Terms and Conditions for Contractors
SHORTLIST TERMS OF SERVICE FOR CONTRACTORS
Last Updated: 4.01.2019
These Terms of Service (“Terms”) apply to Contractors’ (as defined below) access to and use of the websites, mobile applications and online products and services, including but not limited to contractor onboarding, private talent, freelancer management, payment, and vendor management services (collectively, the “Services”) provided by Shortlist Project, Inc., a Delaware corporation (“Shortlist” or “we”), located at 650 California St, San Francisco, CA 94108, United States. By clicking “I Accept” or otherwise using our Services, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 6, do not use our Services.
We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms for specific Services, the additional terms will control with respect to the specific Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us at email@example.com.
1. Members and Contractors
Shortlist provides Services to both customers, to whom Shortlist provides Services for a fee (“Members”), and their contractors such as freelancers, service providers, technology providers, and other individuals or entities, for whom the Services are free (“Contractors”) (collectively, “Users”). These Terms only apply to Contractors. The use of the Services by Members will be governed by the Shortlist Terms of Service for Members.
Shortlist provides Services to Contractors free of charge.
2. User Accounts, Eligibility, and Account Security
If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person or entity’s behalf and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. You may not use our Services if you are a competitor providing services similar to our Services.
You must be at least 18 years of age to use our fee-based Services. If you are under 18 years of age (or the age of legal majority where you live), you may only use our other Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such User in relation to our Services.
You must register for an account to access some or all of our Services. You agree to provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You are not permitted to allow others to use your account without prior authorization from Shortlist. We reserve the right to reclaim usernames or accounts on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames or accounts.
3. User Data
Our Services allow you and other users to host, create, post, store and transmit content, including messages, text, photos, videos, software and other materials (collectively, “User Data“). Except for the license you grant below, you retain all rights in and to your User Data, as between you and Shortlist.
We may use and disclose information that is not User Data for any purpose, except where we are required to do otherwise under applicable law. In some instances, we may combine non-User Data with User Data. If we do, we will treat the combined information as User Data as long as it is combined.
We may disclose your User Data to law enforcement, government officials, or other third parties if we believe necessary or appropriate: (i) to respond to a subpoena, court order or other legal process, (ii) to comply with laws, statutes, rules or regulations, (iii) to prevent physical harm or financial loss, to report suspected illegal activity, or to investigate violations of our Terms of Service.
We provide functions that allow you to control who may access User Data. If you enable the features that allow you to share the User Data with others, anyone you’ve shared content with (including the general public, in certain circumstances) may have access to your User Data.
You may not create, post, store or share any User Data that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Data, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Data, we may delete or remove User Data at any time and for any reason with or without notice.
We do not guarantee that User Data will be free from loss, theft, misuse, or unauthorized access, disclosure, alteration or destruction. You must use a secure encrypted connection when transmitting User Data to us. It is your responsibility to make backups of User Data. You are solely responsible for protecting your passwords and for limiting access to your user account, computers and devices.
Upon termination of the Services by Shortlist, for reasons other than cause, or at your direction, you may request access to your User Data. You must make such request within thirty (30) days following termination. Otherwise, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your account.
4. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from that user and Shortlist;
- Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell, resell, rent, lease, transfer, assign, distribute, display, disclose, modify, license, or otherwise commercially exploit the Services except at our express direction;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services;
- Use our Services other than for their intended purpose or in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services;
- Reverse engineer any aspect of our Services or do anything that might discover source code or attempt to bypass or circumvent any content-filtering techniques or measures employed to prevent or limit access to any part of our Services;
- Monitor the functionality, performance, or availability, of the Services, or use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services, for example, by bypassing or ignoring instructions contained in our robots.txt file;
- Develop or use any applications that interact with our Services without our prior written consent;
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, pyramid schemes, unsolicited promotions, political campaigning, advertising or solicitations;
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may only upload, post or otherwise share User Data that you have all necessary rights to disclose. If you upload, post or otherwise share confidential information, you are fully responsible for such conduct and you agree to indemnify Shortlist for any claim related to such confidential information. You may not upload, post, store or share any User Data that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- Would violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- Is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Shortlist or others to any harm or liability of any type.
If you violate this Section 3, Shortlist may terminate or suspend your access to the Services as described in Section 18.
5. Independent Contractors
Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Contractors or Members respectively provide their services as independent contractors under separate agreements with you. Any interaction Shortlist has with Members or Contractors, including but not limited to onboarding, payments, and payment processing, is performed as part of the Services on your behalf.
6. Services; Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Shortlist or our licensors or other third parties and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services in the manner permitted by these Terms. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
Our Services connect Members with Contractors. We do not endorse or make any representations about the Members. You should perform your own due diligence on Members and other Contractors respectively. Agreements between Members and Contractors are entirely at each party’s own cost and risk. We are not a party to, nor will we review, any agreement between you and a Member or Contractor. We are not liable for Member or Contractor acts or omissions.
As part of the Services, we may make payments to you. The payment provider or Shortlist may be required to verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. These inquires may include asking you for further information, requiring you to take steps to confirm ownership of your email address or financial instruments, or verifying information you provide against third party databases or through other sources. If you do not provide this information or we cannot verify your identity, we can refuse to provide payment services.
Shortlist, Shortlist.co, and our logos, product or service names, slogans and the look and feel of the Services are trademarks of Shortlist and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
Any questions, comments, suggestions, ideas, original or creative materials or other information about Shortlist or our products or Services that you post, submit or otherwise communicate to us (collectively, “Feedback”), is non-confidential and will become the sole property of Shortlist. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
9. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Shortlist’s Designated Agent as follows:
Designated Agent: Shortlist Project, Inc., Attn: Legal
919 North Market St, Suite 950
Wilmington, DE 19801, USA
Telephone Number: +1 (646) 712-9306
E-Mail Address: firstname.lastname@example.org
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Shortlist for certain costs and damages.
