PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND HUMMINGBIIRD HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 28 BELOW). THESE PROVISIONS WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST HUMMINGBIIRD TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.
MATERIAL TERMS AND NOTICES
The sole purpose of the Hummingbiird Platform is to connect you to other Users (as defined in Section 2) of the Hummingbiird Platform. You are neither an employee, agent, representative, independent contractor, nor subcontractor, of Hummingbiird.
The use of the Hummingbiird Platform may be subject to separate third-party terms of service and fees, including, without limitation, such terms of service and fees imposed by your mobile network operator (the “Carrier”), including fees charged for data usage and overage, which are your sole responsibility;
The Hummingbiird Platform is provided “as is” without warranties of any kind, and Hummingbiird’s liability to you is limited regarding the performance of Services (as defined in Section 2);
Hummingbiird provides Users the Hummingbiird Guarantee (as defined in Section 6), but no other guarantees;
Access to certain features of the Hummingbiird Platform may require access to information about the location of your device, such as GPS coordinates;
We may, without further notice or warning and in our discretion, access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users that occur through the Hummingbiird Platform for our business purposes, including to provide and improve customer service and the Hummingbiird Platform, fraud prevention, and to identify violations of this Agreement;
You agree not to circumvent the Hummingbiird Platform by scheduling, paying, and/or receiving payment for, Services outside of the Hummingbiird Platform; and,
You agree to and acknowledge the “Notice Regarding Apple” in Section 36 below.
Hummingbiird Platform Connects Users
Customers must determine for themselves whether a Provider is qualified to perform the requested Service, including whether the Provider possesses any necessary licenses. Please note that in certain markets a Provider may be required to have a license to perform certain Services. Customers should consult their state and local requirements to determine whether certain Services are required to be performed by a licensed professional.
ANY DECISION BY USERS TO OFFER OR ACCEPT SERVICES THROUGH THE HUMMINGBIIRD PLATFORM IS A DECISION MADE IN SUCH USER’S SOLE DISCRETION. EACH SERVICE PROVIDED BY A PROVIDER TO ITS CUSTOMER SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN THAT PROVIDER AND CUSTOMER. PROVIDERS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR SUBCONTRACTORS OF HUMMINGBIIRD. HUMMINGBIIRD MAKES NO REPRESENTATIONS AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OF PROVIDERS, NOR DOES IT HAVE CONTROL OVER OR MAKE REPRESENTATIONS REGARDING THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER RELATING TO ANY SERVICES DELIVERED BY PROVIDERS. HUMMINGBIIRD HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICES PROVIDED TO CUSTOMERS BY PROVIDERS, AND DOES NOT PROVIDE A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE.
Provider Background and Identity Check Process
Hummingbiird checks the backgrounds of each Provider using a third-party background check service that includes a sex offenders registry check, county, state, federal and national criminal records check, and domestic and international terrorist watchlist check. Hummingbiird also requires each Provider to submit to Hummingbiird a government-issued photo ID and a profile picture. Providers hereby give consent to Hummingbiird to conduct background checks as often as Hummingbiird deems necessary, and in compliance with applicable law, including without limitation the Fair Credit Reporting Act. Although Hummingbiird performs background and identity checks on each Provider, Hummingbiird cannot confirm that each Provider is who they claim to be, and therefore, Hummingbiird cannot and does not make any representations regarding, or assume any responsibility or liability for, the accuracy or reliability of the identity or background check information or any other information provided through the Service.
Job Fees and Services
Job Fee. Customers shall be charged pursuant to the rates quoted via the Hummingbiird Platform at the time the Service is scheduled, which shall be based either on (i) the stated parameters of the Services and the location where such Services are to be performed; or (ii) a counter-bid price proposed directly from a Provider that is accepted by Customer (the “Job Fee”). Hummingbiird has the authority and reserves the right to determine and modify pricing by posting revised applicable Job Fees to your market through the App or by applying advertised sales or promotional discounts to the posted Job Fees, which will be disclosed to you prior to your submission as a Customer or acceptance as a Provider of a Service request. You are responsible for reviewing the applicable Job Fee prior to the submission or acceptance of a Service. As a Customer, you shall be responsible for all incurred Job Fees charged under your User account regardless of your awareness of such Job Fees or the amounts thereof. Similarly, as a Provider, you agree that the Job Fees for the Services that you perform shall be the amount disclosed to you prior to your acceptance of a Service regardless of your awareness of such Job Fees or the amount thereof.
