Tamavu Terms of Service
Last updated: July 29, 2020
These Terms of Service constitute a legally binding agreement between you and Tamavu, LLC. (“tamavu”) governing your use of the tamavu Platform, tamavu’s website(s) https://tamaview-business.com (the “Site”), iOS and Android mobile applications (the “Apps”), and related services, information and communications are collectively referred to as the “tamavu Platform.”
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND ABIDE BY ITS TERMS, YOU MAY NOT USE OR ACCESS THE tamavu PLATFORM.
PLEASE NOTE: SECTION 26, WHICH CONTAINS JURISDICTION-SPECIFIC PROVISIONS, SPECIFIES HOW USERS AND tamavu RESOLVE DISPUTES. FOR U.S. USERS, SECTION 26 CONTAINS AN ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT, WITH LIMITED EXCEPTION, REQUIRES YOU TO SUBMIT DISPUTES AND CLAIMS YOU HAVE AGAINST tamavu TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE READ IT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION. FOR OUR CANADIAN, UNITED KINGDOM, AND EUROPEAN USERS, PLEASE REFER TO YOUR JURISDICTION-SPECIFIC SECTION REGARDING DISPUTE RESOLUTION.
BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR USING THE tamavu PLATFORM, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING, AS APPLICABLE FOR U.S AND CANADIAN USERS, THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT) AND YOU ACCEPT ALL OF ITS TERMS.
The tamavu Platform shall not be used outside the United States.
A few highlights of these Terms of Service include:
The tamavu Platform is a web-based communications platform which enables connections between Clients and Guides. “Clients” are individuals and/or businesses seeking to obtain short-term services (“Projects”) from Guides and are therefore clients of Guides, and “Guides” are businesses seeking to perform Projects for Clients. Clients and Guides together are hereinafter referred to as “Users.” If you agree on the terms of a Project with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
GUIDES ARE INDEPENDENT BUSINESS OWNERS. GUIDES ARE INDEPENDENT CONTRACTORS OF CLIENTS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF tamavu. tamavu DOES NOT PERFORM PROJECTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM PROJECTS. BY CONNECTING PEOPLE AND BUSINESSES SEEKING SERVICES WITH SERVICE PROVIDERS, tamavu OPERATES AS AN ONLINE MARKETPLACE THAT CONNECTS CLIENTS WITH SERVICE PROVIDERS (GUIDES) WHO WISH TO PERFORM A VARIETY OF PROJECTS.
USERS HEREBY ACKNOWLEDGE THAT tamavu DOES NOT SUPERVISE, SCOPE, DIRECT, CONTROL OR MONITOR A GUIDE’S WORK AND EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE PROJECTS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE.
Any reference on the tamavu Platform to a Guide being licensed or credentialed in some manner or having a badge designation indicates only that the Guide has completed a relevant account process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification, or guarantee by tamavu of such Guide’s skills or qualifications or whether they are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for Clients to evaluate when they make their own decisions about the identity and suitability of Guides whom they contact or interact with via the tamavu Platform.
The tamavu Platform enables connections between Users for the fulfillment of Projects. tamavu is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Projects, Guides, or Clients, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings or reviews provided by Users with respect to each other. tamavu makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Projects requested or services provided by, or the communications of or between, Users identified through the tamavu Platform, whether in public or private, via on- or off-line interactions, or otherwise howsoever.
User Background Checks
tamavu DOES NOT conduct any User identity verification, right to work checks, or criminal background checks (“Background Checks”). tamavu cannot confirm that each User is who they claim to be.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. tamavu will not be liable for any false or misleading statements made by Users of the tamavu Platform.
NEITHER tamavu, NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY REFERRED TO AS “AFFILIATES”) IS RESPONSIBLE OR LIABLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE tamavu PLATFORM AND, TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE tamavu AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE tamavu PLATFORM.