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Shortlist does not control or endorse, and makes no representations or warranties regarding, any Third-Party and your access to and use of such Third-Party Content is at your own risk.
You acknowledge and agree that Shortlist uses third-party software and services in connection with the Services (“Third-Party Services”), and Shortlist disclaims any liability and has no obligations with respect to the Third-Party Services. You agree to abide by the terms and conditions provided by Shortlist with respect to the Third-Party Services.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Shortlist and our officers, directors, agents, partners and employees (individually and collectively, the “Shortlist Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Services (including the payment Services); (b) your User Data or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (e) your conduct in connection with our Services; any disputes between you and your Contractors; or (f) any illegal activities committed by you in connection with your use of the Services (including without limitation your use of the payment provider Services). You agree to promptly notify Shortlist Parties of any third-party Claims, cooperate with Shortlist Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Shortlist Parties will have control of the defense or settlement, at Shortlist’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Shortlist or the other Shortlist Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Shortlist does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Shortlist attempts to make your use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
13. Limitation of Liability
To the fullest extent permitted by applicable law, Shortlist and the other Shortlist Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental, punitive or special damages or lost profits, even if Shortlist or the other Shortlist Parties have been advised of the possibility of such damages.
The total liability of Shortlist and the other Shortlist Parties, for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of the amount paid by you to use our Services or $100.
The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Shortlist or the Shortlist Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
We are not liable for Member or Contractor acts or omissions. We are not liable for any failure or delay in payment of Contractors as a result of the acts or omissions of any third-party payment providers.
To the fullest extent permitted by applicable law, you release Shortlist and the other Shortlist Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which says “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
15. Transfer and Processing Data
Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to waive your right to a jury trial and arbitrate certain disputes and claims with Shortlist and limits the manner in which you can seek relief from us. No class or representative actions or arbitrations are allowed under this agreement.
Except for small claims disputes in which you or Shortlist seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Shortlist seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Shortlist waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute that you have against Shortlist, you agree to first contact Shortlist and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Shortlist by email at email@example.com or by certified mail addressed to: Shortlist Project, Inc., HQ, ATTN: Legal, 650 California St., San Francisco, CA 94108, United States. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Shortlist cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may, as appropriate in accordance with this section, submit the dispute to binding arbitration administered by JAMS or, where applicable, in court. All submitted disputes will be resolved through confidential binding arbitration held in the city and county of San Francisco, California or may be conducted telephonically or via video conference for disputes alleging damages less than $10,000 in accordance with the Streamlined Arbitration Rules and Procedures (“Rules“) of the Judicial Arbitration and Mediation Services (“JAMS“), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. You will have the right to an in-person hearing in your hometown area.
You and Shortlist agree that any dispute arising out of or related to these Terms or our Services is personal to you and Shortlist and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Shortlist agree that these Terms affect interstate commerce and that the enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrators, Shortlist, and you will maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrators will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
You and Shortlist agree that for any arbitration you initiate, you will pay the filing fee and Shortlist will pay the remaining JAMS fees and costs. For any arbitration initiated by Shortlist, Shortlist will pay all JAMS fees and costs. You and Shortlist agree that the state or federal courts of the State of California and the United States sitting in city and county of San Francisco, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one (1) year after such claim arose; otherwise, the claim is permanently barred, which means that you and Shortlist will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 16 by sending notice by e-mail to firstname.lastname@example.org, with the subject line: “Arbitration Opt Out,” and include in the e-mail (a) your name and address and (b) the date on which you first accepted these Terms and used the Services. Alternatively, you may opt out by mailing an opt-out request with the same information to Shortlist Project, Inc., HQ, ATTN: General Counsel, 650 California St., San Francisco, CA 94108, United States, postmarked no later than thirty (30) days from the date you first accepted these Terms and used the Services. These are the only two forms of notice that will be effective to opt out of this dispute resolution procedure. In order to be effective, the opt out notice must include your full name, address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 17.
If any portion of this arbitration section is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the arbitration section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the arbitration section; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this arbitration section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this section will be enforceable.
17. Governing Law and Venue
Any dispute arising from these Terms and your use of our Services will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in city and county of San Francisco, California. Note that depending on the laws of your jurisdiction, you may be able to bring suit in your local jurisdiction.
18. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. In such circumstances, we will endeavor to give notice to you as outlined at the beginning of these Terms, but we may not be able give notice to you if we determine that your use of the Services poses of a security risk or threat to the function of the Services, or poses a security or liability risk to Shortlist, its affiliates or any third party. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of Shortlist to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
Neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by Shortlist, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
Neither these Terms nor any right or duty under these Terms may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party; provided that, a party may upon notice to the other party but without the other party’s consent, assign these Terms to an affiliate. The preceding limitation will not apply to a Change of Control (as defined below) of either party. For purposes of these Terms, “Change of Control” means a stock sale, reorganization, merger, acquisition of assets, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which persons or entities who were the shareholders of a party immediately prior to such stock sale, reorganization, merger, acquisition of assets, or consolidation or other transaction do not, immediately thereafter, own more than fifty percent (50%) of the combined voting power entitled to vote generally in the election of directors of the sold, reorganized, merged, acquired or consolidated company’s then-outstanding voting securities, in substantially the same proportions as their ownership immediately prior to such stock sale, reorganization, merger, acquisition of assets, consolidation or other transaction. Any attempted transfer, assignment or delegation of these Terms in violation of this Section will be void and without effect. Subject to the foregoing, these Terms will be binding upon, will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.