Legal

Directly Terms of Service

Directly Software, Inc. ("Directly", "we", "us", "our" and other similar pronouns) owns and operates the Directly website located at directly.com and the Platform.  “You” means the person or entity that registers with or uses Directly; “you” are a User that uses the Platform to create, view or complete a Request, as described below.

These Terms of Service (the "Agreement") set forth the legally binding terms for your use of the Directly website and Platform.  You accept this Agreement by creating, viewing or completing Requests, registering as a User, or by accessing and/or using the Platform. By accessing and/or using the Platform, you represent and warrant that you have the right, authority, and capacity to enter into the Agreement and to abide by all of the terms and conditions set forth herein.  If you do not agree with all provisions of this Agreement, you must not access and/or use the Platform.

This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.

Preamble

Technology. Directly provides a set of mobile and CRM apps and supporting technology (“Platform”) that allows Directly enterprise customers and their users, customers, partners, resellers, distributors, developers, and community members (collectively, “Users”) to create, view and complete questions, cases, tickets and other types of tasks (“Requests”).  

User Content. The content created or provided by Users when creating, viewing and completing Requests is considered “User Content”. You are an independent contractor and solely responsible for your User Content and activity related to User Content.

User Conduct and Confidentiality. You are responsible for maintaining a high level of professionalism and confidentiality, as described in the User Conduct and Confidentiality sections below. We may suspend or limit your rights to use the Platform or terminate this Agreement, at any time for any reason at our sole discretion, including any use of the Platform in violation of this Agreement.

If you agree with the general principles above, you’ll find the Agreement straightforward.

Agreement

1. ACCOUNTS

1.1 Account Creation.  In order to use the Platform, you may be required to register for an account ("Directly Account") and provide certain information about yourself.  You represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Platform does not violate any applicable law or regulation or the terms of this Agreement. You may delete your Directly Account at any time, for any reason, by following the instructions on the Platform. You may be required to provide certain information about your professional background, which you authorize us to verify with third-party sources.  In the event you apply to complete Requests, we reserve the right to accept or reject your application and to terminate your ability to complete Requests at any time.

1.2 Account Responsibilities.  You are responsible for maintaining the confidentiality of your Directly Account login information and are fully responsible for all activities that occur under your Directly Account.  You agree to immediately notify us of any unauthorized use, or suspected unauthorized use of your Directly Account or any other breach of security.

1.3 Login via Social Network.  Directly may allow you to log in using your account login information from certain third party social networking sites (“Third Party Account”), e.g., Facebook or LinkedIn.  If you log in using your Third Party Account, we may receive information about you from such Third Party Account.

2. PLATFORM

2.1 License. Subject to the terms of this Agreement, we grant you a non-transferable, non-exclusive license to access and use the Platform for the purpose of creating, viewing, and completing Requests.

2.2 Restrictions. You will not: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Platform; (b) modify, copy, distribute, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Platform; (c) access the Platform in order to build a similar or competitive service.

2.3 Modification. We reserve the right, at any time, to modify, suspend, or discontinue the Platform or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform or any part thereof.

2.4 Ownership. You acknowledge that all the intellectual property rights in the Platform are owned by us or our licensors. The provision of the Platform does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. We and our licensors reserve all rights not granted in this Agreement.

2.5 Third Party Partners. Certain features of the Platform may be operated by our third party partners (“Third Party Partners”). To use these Third Party Partner features, you may be required to create an account with or otherwise login with the applicable Third Party Partner.  Any information provided through a Third Party Partner feature is collected by the applicable Third Party Partner on its servers and is governed by its terms of service and privacy policy.  That information may be shared with Directly and you hereby consent to the Third Party Partner sharing that information with Directly.

2.6 Not Part of the Platform.  The Platform may be made available through Directly’s customer’s websites and other online properties, and our customers are responsible for their properties (other than the extent to which the Platform is available through those properties). None of the User activities or the User Content is part of the Platform, provided by Directly, or the responsibility of Directly.  