User Representations and Warranties
All Users represent and warrant that:
Guides additionally represent and warrant that:
You acknowledge and agree that a legally binding contract with another User (the “Service Agreement”) is formed when you and that User agree on the terms of a Project. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the tamavu Platform, and any other contractual terms accepted by both the Guide and their Client to the extent such terms do not conflict with the terms in this Agreement, including this Section 3, and do not expand tamavu’s obligations or restrict tamavu’s rights under this Agreement. tamavu is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstances, create an employment or other service relationship between tamavu and the Guide, nor will it create an employment relationship between the Client and the Guide. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of tamavu. tamavu’s role, beyond enabling connections between Clients and Guides via its mobile communications platform, is to act as a limited payment collection agent for the Guide to facilitate payment for Projects on behalf of Guide through the tamavu Platform using the Payment Service Provider. In acting as the limited payment collection agent for Projects on the tamavu Platform, tamavu disclaims any other agency or authority to act on behalf of the Guide, and assumes no liability or responsibility for any acts or omissions of the Guide, either within or outside of the tamavu Platform.
engage assistants, helpers, subcontractors or other personnel (collectively “Guide Assistants”). tamavu DOES NOT conduct Background Checks on Guide Assistants. The Guide assumes full and sole responsibility for the acts and omissions of such Guide Assistants and is fully responsible for the lawful payment of all compensation, benefits and expenses of Guide Assistants, if any, and for all required and applicable tax withholdings as to such Guide Assistants. Clients are responsible for confirming with their Guide that any Guide Assistants is authorized to use the tamavu Platform and Clients understand that they are entering into separate Service Agreements with the Guide and each Guide Assistant.
While using the tamavu Platform, Clients, in their sole discretion, determine whether they will be present or not when a Project is performed. Clients who elect not to be present when a Project is performed agree that if someone other than them books the Project on their behalf or is present when the Project is performed, they are appointing that person as their agent (“Client’s Agent”) and the Guide may take and follow direction from the Client’s Agent as if such direction was given from the Client themselves. If you are a Client’s Agent and accessing and using the tamavu Platform on behalf of a Client, you represent that you have the authority to act as their agent and to bind that person as the principal to all provisions of the Terms of Service. Client assumes full and sole responsibility for the acts and omissions of Client’s Agents.
The Client shall pay their Guide in full for all Project services via the Payment Service Provider as indicated on the tamavu Platform, at the rates agreed to by the parties in the Service Agreement. Each User agrees to comply with the Service Agreement and this Agreement during the engagement, performance and completion of a Project.
Users of the Tamavu Platform contract for Projects directly with other Users. Tamavu will not be a party to any contracts for Projects or services. Payment for Project services through the Tamavu Platform is made on our Site or, for Android, in the App, directly from the Client to the Guide via the Payment Service Provider, and not by Tamavu. Tamavu is not obligated to compensate Guide for Client’s failure to pay for services.
The Project Payment, service charge, and platform fee must be paid through the Payment Service Provider on our Site or, for Android, in the App. Users of the Tamavu Platform are required to provide their payment method details to Tamavu and the Payment Service Provider before they can complete the Project request. iOS users will be directed to our Site, while Android users will be directed within the App, to the Payment Service Provider. Clients will be billed a per-minute rate for each Project (the “Rate”). Clients will be responsible for paying the Rate for each Project, which will include (i) the pricing terms of the Project provided by the Guide and agreed upon by the parties (“Project Payment”), (ii) the service charge Tamavu assesses to the Client as payable for the use of the Tamavu Platform, or (iii) cancellation fees, if applicable. Guides will be responsible for paying (i) registration fees, if applicable, (ii) cancellation fees, if applicable, and (iii) repayment of erroneous payments.
Guides will be required to set up a wallet within their Tamavu account on the Site where Tamavu can deposit payment for a completed Project. Guides must have a minimum of $15 in their wallet before funds can be withdrawn. When Client receives confirmation through the Tamavu Platform or via email that a Project has been completed, Client automatically authorizes the Payment Service Provider to process payment. Users may be billed a one-hour cancellation fee at the Guide’s hourly rate through the Payment Service Provider if you book (or accept) a Project, but cancel it before (or fail to appear upon) the scheduled time for performance.