Available Services. Only the following Services are available through the Hummingbiird Platform, all of which must comply with all applicable laws, rules, and regulations:
Provider will provide all necessary supplies.
Both Customer and Provider should take pictures of the premises both before and after Services are provided.
Provider will provide all necessary supplies.
The writing purchased from a Provider is only intended to serve as a template that will be used by the Customer to create his/her own work product, and will not be used by the Customer for any other purpose.
Providers shall not plagiarize any work of any individual or entity, or violate any individual or entity’s copyrights, patents, or trademarks.
Telephone screen repair;
Providers provide this Service on a work-for-hire basis, and all work product created is the sole property of Customer.
Providers shall not plagiarize any work of any individual or entity, or violate any individual or entity’s copyrights, patents, or trademarks.
Pet care; and
Customers may not seek Services for, nor may Providers provide any Services to, any dogs of an aggressive breed (e.g. pitbulls).
Before Customer may purchase any Services for any pet through the Hummingbiird Platform, Customer must submit written proof through the Hummingbiird Platform that the pet has received all applicable shots and immunizations. The Provider will then review this documentation to decide whether to provide any Services to that pet.
Customers must supply all food, leashes, and any other items needed by their pet.
Provider will provide all necessary equipment.
Providers provide this Service on a work-for-hire basis, and all work product created is the sole property of Customer.
No User may take, appear in, or participate in, directly or indirectly, any nude or pornographic photographs or videos.
Users of the Hummingbiird Platform contract for the Services directly with other Users. Except as set forth in Section 32 below, Hummingbiird is not a party to any contracts for the Services. The Hummingbiird Platform facilitates these contracts by supplying a medium through which Customers can connect with Providers, schedule the Services, and make payments for the Services . Notwithstanding the foregoing, neither Customers nor Providers may circumvent the Hummingbiird Platform by using the Hummingbiird Platform to connect with one another and then have the Services provided and paid for outside of the Hummingbiird Platform. Violation of this provision shall result in the immediate and permanent suspension of your account on the Hummingbiird Platform, with all pending payments for any Services rendered to any Customer forfeited to Hummingbiird as a liquidated damage, and not a penalty.
Payment Processing Service. To facilitate payment for the Services, each User is required to register a credit card and each Provider is required to register using the Provider’s bank account details. You authorize us and the payment processing service retained by us (currently, Stripe) to facilitate the transaction of the Services and the payment remittance of all applicable charges and fees between you and other Users and between you and us. All payments transacted through Stripe shall be subject to the Stripe Connected Account Agreement, located at https://stripe.com/connect/account-terms,which includes the Stripe Terms of Service, located at https://stripe.com/us/terms (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Hummingbiird facilitating payment processing services through Stripe, you agree to provide Hummingbiird accurate and complete information about you and, if applicable, your business, and you authorize Hummingbiird to share it and transaction information related to your use of the payment processing services provided by Stripe.
Customer Payments. As a Customer, we will charge your credit card according to the amount of all Services you scheduled through the Hummingbiird Platform, which amount will include: (i) the Job Fee applicable to the Services that are to be provided to you by your Provider; and (ii) any out of pocket expenses (e.g., materials, delivery fees, dump fees) agreed to by and between you and your Provider through the Hummingbiird Platform. You hereby authorize us to charge the credit card on file in your account for such amounts at the time that you order the Services. Any payments paid outside of the Hummingbiird Platform are not subject to the Hummingbiird Guarantee and is a violation of the terms of this Agreement.
Except for the Hummingbiird Guarantee, no refunds or credits will be provided once the Customer’s credit card has been charged. While we will use commercially reasonable efforts to protect all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to release and hold us harmless for any damages that may result therefrom. The Job Fee quoted is exclusive of taxes. Hummingbiird is not responsible or liable for any taxes incurred in connection with the Service, excluding taxes on Hummingbiird’s income. Customers will be liable for all transaction taxes on the Service(s) provided (other than taxes based on Hummingbiird’s income).