3. USER CONTENT

3.1 User Content. User Content includes any and all information and content that Users submit to the Platform, other than feedback about the Platform. You are solely responsible for your User Content and any activity related to User Content or use of the Platform. You assume all risks associated with use of User Content and activity related to User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable.  You hereby affirm, represent, and warrant that (a) you own, or have the necessary licenses, rights, and/or consents to transmit your User Content via the Platform and to license and assign the rights in the User Content, and (b) your User Content, activity related to User Content, and use of the Platform does not violate the Acceptable Use Policy below.

3.2 Assignment and License.  You hereby assign all your rights in your User Content to Directly (which may assign such rights to each Directly customer to which the User Content relates (“Applicable Customer”)).  You agree to irrevocably waive (and cause to be waived) and agree never to assert any claims and assertions of moral rights or attribution with respect to your User Content.  To the extent you respond to a Request, Directly, or the Applicable Customer (through its agreement with Directly), grants to you a nonexclusive license (subject to relevant confidentiality obligations) to reproduce, create derivative works of, distribute, display, and perform your User Content related to such Request.

3.3 Feedback. We will treat any feedback or suggestions you provide to us as non-confidential and non-proprietary. Thus, in the absence of a written agreement with us to the contrary, you agree that you will not submit to us any information or ideas that are, or you consider to be, confidential or proprietary.

4. USER CONDUCT

4.1 Acceptable Use Policy.  The following sets forth our "Acceptable Use Policy": You understand that all User Content, including any Request you create, view or complete, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such User Content originated. This means that you, and not we, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available via the Platform, including any Request you create, view or complete. You must not use the Platform to:

a. upload, post, email, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, objectionable, or infringing of any patent, trademark, trade secret, copyright or other proprietary rights;

b. upload, post, email, transmit or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

c. state or imply that your User Content is in any way provided, sponsored or endorsed by us, an Applicable Customer, or any other company, organization or association;

d. impersonate any person or entity, including, but not limited to, a forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;

e. collect or store personal data about other Users;

f. harm minors in any way;

g. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose;

h. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

i. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;

j. violate any applicable local, state, national or international law;

k. forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Platform;

l. create multiple Directly Accounts, or “game” the system in order to falsely earn points, rewards or reputation, including without limitation by getting friends to submit Requests, or using crowd labor platforms to boost results;

m. interfere with or disrupt our servers or networks, or disobey any requirements, procedures, policies or regulations of networks, including using any device, software or routine to bypass our robot exclusion headers;

n. attempt to gain unauthorized access to the Platform, other computer systems or networks connected to or used together with the Platform, through password mining or other means.

4.2 Responsibility for User Content.  Directly does not control or endorse the User Content posted via the Platform and, as such, does not make any representations, warranties, or commitments regarding User Content (including its accuracy, integrity or quality), even if Directly provides a “helpfulness grade” or other appraisal of the User or User Content.  Directly and our designees shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any User Content that is available via the Platform. You bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. 

4.3 Codes of Conduct and Training Rules.  If you complete a Request, you will comply with all codes of conduct and training rules provided to you (i) by Directly or (ii) by the Applicable Customer with respect to Requests related to the Applicable Customer.

5. RELATIONSHIP

5.1 Relationship.  If you are using the Platform to complete Requests, you affirm that you are fully able and competent to enter into the Agreement.  Users are not employees or agents of Directly or Directly’s customers.  Users, Directly, and Directly customers expressly disclaim any employment relationship. You are acting as an independent contractor.  Nothing about your participation with Directly or Directly’s customers is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship.