Tamavu reserves the right (but not the obligation) upon request from Client or Guide, or upon notice of any potential fraud, unauthorized charges or other misuse of the Tamavu Platform, to (i) place on hold any Project Payment and/or tip or gratuity (if applicable) or (ii) refund or provide credits, or arrange for the Payment Service Provider to do so.
Users of the Tamavu Platform will be liable for any taxes (including VAT, if applicable in the country where the Project is performed) required to be paid on the Projects provided under the Agreement.
tamavu may from time to time provide certain promotional opportunities to Users. All such promotions will be run at the sole discretion of tamavu, and can be implemented, modified, or removed at any time by tamavu without advance notification. The liability of tamavu and Affiliates, as well as any of tamavu’s corporate partners pursuant to such promotional opportunities and contests, shall be subject to the limitations set forth in Section 15 of these Terms of Service.
tamavu promotional codes (“Promo Codes”) may be available and can be used to pay Project Payments and tamavu service charge and platform fee in part or in full, but may not be used to pay for tips or gratuity associated with a Project provided through the tamavu Platform.
Promo Codes are an offer by tamavu to reduce the amount a Client has to pay in relation to a Project Payment, service charge, and/or platform fee. Promo Codes will not affect the amount of the Project Payment a Guide ultimately receives. The use or application of any Promo Code is solely intended as a promotional initiative and does not in any way create a relationship or engagement between tamavu or the Guide or Client, or constitute wages, fees or other amounts paid to the Guide by tamavu. You agree that you will use Promo Codes in accordance with the terms and conditions governing the Promo Code. A new user Promo Code may only be used once by any User, regardless of the email address used during registration. tamavu reserves the right to withhold or deduct credits or other features or benefits obtained through the use of a Promo Code by you or any other User in the event that the use or redemption of a Promo Code was in error, fraudulent, illegal, or otherwise in violation of the applicable Promo Code terms and conditions or this Agreement.
The tamavu Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, Project postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the tamavu Platform, you should not share your personal contact information with other Users.
Without limitation, the tamavu Platform may not be used for any of the following purposes:
While using the tamavu Platform, you may not:
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. tamavu will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
tamavu may suspend your right to use the tamavu Platform pending its investigation of a potential breach by you of this Agreement. tamavu may deactivate your account or limit your use of the tamavu Platform upon its determination that you breached a provision of this Agreement (a “User Breach”). Decisions by tamavu are final.
If tamavu suspends or deactivates your account or limits your use of the tamavu Platform pursuant to this Section 8, you are thereafter prohibited from registering and creating a new account under your name or business name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
Even after your right to use the tamavu Platform is suspended, terminated or limited, this Agreement will remain enforceable against you. tamavu reserves the right to take appropriate legal action pursuant to the Agreement.
tamavu reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the tamavu Platform at its sole discretion. tamavu will provide you with notice of any such modification or discontinuation as required by law. To the extent permitted by law, tamavu shall not be liable to you for any modification or discontinuance of all or any portion of the tamavu Platform. tamavu has the right to restrict anyone from completing registration as a Guide if such person may threaten the safety and integrity of the tamavu Platform, or if such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the tamavu Platform and deactivating your account. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement or your use of the tamavu Platform.
You must register with tamavu and create an account to use the tamavu Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in, username, password, and payment account information provided by you or given to you by tamavu for accessing the tamavu Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. tamavu has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to notify tamavu immediately.
You acknowledge that telephone calls to or from tamavu, together with its agents and Affiliates, may be monitored and recorded for the purposes of quality control and training.
You verify that any contact information provided to tamavu, our agents and affiliates, and Users, including, but not limited to, your name, business name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or deactivate your account. Should any of your contact information change, you agree to immediately notify tamavu before the change goes into effect. If the change regards ownership of your telephone numbers, you may notify tamavu.