Provider Payments. Hummingbiird will process all payments made by the Customer due to you through its third-party payments processor, less (a) the Use Fee (as defined below); and (b) any monies to which Hummingbiird is entitled pursuant to this Agreement, under the following conditions: (i) the Customer has notified Hummingbiird that the Services have been performed in accordance with the Specifications; (ii) the twenty-four complaint period set forth in Section 6 hereof has elapsed without any Complaint having been filed by the Customer; or (iii) Hummingbiird has made the determination, pursuant to the procedure set forth in Section 6 hereof, that the Services were performed in accordance with the Specifications. Should Hummingbiird make the determination, pursuant to the procedure set forth in Section 6 hereof, that it is going to pay a different Provider to perform the Services in accordance with the Specifications and/or refund the payment to the Customer, then no payment will be released to the Provider. You acknowledge and agree that such amounts shall not include any interest and will also be net of any amounts that we are required to withhold by law. You expressly authorize Hummingbiird to pre-set the prices on your behalf for all Job Fees that apply to the provision of Services that you provide through the Hummingbiird Platform.
Notwithstanding the above, Providers may request an adjustment of their applicable Job Fees upon written notice to the attention of Hummingbiird’s General Counsel. Hummingbiird reserves the right to withhold all or a portion of Job Fees if it believes that you have attempted to defraud or abuse Hummingbiird or Hummingbiird’s payment systems.
i.Use Fee. As a Provider, in exchange for permitting you to offer your services through the Hummingbiird Platform, you agree to pay Hummingbiird (and permit Hummingbiird to retain from the above-referenced payment by the Customer) a fee of up to fifteen percent (15%) of the Job Fee for each transaction in which you provide Services (the “Use Fee”). The amount of the applicable Use Fee will be communicated to you in the online Provider orientation and/or on the Website. Hummingbiird reserves the right to change the Use Fee at any time in Hummingbiird’s sole discretion, and Hummingbiird will provide you with notice in the event of such change. Continued use of the Hummingbiird Platform after any such change in the Use Fee calculation shall constitute your consent to such change.
Promotions. Hummingbiird, at its sole discretion, may make available promotions with different features to any of our Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Hummingbiird. You are not required to participate in promotions. BY PARTICIPATING IN ANY PROMOTIONAL ACTIVITY VIA THE HUMMINGBIIRD PLATFORM, YOU ARE AGREEING TO ANY ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO THE PROMOTIONAL ACTIVITY, including the following:
THE RELEASED PARTIES ARE NOT RESPONSIBLE FOR: (a) ANY INCORRECT OR INACCURATE INFORMATION, WHETHER CAUSED BY ENTRANTS, PRINTING ERRORS OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR USED IN THE PROMOTION; (b) TECHNICAL FAILURES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, MALFUNCTIONS, INTERRUPTIONS, OR DISCONNECTIONS IN PHONE LINES OR NETWORK HARDWARE OR SOFTWARE; (c) UNAUTHORIZED HUMAN INTERVENTION IN ANY PART OF THE ENTRY PROCESS OR THE PROMOTIONAL ACTIVITY; (d) TECHNICAL OR HUMAN ERROR THAT MAY OCCUR IN THE ADMINISTRATION OF THE PROMOTIONAL ACTIVITY OR THE PROCESSING OF ENTRIES; OR (e) ANY INJURY OR DAMAGE TO PERSONS OR PROPERTY THAT MAY BE CAUSED, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, FROM YOUR (OR ANY OTHER ENTRANT’S) PARTICIPATION IN THE PROMOTIONAL ACTIVITY.
Hummingbiird Guarantee to Customers
If you have ordered and paid for a Service but you believe the Service was not performed in accordance with the specifications agreed to by the Customer and Provider (the “Specifications”), you must first attempt to informally resolve the dispute with the Provider. If that attempt is not successful, then you must report the issue within twenty-four (24) hours of the Service appointment to our Support Center at support@Hummingbiird.com and respond to all follow up questions requested of you from the Support Center, at which time you may be eligible for the Hummingbiird Guarantee. The “Hummingbiird Guarantee ” is as follows: if we determine that a Service does not meet the Specifications we will, in our sole discretion, either (1) refund the payment you actually made for such Service; (2) provide you with a credit on the Hummingbiird Platform in the amount that you paid for the Service; or (3) have the applicable Service re-performed at our expense. If the Service is re-performed but we determine the re-performance still does not meet the Specifications, we will either refund the payment actually made for such Service or provide you with the above-referenced credit, as we determine in our sole discretion. However, if we determine that the Services were performed in accordance with the Specifications, then we will process the payment to the Provider, at which time your only recourse would be to bring a private action against the Provider. The amount of the Hummingbiird Guarantee is limited to any payment you made for the Service. The Hummingbiird Guarantee does not apply to any other cost, liability, damage (consequential, special, or punitive), injury, or claim arising from or in connection with the Services. To be clear, Services that are not scheduled, confirmed and paid for through the Hummingbiird Platform will not be covered by the Hummingbiird Guarantee and is a violation of the terms of this Agreement, which may result in the suspension or deactivation of the User’s account(s). THIS SECTION 6 STATES HUMMINGBIIRD’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES.