5.2 User Control When Completing Requests.  In the event you complete Requests, in no event shall Directly or Directly’s customers have control over your work. You will: set your hours of work and amount of time worked; determine your own patterns and methods of work; use your own devices, supplies, tools, and equipment; perform work for any third parties of your choosing; and perform all work independently. You will not: use any property or equipment of Directly or Directly’s customers or users; perform any services on any premises of Directly’s customers or users; be required to provide any reports, written or oral, to Directly’s customers or users; or be integrated into the business operations or dealings of Directly’s customers.  Directly customers will not: pay for your expenses; provide instructions or direction to you on the location, time, methods or means of performance of services; or supervise you.

6. REWARDS

6.1 Payment.  Directly or the Applicable Customer will make payments to you based on Requests that you complete, in accordance with Directly’s and the Applicable Customer’s policy for determining the amounts of such payments.  We may institute a threshold of reward amounts that you must meet in your Directly Account in order for a payment to be made to you (e.g., paying you only after the sum of your unpaid rewards is more than $20).  In the event that you earn rewards for completing Requests, we (or the Applicable Customer) will pay you those rewards each week, month, or at an interval determined by us or the Applicable Customer. We reserve the right (but not the obligation), at our election or upon request from the Applicable Customer or upon notice of any potential fraud, unauthorized charges or other misuse of the Platform, to place on hold or cancel any payment.  We in our sole discretion will select a payment processor and you must create an account with this payment processor to receive payment.  We may deduct any payment processing fees from any payments to you.    

6.2 Taxes. If you complete Requests, you are solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to receipt of rewards in connection with completing Requests and receiving payments therefor.  Directly or the Applicable Customer will report payments to you to the Internal Revenue Service (or other taxing authorities) as required by law.

7. CONFIDENTIAL INFORMATION

By completing a Request, you acknowledge and agree that each Request may contain private, proprietary or confidential information of (a) the applicable User or (b) the Applicable Customer, whether or not marked as proprietary or confidential (collectively, the “Confidential Information”). You will keep all Confidential Information in strictest confidence and will not disclose any Confidential Information to any other entity or person or use Confidential Information except to complete a Request.  Confidential Information does not include information that demonstrably (a) is or becomes generally available to the public other than as a result of disclosure by you; (b) was possessed by you prior to being furnished by the Platform; or (c) becomes available to the receiving party from a source other than the Platform. Further, it shall not be a violation for you to disclose Confidential Information in response to a subpoena or other legal process served upon you or where applicable law or regulation requires the disclosure of such information, provided that, if not prohibited under applicable law, you give reasonable prior written notice to Directly sufficient to permit Directly to inform the Applicable Customer so that the Applicable Customer can seek a protective order if it so chooses and you disclose only that information that is legally required to be disclosed. Upon the termination, cancellation or expiration of your Directly Account for any reason, you will destroy all Confidential Information, together with any copies that may be authorized herein. Nothing herein is intended to or shall grant to you any license or other right of any nature to the use of any Confidential Information except as permitted in this Section.  Nothing in this Agreement shall be deemed to restrict you from providing the same or similar services in connection with third-party platforms, regardless of whether any such third party directly or indirectly competes with Directly, except that you shall not use, in the provision of such services, any non-public confidential information pertaining to Directly’s business that is either designated and/or marked as confidential when disclosed to you or which you knew or reasonably should have known, under the circumstances, was considered confidential or proprietary by Directly even if not designated or marked as such.

8. DISCLAIMERS

The Platform is provided "as-is" and as available and we expressly disclaim any and all representations, warranties and conditions of any kind, whether express or implied, including those of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement.  We make no warranty that the Platform or any content therein: (a) will meet your requirements; (b) will be available on an uninterrupted, timely, secure, or error-free basis; or (c) will be accurate, reliable, complete, legal, or safe. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. Directly (and each User that completes a Request) does not provide any legal, financial or other advice. For specific advice on legal or financial matters, you should always seek the advice of a professional who is licensed and knowledgeable in that area, such as an attorney or accountant.

9. LIMITATION ON LIABILITY

In no event shall we (and our suppliers or Users that complete Requests) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from this agreement or your use of, or inability to use, the Platform, even if we have been advised of the possibility of such damages. Access to, and use of, the Platform are at your own discretion and risk.  

