where required by applicable law not preempted by the FAA, we will pay the arbitrator’s fees, as well as all fees and costs uniquely associated with arbitration (such as room rental).  Otherwise, such fee(s) will be apportioned between the parties in accordance with said applicable law and this Arbitration Agreement, and any disputes in that regard will be resolved by the arbitrator (which includes the special master, as applicable).  You agree to not oppose any negotiations between the applicable arbitration provider and the Company relating only to our fees.

iv. At least 10 days before the date set for the arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms.  If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitrator, who shall enter judgment accordingly.  If the offer is not accepted prior to the arbitration hearing or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the arbitration.  If an offer made by the respondent is not accepted by the claimant, and the claimant fails to obtain a more favorable award, the claimant shall not recover its post-offer costs and shall pay the respondent’s costs from the time of the offer.

d. Rest of the World. To the extent permitted by applicable law, any judicial proceedings relating to Company Systems or Company Materials (other than small claims actions) that are excluded from arbitration under Sections 10(a) through 10(c) will be governed by the laws of the State of California without regard to its conflict of law provisions and subject to the exclusive venue and jurisdiction of the state or federal courts located in San Francisco County, California.  Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of these Terms.

e. Your Right to Opt Out of This Arbitration Agreement.  Agreeing to this Arbitration Agreement is not a mandatory condition of your contractual relationship with the Company.  If you do not want to be subject to this Arbitration Agreement, you may opt out.  To do so, within 30 days of the date that you electronically accept the Terms of Use, you must personally email us a legal notice as provided under Section 14(f) from the email address associated with your account on the Services, stating your intent to opt out of this Arbitration Agreement and your full name and the city in which you reside. 

An email sent by your agent or representative (including your counsel) is not effective.  Your email may opt out yourself only, and any email that purports to opt out anyone other than yourself shall be void as to any others.  You will not be subject to retaliation if you exercise your right to opt out of this Arbitration Agreement. 

Neither your acceptance of these Terms nor your decision to opt out of this Arbitration Agreement will affect any obligation you have to arbitrate disputes not specified in this Arbitration Agreement pursuant to any other agreement you have with the Company or any of its subsidiaries or affiliate entities.  Opting out of this Arbitration Agreement does not revoke or alter your prior consent to any earlier agreements to arbitrate disputes between you and the Company, which will remain in effect and enforceable as to any dispute between you and the Company, as set forth in Section 10(a)(iii)(b).  Likewise, your acceptance of or decision to opt out of any other arbitration agreement you have with the Company or any of its subsidiaries or affiliate entities shall not affect any obligation you have to arbitrate claims pursuant to this Arbitration Agreement.

f. Changes. Notwithstanding the provision of Section 13 (Modifications to these Terms), if the Company changes this Section 10 after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change to this Section 10 by emailing us a legal notice as provided under Section 14(f) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of the Company’s email to you notifying you of such change.  Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any dispute between you and the Company (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any dispute between you and the Company.

g. Severability. Except as provided in Section 10(a)(v) (Class and Collective Action Waivers), and 10(a)(vi) (PAGA Individual Action Requirement), in the event that any portion of this Section 10 is deemed illegal or unenforceable, such provision will be severed and the remainder of Section 10 will be given full force and effect.  

h. Survival. This Section 10 will survive any expiration or termination of these Terms or your relationship with the Company, and will continue to apply even if you stop using Company Systems or deactivate your account. 

11. Text Messaging and Telephone Calls. 

You agree that the Company may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with a Company account, including for marketing purposes. You also understand that you may opt out of receiving text messages from the Company at any time, either by texting the word “STOP” or other instruction to the Company text you receive using the mobile device that is receiving the messages, or by contacting us as provided in Section 12 of the Privacy Policy.

12. Termination; Access Restriction. 

These Terms are effective until terminated pursuant to this Section 12. You may deactivate your account and terminate these Terms at any time. The Company may terminate these Terms, deactivate or suspend your account and access to the Company Systems, or remove any Task listings at any time, immediately without prior notice for any reason. Upon any account termination or suspension, or the termination of these Terms, your right to use the Company Systems will cease, and you will not be able to retrieve any information related to your account. The Company will issue a final payment for Tasks already completed. Sections 2(c), 3(c), 3(d)(iv), and 4-14 will survive any expiration or termination of these Terms.

13. Modifications to the Terms. 

The Company may modify these Terms periodically. If we make a change to the Terms, we will make the most current version available at the Terms of Use link. If we make a material change to the Terms, we will notify you prior to the update’s effective date. If you disagree with the revised Terms, you may terminate these Terms with immediate effect by deactivating your account. Continued use of the Company Systems will constitute your acceptance of the modified terms.

14. General Provisions.

a. Entire Agreement. These Terms are the entire agreement between you and the Company regarding the subject matter of these Terms, except where the Company expressly states that separate terms (and not these) apply. These Terms supersede all prior or contemporaneous representations, understandings, agreements, or communications between you and the Company whether written or verbal, regarding the subject matter of these Terms. The Company will not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of these Terms, including when submitted by you in any order, invoice, bill, receipt, acceptance, confirmation, correspondence or other document.

b. Assignment. You may not assign or transfer any rights, obligations or privileges that you have under these Terms without the Company’s prior written consent. The Company may assign these Terms, in whole or in part, at any time without notice. Subject to the foregoing, these Terms will be binding on each party’s successors and permitted assigns. Any assignment or transfer in violation of this Section will be deemed null and void. Your right to terminate these Terms at any time remains unaffected.

c. Severability; Interpreting the Terms. Except as expressly stated in Section 10, if any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms will continue in effect. The word “including” will be interpreted without limitation when used in these Terms.

d. No Waiver. The failure by the Company to enforce any provision of these Terms will not constitute a present or future waiver of that provision nor limit the Company’s right to enforce that provision at a later time. All waivers by the Company must be in writing and signed by the Company to be effective. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.

e. No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.