Hummingbiird reserves the right in its sole discretion to eliminate the Hummingbiird Guarantee altogether or to modify its terms at any time, effective with or without notice and without any liability to Hummingbiird, although Hummingbiird will endeavor to post notification of any material changes.
Hummingbiird’s cancellation policy for specific Services is as follows:
Cancellation by Customer. As a Customer, you may cancel your scheduled Service appointments through the App at any time, subject to the following:
Services Booked 24 Hours in Advance
If you cancel more than 24 hours before a scheduled Service appointment, there is no cancellation fee.
If you cancel between 2-24 hours before a scheduled Service appointment, you may be charged a $10.00 cancellation fee.
If you cancel less than 2 hours before a Service appointment, you may be charged half the amount of the Service.
Services Booked Less Than 24 Hours in Advance
For Services that were booked between 2-24 hours before the scheduled Service appointment, you may be charged a $10 cancellation fee if you cancel less than 2 hours before a Service appointment.
For Services that were booked less than 2 hours before the scheduled Service appointment, including Services scheduled as “Now” appointments, you will only be subject to a $10 cancellation fee if you fail to cancel such appointment within 5 minutes after you booked your job.
Cancellation by Provider. As a Provider, although you may cancel your scheduled Service appointments through the App if necessary, please understand that your cancellations are serious matters and may result in the suspension or deactivation of your Provider Account. If you are more than 15 minutes late for a scheduled appointment (note: the scheduled time for a “Now” appointment is 1 hour from the time you are selected by your Customer) or fail to complete a scheduled Service, you shall be deemed to have cancelled such appointment. When you cancel a scheduled Service appointment, the Hummingbiird Platform generally notifies your Customer to resubmit the request for Service. Hummingbiird cannot guarantee that a cancelled Service appointment will be selected by another Provider and rescheduled or that the Service request will be completed. Thus, your cancellation or failure to timely show up to perform a scheduled appointment could negatively impact your Customer and the Hummingbiird Platform. As a result, such conduct may adversely impact your rating among Customers. PLEASE BE ADVISED THAT YOUR CANCELLATION OF (A) ANY “NOW” APPOINTMENTS, (B) ANY SCHEDULED APPOINTMENTS ON LESS THAN 24 HOURS’ NOTICE, OR (C) TWO OR MORE SCHEDULED APPOINTMENTS WITHIN A 30-DAY PERIOD IS A VIOLATION OF THE TERMS OF THIS AGREEMENT, WHICH MAY RESULT IN THE SUSPENSION OR DEACTIVATION OF YOUR PROVIDER ACCOUNT.
Provider Access Fee
As a Provider, you are required to pay a monthly access fee during any calendar month in which you complete a Service. The access fee shall be $2.99 per month or any portion thereof (the “Access Fee”). You instruct and authorize Hummingbiird to deduct the Access Fee from the Job Fee of the first job(s) you complete in a calendar month. You acknowledge that Hummingbiird reserves the right, at any time, to modify its Access Fees and billing methods.
To help maintain the quality of the Hummingbiird Platform, Users (both Providers and Customers) will have the opportunity to rate each other after the completion of Services.If you rate your Provider or Customer with less than 3.7 stars, such User will be excluded from your future Service requests. Customers will see Provider ratings before selecting a Provider for a job so each rating a Customer gives can have an impact on that Provider’s future on the Hummingbiird Platform. In addition, Customers with a low star rating may not have their requests accepted.
We may, without further notice or warning and in our discretion, monitor or record telephone conversations that we have with you or anyone acting on your behalf for quality control and training purposes or to protect our rights. We may, without further notice or warning, and in our discretion, access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users that occur through the Hummingbiird Platform for our business purposes, including to provide and improve customer service and the Hummingbiird Platform, fraud prevention, and to identify violations of this Agreement.