“User Generated Content” is defined as any information and materials you provide to tamavu, its corporate partners, or other Users in connection with your registration for and use of the tamavu Platform and participation in tamavu promotional campaigns, including without limitation the information and materials posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that tamavu is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that tamavu has no obligation to monitor or review User Generated Content, but reserves the right to limit or remove User Generated Content if it is not compliant with the terms of this Agreement.
You hereby represent and warrant to tamavu that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the transfer or sale of illegal, counterfeit or stolen items; (c) will not infringe on any third party’s privacy, or copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or personality (to the extent recognized by law in the country where the Project is performed); (d) will not violate any law, statute, ordinance, code, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, incitement of hatred or false or misleading advertising, anti-spam or privacy); (e) will not be defamatory, libelous, malicious, threatening, or harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, scripts such as Trojan Horses, SQL injections, worms, time bombs, corrupt files, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not claim or suggest in any way that you are employed or directly engaged by or affiliated with tamavu or otherwise purport to act as a representative or agent of tamavu; and (i) will not create liability for tamavu or cause tamavu to lose (in whole or in part) the services of its Internet Service Providers (ISPs) or other partners or suppliers.
The tamavu Platform hosts User Generated Content relating to reviews and ratings of specific Guides (“Feedback”). Feedback is such User’s opinion and not the opinion of tamavu, and has not been verified or approved by tamavu. You agree that tamavu is not responsible or liable for any Feedback or other User Generated Content. tamavu encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. tamavu is not obligated to investigate any remarks posted by Users for accuracy or reliability or to consider any statements or materials posted or submitted by Users about any Feedback but may do so at its discretion. You agree that Feedback enables Users to post and other Users to read about Users’ expression of their experiences and that you will not complain or take any action merely because you happen to disagree with such feedback. You may request removal of Feedback that violates this Agreement by contacting tamavu directly through our Support or Contact forms. Each Client should undertake their own research to be satisfied that a specific Guide has the right qualifications for a Project.
tamavu respects the personal and other rights of others, and expects Users to do the same. tamavu is entitled to identify a User to third parties who claim that their rights have been infringed by User Generated Content submitted by that User, so that they may attempt to resolve the claim directly.
If a User believes, in good faith, that any User Generated Content provided on or in connection with the tamavu Platform is objectionable or infringes any of its rights or the rights of others (e.g. counterfeiting, insult, invasion of privacy), the User is encouraged to notify tamavu. If a User discovers that User Generated Content promotes crimes against humanity, incites hatred and/or violence, or concerns child pornography, the User must notify the tamavu. Such notification can be made at tamavu directly using our Contact Form.
The tamavu Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by tamavu or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the tamavu Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. tamavu does not control any such websites, and is not responsible for their availability, accuracy, content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that tamavu is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that tamavu has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the tamavu Platform at its sole discretion.
The use of any website controlled, owned or operated by a third party is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. tamavu expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the tamavu Platform. You hereby agree to hold tamavu harmless from any liability that may result from the use of links that may appear on the tamavu Platform.
As part of the functionality of the tamavu Platform, you may link your account with online accounts you may have with third party social networking service providers (such as Facebook or Google) (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the tamavu Platform; or (ii) allowing tamavu to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to tamavu and/or grant tamavu access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating tamavu to pay any fees or making tamavu subject to any usage limitations imposed by such third-party service providers. By granting tamavu access to any Third-Party Accounts, you understand that (i) tamavu may access, make available and store (if applicable) your public profile that you have provided to and stored in your Third-Party Account (the “Social Networking Service Content”) so that it is available on and through the tamavu Platform via your tamavu account, including without limitation any friend lists, and (ii) tamavu may submit to and receive additional information from your Third-Party Account to the extent specified when you link your account with the Third-Party Account. Unless otherwise stated in these Terms of Service, all Social Networking Service Content shall constitute User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information or personal data that you post to your Third-Party Accounts may be available on and through your account on the tamavu Platform. Please note that if a Third-Party Account or associated service becomes unavailable or tamavu’s access to such Third-Party Account is terminated by the third-party service provider, then Social Networking Service Content may no longer be available on and through the tamavu Platform. You will have the ability to disable the connection between your account on the tamavu Platform and your Third-Party Accounts at any time, by revoking permissions in the account settings of your Third-Party Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. tamavu makes no effort to review any Social Networking Service Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and tamavu is not responsible for any Social Networking Service Content.