Notwithstanding anything to the contrary contained herein, our (and our suppliers') liability to you for any damages arising from or related to this Agreement, Platform (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of (a) fifty U.S. dollars ($50) or (b) amounts we have paid you in the prior 12 months (if any).

Each Applicable Customer’s and each User’s liability to you for any damages arising from or related to User Content (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of (a) fifty U.S. dollars ($50) or (b) amounts paid to the User that completed your Request in the prior 12 months (if any).

Some jurisdictions do not allow the limitation or exclusion of liability for incidental of consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.

10. INDEMNITY

10.1 By You. You agree to indemnify and hold us, our parents, subsidiaries, affiliates, any related companies, our suppliers, licensors and partners, our enterprise customers, and the officers, directors, employees, agents and representatives of each of them harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Platform, (ii) your User Content, or (iii) your violation of this Agreement. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

10.2 By Us. We will (1) defend, or at our option settle, any suit filed by a third party against you (a “Suit”) to the extent such Suit claims that your use of the Platform as permitted in this Agreement constitutes infringement or misappropriation by you of a third party’s intellectual property rights; and (2) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agreed to by us in a monetary settlement of such Suit. If any portion of the Platform becomes, or in our opinion is likely to become, the subject of a claim of infringement, we may, at our option: (a) procure for you the right to continue using the Platform; (b) replace the Platform with non-infringing software or Platform which do not materially impair the functionality of the Platform; (c) modify the Platform so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by you to us for the remainder of the term then in effect, and upon such termination, you will immediately cease all use of the Platform. Notwithstanding the foregoing, we shall have no obligation under this section or otherwise with respect to any infringement claim that would not have arisen but for (x) any use of the Platform not in accordance with this Agreement; (y) any use of the Platform in combination with other products, equipment, software or data not supplied by us; or (z) any modification of the Platform by any person other than us or our authorized agents. This subsection states your sole and exclusive remedy and the entire liability of Directly, or any of our officers, directors, employees, shareholders, contractors or representatives, for infringement claims and activity.

11. RELEASE 

You hereby release Directly, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and activity of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interaction with, User Content from, or conduct of, Directly customers, other Users or Third Party Partners. You hereby waive California Civil Code section 1542 in connection with the foregoing, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor." 

12. TERM AND TERMINATION

Subject to this Section, this Agreement will remain in full force and effect while you use the Platform. We may (a) suspend or limit your rights to use or access the Platform (including your Directly Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including (i) for any use of the Platform in violation of this Agreement; or (ii) if while completing Requests, you do not meet, or cease to meet, the guidelines set forth in an agreement with a Directly customer. Upon termination of this Agreement, your Directly Account and right to access and use the Platform will terminate immediately. You understand that any termination of your Directly Account may involve deletion of your User Content associated therewith from our live databases. We will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Directly Account or deletion of your User Content.  Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2.2-2.6, and 3-14.

13. COPYRIGHT POLICY

We respect the intellectual property of others and ask that Users of our Platform do the same. In connection with our Platform, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Platform who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Platform, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. 512(c)) must be provided to our designated Copyright Agent:

a. your physical or electronic signature;

b. identification of the copyrighted work(s) that you claim to have been infringed;

c. identification of the material on our Platform that you claim is infringing and that you request us to remove;

d. sufficient information to permit us to locate such material;

e. your address, telephone number, and e-mail address;

f. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and

g. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.

Our designated Copyright Agent is: Antony Brydon, Directly Software, Inc., 333 Bryant Street, LL120, San Francisco, CA, 94107.

14. GENERAL

14.1 Changes to Terms of Service. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Platform so it is visible when you visit and/or log-on to the Platform for the first time after the change is posted. Your continued use of the Platform after the changes have been posted shall constitute your acceptance of the changes. If you do not agree to the updated Agreement, you must cease your use of the Platform.

Any material changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Platform. These changes will be effective immediately for new users of our Platform. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.