To schedule and accept Services, you must possess an iOS or Android smartphone capable of accessing the Hummingbiird Platform (the “Mobile Device”). As a Provider, you hereby acknowledge and consent to Hummingbiird’s collection of the latitude and longitude location (“Location Coordinates”) of your Mobile Device so that we can provide our services to you and your Customers. For example, we may collect Location Coordinates when you select “Start Navigation to Site” or equivalent on the App for the purpose of providing support in case you and your Customer cannot find each other and ending upon your notification to your Customer and Hummingbiird that you arrived at the Service location by selecting “I’m Here!” or the equivalent on the App (the “Tracking Period”). In addition, while in Provider mode, Hummingbiird collects the Location Coordinates of the Mobile Device on which the Hummingbiird Platform is installed for other purposes, including for protecting the safety of Customers and Providers, and for legal purposes (such as to enforce our agreements). Hummingbiird does not collect or use Location Coordinates data for the purpose of controlling or monitoring the manner and means by which you provide the Services contemplated by this Agreement, or the frequency with which you use the Hummingbiird Platform to book Services. By executing this Agreement, you agree to the use and disclosure of Location Coordinates information as described above.
Accessing the Hummingbiird Platform and Account Security
We reserve the right to withdraw or amend the Hummingbiird Platform, and any service we provide on the Hummingbiird Platform, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Hummingbiird Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Hummingbiird Platform, or the entire Hummingbiird Platform, to Users for any reason or no reason.
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Hummingbiird Platform or portions of it using your user name, password or other security information, including Third Party Site Password. You agree to notify us immediately of any unauthorized access to or use of your user name or password for the Hummingbiird Platform or any other breach of security. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.
THE HUMMINGBIIRD PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. ANY DISPUTE YOU HAVE WITH ANY CARRIER, PROVIDER, OR THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE HUMMINGBIIRD (AND OUR AFFILIATES, PARENT ENTITIES, SUBSIDIARY ENTITIES, SHAREHOLDERS, OFFICERS, DIRECTORS PARTNERS, INSURERS, EMPLOYEES, TRUSTEES, UNITHOLDERS, INSUREDS, BENEFICIARIES, PREDECESSORS, CONTRACTORS, SERVICE PROVIDERS, SUPPLIERS, DISTRIBUTORS, AGENCIES, LICENSEES, PROFESSIONALS, PRINCIPALS, AGENTS, ATTORNEYS, MEMBERS, INVESTORS, REPRESENTATIVES, HEIRS, PERSONAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, GUARDIANS AD LITEM, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “HUMMINGBIIRD PARTIES”)) FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, CONSEQUENTIAL, SPECIAL, GENERAL, OR PUNITIVE) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATED TO SUCH DISPUTES OR THE HUMMINGBIIRD PLATFORM.
Limited License; Intellectual Property Rights
You may not copy, modify, alter, reproduce, or distribute the Hummingbiird Platform or any portion thereof. You may not directly or indirectly rent, lease, lend, sell, redistribute, or sublicense the Hummingbiird Platform. You must not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of or from the Hummingbiird Platform, any updates, or any part thereof, nor attempt to disable or circumvent any security or other technological measure designed to protect the Hummingbiird Platform or any content available through the Hummingbiird Platform.
The Hummingbiird Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Hummingbiird, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
Except as permitted herein, you must not access or use for any commercial purposes any part of the Hummingbiird Platform or any services or materials available through the Hummingbiird Platform.
You may use the Hummingbiird Platform only for lawful purposes and in accordance with this Agreement. You agree not to use theHummingbiird Platform:
In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
To impersonate or attempt to impersonate Hummingbiird, a Hummingbiird employee, another User or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
To engage in any other conduct that, as determined by us in our sole discretion, may restrict or inhibit anyone’s use or enjoyment of the Hummingbiird Platform, or may harm Hummingbiird or Users of the Hummingbiird Platform or expose them to liability.
Additionally, you agree not to:
Use the Hummingbiird Platform in any manner that could disable, overburden, damage, or impair the Hummingbiird Platform or any portion thereof, or interfere with any other party’s use of the Hummingbiird Platform or any portion thereof, including their ability to engage in real time activities through the Hummingbiird Platform.
Use any robot, spider or other automatic device, process or means to access the Hummingbiird Platform or any portion thereof for any purpose, including monitoring or copying any of the material on the Hummingbiird Platform or any portion thereof.
Use any manual process to monitor or copy any of the material on the Hummingbiird Platform or any portion thereof without our prior written consent.
Use any device, software or routine that interferes with the proper working of the Hummingbiird Platform or any portion thereof.