tamavu operates as an online marketplace that connects Clients with service providers (Guides) who wish to perform a variety of Projects. tamavu does not perform Projects and does not employ people to perform Projects. Guides operate as independent business owners and are customarily engaged in an independently established business of the same nature as that involved in the services performed for Clients through the tamavu Platform. tamavu does not control or direct the Guides’ performance of their services or set their work locations or work hours. Guides provide services under their own name or business name, and not under tamavu’s name. Guides provide their own tools and supplies to perform their services; tamavu does not provide the tools or supplies. Guides are free to maintain a clientele without any restrictions from tamavu and are free to offer and provide their services elsewhere, including through competing platforms. tamavu does not set Guides’ hours or terms of work. Guides are free to accept or reject Clients and contracts. Guides are not penalized for rejecting Clients or contracts, though if Guides accept a Client or contract through the tamavu Platform, they are expected to fulfill their contractual obligations. Guides set their own rates for services performed in the tamavu general marketplace, without deduction by tamavu.
The tamavu Platform is not an employment agency service or business and tamavu is not an employer of any User. Guides acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Service Agreements and performing Projects and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, typefaces and other content, including tamavu designs, trademarks, and logos (collectively “Proprietary Material”) that Users see or read through the tamavu Platform is owned by tamavu, aswdfk User Generated Content, which Users hereby grant tamavu a license to use as set forth above in Article 10. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. tamavu owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials. The Proprietary Material is protected by domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the tamavu Platform without tamavu’s express prior written consent and, if applicable, the consent of the holder of the rights to the User Generated Content. Any use of such Proprietary Material other than as permitted herein is expressly prohibited.
The service marks and trademarks of tamavu, including without limitation tamavu, and associated logos, are service marks owned by tamavu. Any other trademarks, service marks, logos and/or trade names appearing via the tamavu Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
tamavu respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the tamavu Platform infringe upon your copyright or other intellectual property right, please send the following information to tamavu's Copyright Agent at: tamavu, LLC 16192 Coastal Highway, Lewes, Delaware, County of Sussex or at firstname.lastname@example.org:
15. Disclaimer of Warranties
(a) Use of The tamavu Platform Is Entirely at Your Own Risk
THE TECHNOLOGY OF THE tamavu PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, AND NON-INFRINGEMENT. tamavu MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE tamavu PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE tamavu PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE tamavu PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
tamavu does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a User, any third-party through the tamavu Platform, or any hyperlinked website or featured in any banner or other advertising, and tamavu will not be a party to or in any way be responsible for monitoring any transaction between you and other Users, or you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, tamavu and Affiliates do not warrant that access to the tamavu Platform will be uninterrupted or that the tamavu Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the tamavu Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Project, service, information or materials provided through or in connection with the use of the tamavu Platform. tamavu and Affiliates are not responsible for the conduct, whether online or offline, of any User. tamavu and Affiliates do not warrant that the tamavu Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. tamavu and Affiliates will implement appropriate technical and organizational measures to ensure a level of security adapted to the risk for any personal information supplied by you.
Notwithstanding any feature a Client may use to expedite tamavu selection, each Client is responsible for determining the Project and selecting their Guide and tamavu does not warrant any goods or services purchased by a Client and does not recommend any particular Guide. tamavu does not provide any warranties or guarantees regarding any Guide’s ability, professional accreditation, registration or license.