14.2 DISPUTE RESOLUTION: ARBITRATION, CLASS ACTION WAIVER AND JURISDICTION

Please read this Arbitration Agreement carefully.  It is part of your contract with Directly (and each Applicable Customer, as a third-party beneficiary) and affects your rights.  It contains procedures for mandatory binding arbitration and a class action waiver.

a. Applicability of Arbitration Agreement.  All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of any product or service provided by Directly or any Applicable Customer that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement.  Unless otherwise agreed, all arbitration proceedings shall be held in English.  This Arbitration Agreement applies to you and Directly (and the Applicable Customer, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement.

b. Notice Requirement and Informal Dispute Resolution.  Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to Directly should be sent to: ATTN: Legal, Directly Software, Inc., 333 Bryant Street, LL120, San Francisco, CA, 94107.  A Notice to the Applicable Customer should be sent to that company’s principal offices.  After the Notice is received, you and Directly (or the Applicable Customer) may attempt to resolve the claim or dispute informally.  If you and Directly (or the Applicable Customer) do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

c. Arbitration Rules.  Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”).  This Agreement and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement (“Arbitration Rules”).  The arbitration shall be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise.  If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  If the arbitrator grants you an award that is greater than the last settlement offer that Directly or the Applicable Customer made to you prior to the initiation of arbitration, Directly (or the Applicable Customer) will pay you the greater of the award or 130% of the settlement offer.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

d. Additional Rules for Non-Appearance Based Arbitration.  If non-appearance based arbitration is elected pursuant to Section “(c)” above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

e. Time Limits.  If you or Directly (or the Applicable Customer) pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.

f. Authority of Arbitrator.  If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Directly (or the Applicable Customer), and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.  The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s rules, and the Agreement.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and Directly (or the Applicable Customer).

g. Waiver of Jury Trial.  The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between you and Directly (or the Applicable Customer) in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and Directly (or the Applicable Customer) waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.

h. Waiver of Class or Consolidated Actions.  All claims and disputes within the scope of this Arbitration Agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one User cannot be arbitrated or litigated jointly or consolidated with those of any other User. 

i. Confidentiality.  All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential.  The parties agree to maintain confidentiality unless otherwise required by law.  This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

j. Severability.  If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

k. Right to Waive.  Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

l. Survival of Agreement.  This Arbitration Agreement will survive the termination of your relationship with Directly (or the Applicable Customer).  

m. Small Claims Court.  Notwithstanding the foregoing, either you or Directly (or the Applicable Customer) may bring an individual action in small claims court.

n. Emergency Equitable Relief.  Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

o. Claims Not Subject to Arbitration.  Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

p. Courts.  In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco County, California, for such purpose.

14.3 Electronic communications. The communications between you and us use electronic means, whether you visit the Platform or send e-mails, or whether we post notices on the Platform or communicate with you via e-mail. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your statutory rights.

14.4 Entire Agreement. This Agreement (which includes any other rules posted on the Platform, excluding the privacy policy) constitutes the entire agreement between you and us regarding the use of the Platform. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to us is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. We may freely assign this Agreement. The terms of this Agreement shall be binding upon assignees.

14.5 Copyright/Trademark Information. Copyright (c) 2010-2017. All rights reserved. All trademarks, logos and service marks ("Marks") displayed on the Platform are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

14.6 System Outages and Changes to Platform. You acknowledge and agree there will be occasions when the Platform will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond our control, and that we will have no liability for your inability to access and/or use the Platform and/or Platform, or any portion thereof, during any of the foregoing events. We reserve the right to change, alter or vary the Platform, Platform and/or User Content offered on or through the Platform at any time without notice.

14.7 Third Party Beneficiary. Directly and you acknowledge and agree that each of the Applicable Customers is a third-party beneficiary of this Agreement, and that, upon you accepting the terms and conditions of this Agreement, such customers will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.

Revised: January 11, 2017