Introduce any viruses, trojan horses, worms, logic bombs or other material to the Hummingbiird Platform or any portion thereof which is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Hummingbiird Platform or any portion thereof, the server on which the Hummingbiird Platform or any portion thereof is stored, or any server, computer or database connected to the Hummingbiird Platform or any portion thereof.
Attack the Hummingbiird Platform or any portion thereof via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Hummingbiird Platform or any portion thereof.
Digital Millennium Copyright Act
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Hummingbiird Platform, you may contact our Designated Agent at Hummingbiird, Inc., Attn: Copyright Compliance Team, 307 Southgate Court, Franklin, TN 37027 or copyright@Hummingbiird.com.
Any notice alleging that materials hosted by or distributed through the Hummingbiird Platform infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Hummingbiird Platform;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of those materials on the Hummingbiird Platform is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. Hummingbiird will promptly terminate without notice the accounts of Users that are determined by Hummingbiird to be “Repeat Infringers” to the fullest extent permitted under applicable law. A Repeat Infringer is a User who has been notified of infringing activity or has had User Contributions (as defined in Section 17 below) removed from the Hummingbiird Platform at least twice.
The Hummingbiird Platform may contain profiles and other interactive features (collectively, “Interactive Services”) that allow Users to post, submit, publish, display or transmit to other Users (collectively, “post”) content, photographs, images, or other related materials, including User-supplied profile pictures and job/service-related photos, on or through the Hummingbiird Platform (collectively, “User Contributions,”).
You represent and warrant that:
You own or control all rights in and to the User Contributions and have the right to grant the licenses granted above to us, our licensees, successors and assigns, and other Users.
You understand and acknowledge that you, and not Hummingbiird, are fully responsible for any User Contributions you submit or contribute, including their legality, reliability, accuracy and appropriateness, and you agree to indemnify the Hummingbiird Parties for any damages of any nature related thereto or flowing therefrom.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other User of the Hummingbiird Platform.
In exchange for the right to use the Hummingbiird Platform, Users who post their User Contributions hereby irrevocably grant to Hummingbiird the following rights in connection with the display, distribution, transmission, or broadcasting on any media, including the Internet, of their User Contributions in connection with the Hummingbiird Platform:
the right to use User Contributions in the advertising, marketing, and/or publicizing of the Hummingbiird Platform to perform and improve upon the Hummingbiird Platform; or
the right to exercise all copyright, publicity rights, and any other rights therein.
Such right applies in any media now known or not currently known, and such right is hereby deemed to be perpetual, non-exclusive, unrestricted, royalty-free, worldwide, irrevocable, transferable, and sub-licensable (through multiple tiers). User hereby releases Hummingbiird from, and shall not bring at any point in time now or in the future, any claim or proceeding, whether now known or unknown, based upon the use, transfer, or licensing, of your User Contributions, including but not limited to claims for defamation, or invasion of right to privacy, publicity or personality.
Monitoring and Enforcement
We have the right to:
Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Hummingbiird Platform.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Hummingbiird Platform. YOU WAIVE AND HOLD HARMLESS THE HUMMINGBIIRD PARTIES FROM ANY CLAIMS RESULTING (DIRECTLY OR INDIRECTLY) FROM ANY ACTION TAKEN BY THE HUMMINGBIIRD PARTIES IN PROVIDING THE ABOVE-REFERENCED COOPERATION OR IN COMPLYING WITH THE ABOVE-REFERENCED COURT ORDERS.
Insurance. Hummingbiird strongly encourages all Providers to maintain in full force and effect adequate workers’ compensation (or, if permitted by law, occupational accident insurance), unemployment, liability, and other forms of insurance with policy limits sufficient to protect and indemnify the Hummingbiird Parties from any losses resulting from the conduct, acts, or omissions of you or your assistants, agents, contractors, servants, or employees. Any such policy shall name the Hummingbiird Parties as additional named insureds.
Provider Assistants. Before any Services are performed by any assistants, helpers, subcontractors or other personnel engaged by a Provider, the Provider shall require any such individuals to become a registered, approved Provider on the Hummingbiird Platform pursuant to Hummingbiird policies as described herein. Providers that utilize non-registered, non-approved personnel to assist with a Service could have their permission to access the Hummingbiird Platform revoked. Each Provider assumes full and sole responsibility for the payment of all compensation, benefits and expenses of helpers, assistants, subcontractors and/or other personnel, if any, and for all required and applicable state and federal income tax withholdings as to the Provider and all persons engaged by the Provider in the performance of the Services.