(b) No Liability
You acknowledge and agree that tamavu is only willing to provide the tamavu Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold tamavu and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys’ fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the tamavu Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including, without limitation, trespassing, stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by tamavu and Affiliates, and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL tamavu AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR, AND YOU HEREBY RELEASE tamavu AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY tamavu, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR ATTORNEYS’ FEES AND COSTS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE tamavu PLATFORM OR THE PROJECT SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN SUCH CASES THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
tamavu AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS tamavu PLATFORM. tamavu AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE tamavu PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT tamavu AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO tamavu (IF YOU ARE A CLIENT) OR TOTAL PROJECT PAYMENTS PAID TO YOU BY CLIENTS (IF YOU ARE A GUIDE), DURING THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless tamavu and Affiliates from and against any and all Liabilities incurred in connection with (i) your use or inability to use, or your participation on, the tamavu Platform; (ii) your participation in Projects, or your ability or inability to perform or obtain the performance of Projects or to receive payment therefore; (iii) your breach or violation of this Agreement; (iv) your violation of any law, or the rights of any User or third party; (v) your failure to abide by your representations and warranties in Section 2; (vi) any content submitted by you or using your account to the tamavu Platform, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful; and (vii) if you are a Client, the acts or omissions of any Client’s Agents. tamavu reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of tamavu.
To expedite resolution and reduce the cost of any dispute, controversy or claim related to, arising from or regarding your use of the tamavu Platform, your relationship with tamavu, Projects, or this Agreement (including previous versions), (“Dispute”), you and tamavu agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least 30 days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is the one associated with your account, with an email copy to the email address you have provided to tamavu. tamavu’s address for such notice is Attention: Legal tamavu, LLC email@example.com.
PLEASE NOTE: FOR MORE INFORMATION ABOUT DISPUTE RESOLUTION TERMS WHICH CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER.
The following applies to any App accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"):
You acknowledge and agree that (i) the Agreement is entered into between you and Prozesse Dynafit ohne BKST only, and Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) Prozesse Dynafit ohne BKST, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between tamavu and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of tamavu, subject at all times to warranty limitations and exclusions set forth in this Agreement.
You and tamavu acknowledge that, as between tamavu and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and tamavu acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between tamavu and Apple, tamavu (and not Apple) will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, though only to the extent required by this Agreement.
You and tamavu acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
Failure by tamavu to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and tamavu with respect to its subject matter, and supersedes and governs any and all prior agreements or communications except as otherwise specified in the Arbitration Agreement in Section 26. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” provision in in Section 26 below, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. You hereby acknowledge and agree that we may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Upon the effective date of the assignment of the Agreement (a) tamavu shall be relieved of all rights, obligations and/or liabilities to you arising in respect of events postdating the effective date of the assignment and, (b) the assignee entity shall replace tamavu for the performance of this Agreement. This Agreement may not be assigned or transferred by you without our prior written approval. Any assignment in violation of this Section 20 shall be null and void. This Agreement will inure to the benefit of tamavu, its successors and assigns.
Guides alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Projects. Indeed, certain types of Projects and services may be prohibited altogether, and it is the responsibility of Guides to avoid such prohibited Projects and services. Penalties may include fines or other law enforcement. If you have questions about how national, state, or local laws apply to your Projects and services on the tamavu Platform, you should first seek appropriate legal guidance.
Because tamavu does not supervise, scope, direct, control, or monitor a Guide’s work or performance of Projects, Clients must determine for themselves whether a Guide is qualified to perform the specific Project at hand. Clients may also wish to discuss with their Guide any specific hazards, obstacles, or impediments in the Project location (both visible and concealed) that may impact the performance of the Project.
The provisions of this Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and they will not be construed as conferring any rights to any third party (including any third party beneficiary rights except as set forth in Section 18) or to give any person or entity other than the User any interest, remedy, claim, liability, reimbursement, claim of action or any other claim of action with respect to or in connection with any agreement or provision contained herein or contemplated hereby. None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement, provided, however, that a Client’s Agent may act in the name of and on behalf of his/her Client.