Equipment. As a Provider, you are solely responsible for any costs or expenses incurred by you in connection with the performance of the Services, and in no event shall Hummingbiird reimburse, or be required to reimburse, you for any tools, materials, costs or expenses used in connection with the Services. You shall furnish and maintain, at your own expense, the tools, equipment, supplies, and other materials used to perform the Services. You, at your sole discretion, shall determine what equipment, supplies, and materials are necessary to perform the Services, and where, when, and at what cost, to purchase or maintain any necessary equipment, supplies, tools, and materials.
Representations. By providing Services as a Provider on the Hummingbiird Platform, you represent, warrant, and agree that: (i) you are solely responsible for obtaining the necessary licenses and/or certifications for performance of the Services; (ii) you will not transfer or sell your User account, password and/or identification to any other party; (iii) you will be solely responsible for any and all liability that results from, or is alleged to be a result of, your provision of Services, including, but not limited to personal injuries, death and property damages; (iv) you will comply with all applicable laws, rules and regulations while providing Services, and you will be solely responsible for any violations of such provisions; (v) you will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you; and (vi) you will not attempt to defraud Hummingbiird in connection with your provision of Services.
Reimbursement of Resolution Costs. Notwithstanding anything set forth herein to the contrary, you further represent, warrant, and agree (i) to pay all reasonable out-of-pocket expenses incurred by Hummingbiird in connection with the resolution of any property damage or other claims resulting from a Service you performed for a Customer, including but not limited to, all settlement payments and reasonable attorneys’ fees, and (ii) that Hummingbiird shall have the right to suspend your Provider account until it has received payment in full for all such reimbursable amounts, part of which may be taken from all pending payments and Job Fees to which you would have otherwise been entitled.
Third Party Services, Charitable Organization Programs, Third Party Fees, and Linked Websites
Access to Third Party Services. The Hummingbiird Platform may provide you with access to third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services(collectively, “Third Party Services”), and may enable you to export information or content, including your or other Users’ User Contributions, to Third Party Services such as Twitter or Facebook, through a feature of the Hummingbiird Platform. By using one of these features, you agree that Hummingbiird may transfer that information or User Contribution to the applicable Third Party Service. Hummingbiird does not have or maintain any control over Third Party Services and is not and cannot be responsible for their content, operation or use. By linking or otherwise displaying information from or providing access to any Third Party Services, Hummingbiird does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by those Third Party Services.
Terms and Termination
Changes to the Hummingbiird Platform
We may update the content on this Hummingbiird Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Hummingbiird Platform may be out of date at any given time, and we are under no obligation to update such material.
Information About You and Your Visits to the Hummingbiird Platform
Hummingbiird’s Confidential Information. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Hummingbiird and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Hummingbiird in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Hummingbiird upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” shall mean any and all of Hummingbiird’s trade secrets, confidential and proprietary information and all other information and data of Hummingbiird that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information, disclosed directly or indirectly in writing, orally or by drawings or observation.
Customer’s Confidential Information. As a Provider, you understand that in performing the Services, you will receive certain private and/or confidential information regarding your Customer and will have access to their homes and personal belongings. Except upon order of government authority (e.g., court, administrative agency) having jurisdiction, or upon express written consent by your Customer, you agree that you shall not publish, disseminate or disclose, for your own benefit or the benefit of any third party, any confidential information regarding your Customer, including addresses, telephone numbers and/or financial information. You further agree not to engage in any activity which violates the privacy of any Customers, including, but not limited to, taking unauthorized photographs or making unauthorized audio or video recordings of Customers or their homes or their personal belongings; or publishing, disseminating or disclosing any such photographs or recordings. You acknowledge that your failure to comply with the foregoing shall constitute a material breach of this Agreement, for which you may be liable for monetary and/or injunctive relief, including but not limited to, the forfeiture of any payments from Customers to which you would otherwise be entitled
Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Hummingbiird Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT (INCLUDING MOBILE DEVICES), COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE HUMMINGBIIRD PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE HUMMINGBIIRD PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY HUMMINGBIIRD PLATFORM LINKED TO IT.