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically, including without limitation by email or by posting Notices on the Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all Notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day it is shown as delivered by the overnight delivery service’s tracking information, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the tamavu Platform, please contact us using our Contact Form and detailing your concerns.
By using the tamavu Platform, you agree to transact electronically through the tamavu Platform. You agree that your electronic signature is the legal equivalent of your manual signature. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing. You also agree that no certification authority or other third-party verification is necessary to validate your electronic signature, and the lack of such certification or third-party verification will not in any way affect the enforceability of your electronic signature.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND tamavu CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE tamavu PLATFORM.
Telephone Communications and Agreement to be Contacted
(a) Your Consent to Receive Automated Calls/Texts, Email, and Mail.
You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive calls or text messages (which may include prerecorded voice messages, and/or autodialed calls) from tamavu and Affiliates, or from independent contractors (including Guides) related to promotions, your account, registration, orientation, upcoming or scheduled Projects, product alterations, changes and updates, service outages, reminders about incomplete or upcoming Projects, follow ups to any push notifications delivered through our mobile application, any transaction with tamavu, and/or your relationship with tamavu. You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that tamavu may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means. You agree to receive automated calls and text messages from tamavu and Affiliates, or from independent contractors (including Guides) even if you cancel your account or terminate your relationship with tamavu, except if you opt-out (see below). You understand that you do not have to agree to receive automated promotional calls/texts as a condition of purchasing any goods or services. To opt-out, please see the Opt-Out Instructions below.
(b) Opt-Out Instructions.
Your consent to receive automated calls and texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, text STOP to any text message you receive or contact Support and specify that you want to opt out of text messages. You may also text HELP for help. You acknowledge and agree to accept a final text message confirming your opt-out. To opt-out of automated voice calls (not text messages), you must (i) provide tamavu with written notice revoking your consent to receiving automated calls; (ii) in that written notice, you must include your full name, mailing address, account number, and the specific phone number(s) for which you wish to stop automated calls; and (iii) send this information to Support. It is your sole responsibility to notify tamavu if you no longer want to receive automated calls or text messages. You waive any rights to bring claims for unauthorized or undesired calls or text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request. Please note that if you opt out of automated calls or text messages, we reserve the right to make non-automated calls to you.
(c) Fees and Charges.
There is no fee to receive automated telephone calls or text messages from tamavu, our agents, affiliates, and independent contractors (including Guides). However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Check your data and/or voice plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that tamavu and Affiliates, and independent contractors (including Guides) are not responsible for such charges.
(d) Unauthorized Use of Your Telephone Device.
You must notify tamavu immediately of any breach of security or unauthorized use of your telephone device. Although tamavu and Affiliates, and independent contractors (including Guides) will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.
(e) Your Indemnification to tamavu.
You agree to indemnify tamavu and Affiliates, and independent contractors (including Guides) for any privacy, tort or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify tamavu of any changes in your contact information, including telephone number. You agree to indemnify, defend and hold tamavu and Affiliates harmless from and against any and all such claims, losses, liability, costs and expenses (including reasonable attorneys’ fees). tamavu shall have the exclusive right to choose counsel, at your expense, to defend any such claims.
You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service provider, mobile service, and other services needed to receive calls and text messages. Text messaging may only be available with select carriers with compatible handsets. Your obligations under this Section 26 will survive termination of these Terms of Service.
Worker Classification and Withholdings
tamavu does not employ Guides. tamavu is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with a User’s use of the tamavu Platform. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Media and User Generated Content
To the extent permitted by law, you hereby grant tamavu a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully-paid, unrestricted, sublicensable (through multiple tiers), transferable right to exercise all copyrights, publicity rights, and any other rights you have in (1) your User Generated Content and (2) any videotape, film, recording, photograph, voice, or any instrumental, musical, or other sound effects you provide to tamavu (collectively, “Media”) in exchange for use of the tamavu Platform, in any media now known or not currently known in order to market, operate, and improve upon the tamavu Platform, including but not limited to the right to the following:
Further, you hereby waive any and all moral rights in connection with the Media. Each User warrants and represents that they have the lawful authority to grant the rights set out above, and that such rights do not negatively impact any third-party rights.