YOUR USE OF THE HUMMINGBIIRD PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE HUMMINGBIIRD PLATFORM IS AT YOUR OWN RISK. THE HUMMINGBIIRD PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE HUMMINGBIIRD PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER HUMMINGBIIRD NOR ANY PERSON ASSOCIATED WITH HUMMINGBIIRD MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE HUMMINGBIIRD PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER HUMMINGBIIRD NOR ANYONE ASSOCIATED WITH HUMMINGBIIRD REPRESENTS OR WARRANTS THAT THE HUMMINGBIIRD PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE HUMMINGBIIRD PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE HUMMINGBIIRD PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE HUMMINGBIIRD PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
HUMMINGBIIRD HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
Limitation on Liability
EXCEPT AS SET FORTH IN SECTION 6 HEREOF, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL THE HUMMINGBIIRD PARTIES BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH, YOUR USE, OR INABILITY TO USE, THE HUMMINGBIIRD PLATFORM, ANY HUMMINGBIIRD PLATFORMS LINKED TO IT, ANY CONTENT ON THE HUMMINGBIIRD PLATFORM OR SUCH OTHER HUMMINGBIIRD PLATFORMS, OR ANY SERVICES OR ITEMS OBTAINED OR PROVIDED THROUGH THE HUMMINGBIIRD PLATFORM OR SUCH OTHER HUMMINGBIIRD PLATFORMS, INCLUDING ANY DIRECT, INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. HUMMINGBIIRD IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING PROVIDERS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY SERVICES. Each User should exercise caution and common sense to protect their personal safety and property, just as you would when interacting with any person whom you do not know.
Dispute Resolution; Arbitration of Claims
Generally, in the interest of resolving disputes between you and Hummingbiird in the most expedient and cost effective manner, YOU AND HUMMINGBIIRD MUTUALLY AGREE THAT EVERY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION. Arbitration is less formal than a lawsuit in court. Arbitration uses a panel of three neutral arbitrators instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND HUMMINGBIIRD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
Arbitration. Any arbitration between you and Hummingbiird will be settled by a Panel of three arbitrators under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Hummingbiird. All proceedings related to the arbitration, including but not limited to, the final hearing, shall take place in Tallahassee, Florida. Further, the arbitration proceedings shall be governed by the laws of the State of Florida. Payment of all fees shall be governed by the AAA Rules.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). Hummingbiird’s address for Notice is: Hummingbiird, LLC, 1924 West Pensacola St., Suite 118, Tallahassee, Florida 32304, Attn: Legal Department. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Hummingbiird may commence an arbitration proceeding.
No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND HUMMINGBIIRD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Hummingbiird agree otherwise, the arbitration Panel may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class action proceeding,.
d Enforceability. If any part of this section is found to be unenforceable, then the entirety of this section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in this Agreement will govern any action arising out of or related to this Agreement. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Governing Law; Jurisdiction
This Agreement, and any arbitration related thereto, shall be governed by and interpreted pursuant to the laws of the State of Florida, United States of America, notwithstanding any principles of conflicts of law.
Waiver and Severability
No waiver by Hummingbiird of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Hummingbiird to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by an arbitration panel to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
Development and Testing
For purposes of developing and testing the Hummingbiird Platform, on occasion a Hummingbiird representative may schedule or perform Services on the Hummingbiird Platform within the Tallahassee, Florida market. On such occasions, the contract for such Service shall be between Hummingbiird and such User and shall be governed by the applicable terms of this Agreement, including, but not limited, to Section 28 above.
This Agreement may not be assigned or transferred by you without Hummingbiird’s prior written consent. You agree that this Agreement and all incorporated agreements may be automatically assigned by Hummingbiird, in our sole discretion, in accordance with the “Notice” section of this Agreement.
No Legal Relationship
Comments and Concerns
All other feedback, comments, requests for technical support and other communications relating to the Hummingbiird Platform should be directed to: support@Hummingbiird.com.
Notice Regarding Apple
Except as explicitly stated otherwise, any notice to Hummingbiird shall be given by certified mail, postage prepaid and return receipt requested to:
1924 West Pensacola St.
Tallahassee, Florida 32304 Attn: Legal Department
Such notices shall be deemed given five days after the date of mailing. Any notices to you shall be provided to you through the Hummingbiird Platform or given to you via the email address you provided to Hummingbiird during the registration process or as otherwise listed in your User or Provider account, and such notice shall be deemed given immediately upon sending. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Hummingbiird during the registration process. In such case, notice shall be deemed given five days after the date of mailing.