Each User acknowledges that tamavu shall not owe any financial or other remuneration for using the Media, Physical Likeness, or Voice provided hereunder by such User, either for initial or subsequent transmission or playback.
Each User hereby waives all rights and releases tamavu and Affiliates from, and shall hold harmless against any such parties for, any claim or cause of action, whether now known or unknown, including without limitation, for defamation, malicious falsehood, invasion of right to privacy, data protection, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s identity, Physical Likeness, Media, or Voice in connection with the tamavu Platform.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542, WHICH READS AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
If you are not a California resident, you waive your rights under any statute, regulation, or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Further, in consideration of the services provided by tamavu, you hereby release tamavu from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities or other harms resulting from or relating to telephone calls or text messages, including without limitation any claims, causes of action, or lawsuits based on any alleged violations of the law (including, without limitation, the Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, or any similar state and local acts or statutes, and any federal or state tort or consumer protection laws).
tamavu and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
Dispute Resolution - Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND tamavu CAN BRING CLAIMS COVERED BY THIS ARBITRATION AGREEMENT. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND tamavu TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND tamavu MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL DISPUTES OR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act (“FAA”) and survives the termination of this Agreement and your relationship with tamavu.
To the fullest extent permitted by applicable law, you and tamavu agree to arbitrate any and all disputes and claims (“collectively, “Claim” or “Claims”) relating to, arising from or regarding your use of the tamavu Platform, your relationship with tamavu, Projects, or this Agreement (including previous versions), including Claims by tamavu, Claims against tamavu and Claims against tamavu’s Affiliates (including its parent company).
To the fullest extent permitted by applicable law, this includes, but is not limited to, claims related to payments, any city, county, state or federal wage and hour law, compensation, meal or rest breaks, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, personal injury, property damage or loss, emotional distress, any promotions or offers made by tamavu; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; claims arising under the Fair Labor Standards Act, Civil Rights Act, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by tamavu and covered by the Employee Retirement Income Security Act or funded by insurance), and state or local statutes, if any, addressing the same or similar subject matters; and all other federal, state or local statutory and common law claims.
If there is a dispute about the arbitrability of any claim (including about the formation, scope, applicability, interpretation, validity, and enforceability of this Arbitration Agreement), you and tamavu agree that this threshold dispute shall be resolved by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND tamavu ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL DISPUTES AND CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES THAT, BY THE TERMS OF THIS ARBITRATION AGREEMENT, ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(b) Prohibition of Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and tamavu agree that any arbitration will be limited to the Claim between tamavu (and/or, if applicable, its Affiliates) and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND tamavu ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and tamavu otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to California Private Attorney General Act Claims, which are addressed separately below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, to the fullest extent allowed by law: (1) you and tamavu agree not to bring a representative action on behalf of others under the California Private Attorneys General Act (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and tamavu agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”).
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules and Logistics Governing Arbitration
In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party. The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules. You and tamavu agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within 30 days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, the parties will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) If tamavu initiates arbitration under this Arbitration Agreement, tamavu will pay all AAA filing and arbitration fees.
(ii) If a Client or Guide files a Claim in accordance with this Arbitration Agreement the parties will split all AAA filing and arbitration fees. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), however, then the allocation of fees will be governed by the applicable AAA Rules.
(iii) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(v) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and tamavu agree otherwise, any arbitration hearings with a Guide will take place in the county of the Guide’s billing address, and any arbitration hearings with a Client will take place in the county in which the Client received Project services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(e) Exceptions to Arbitration
The Arbitration Agreement shall not require arbitration of the following types of claims:
In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
Except as expressly provided otherwise, this Agreement and your use of the tamavu Platform will be governed by, and will be construed under, the laws of the State of Delaware, without regard to choice of law principles. This choice of law provision is only intended to specify the use of Delaware law to interpret this Agreement.