Terms of Service
Last Updated: December 7, 2022
These Terms of Service (the “Agreement”) set forth the terms and conditions under which individuals may use the Herewith platform for coordinating and facilitating management of in-home elder care or other non-medical care, which includes Herewith’s mobile software applications (including the Herewith Care/Pro app), websites, documentation and all other aspects of the complete Herewith ecosystem (the “Services”). Please read this Agreement before using the Services. You are entering into a legal contract with Herewith, Inc. (“Herewith”, “we” or “us”) and you hereby accept the terms of and agree to this Agreement and you represent and warrant that you have the right, authority and capacity to enter into this Agreement. If you object to anything in this Agreement, do not use the Services.
IMPORTANT NOTICE: THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION REQUIRING BINDING ARBITRATION OF DISPUTES AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. IF YOU DON’T WANT TO BE SUBJECT TO ARBITRATION, YOU CAN OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED AT THE END OF THE ARBITRATION PROVISION.
1 . Our Services
Herewith offers various Services to help its users find, coordinate, and monitor care for elders or individuals who require non-medical in-home care (users coordinating such care for themselves or on behalf of another individual, a “Care Recipient”). The Services we offer include, among others, enabling individuals who provide in-home care (each, a “Caregiver”) to create profiles and describe the types of care they offer, assisting Care Recipients in locating Caregivers , and otherwise facilitating relationships between a Care Recipient and one or more Caregivers to help Care Recipients receive high quality in-home care. Herewith’s Services also enable one or more Care Recipients and/or Caregivers to form groups to coordinate care (a “Care Team”). Herewith’s Services do not include any medical, diagnostic, treatment or clinical service, nor does Herewith engage in any conduct that requires a professional license.
Herewith reserves the right to modify or update the Services from time to time, or to suspend or discontinue our Services, or any part of our Services, at any time. Herewith will not be liable to you or to any third party should it exercise such rights. If any modifications or updates to the Services are made available to you by Herewith, the terms of this Agreement will govern such updates, unless the update is accompanied by a separate license in which case the terms of that license will apply.
2. Your Account
Whether you are a Care Recipient or a Caregiver, you will need to register and create an account to use certain of our Services (“Service Account”). You must be at least 18 years old and reside in the United States to create a Service Account and to use our Services. In addition, you agree that:
You will register your account in your own legal name, even if you are coordinating care for another individual or family member and will otherwise provide accurate, current and complete information in connection with your registration for a Service Account and use of the Services;
You are solely responsible for any and all use of your Service Account and all activities that occur under or in connection with your Service Account;
You will not allow another person to use our Services with your Service Account;
You will not access our Services under anyone else’s Service Account;
You will not use your Service Account for any commercial or promotional purpose;
You will not use any of our Services to create, receive, maintain or transmit any sensitive information or data, including “protected health information” (as defined in 45 CFR § 160.103 and other applicable law), or use our Services in any manner that would make Herewith your or any third party’s “business associate,” as defined under 45 CFR § 160.103 and other applicable law;
If Herewith disables your Service Account, you will not create another Service Account without our consent; and
You are responsible for maintaining the confidentiality and security of your Service Account credentials. Herewith is not responsible for any losses arising from the unauthorized use of your Service Account. You will notify us immediately if you find out that your Service Account is being used without your permission.
You may choose to link your Services Account with, and/or share data using your Services Account with, other users of the Services (such as a Care Recipient linking their Services Account to one or more Caregivers or other Care Recipients in a Care Team). You are solely responsible for any decisions to link your Services Account to other users and/or to share any information or communicate with such other users.
Herewith reserves the right, but is not obligated, to utilize third party service providers to verify on an ongoing basis that Service Account data submitted by you is accurate. You agree that Herewith may conduct any such verification and take such action in response as it deems appropriate in its sole discretion, including without limitation suspending and/or terminating your access to the Services.
4. Your Use of the Services
You may be able to interact with others through our Services, including by viewing content created by others or communicating with others. You are solely responsible for your interactions with other people through our Services. You agree that you will not, nor enable or permit others to:
Use our Services in a way that negatively affects others or our ability to provide the Services;
Use our Services to provide inaccurate information or for any illegal or unauthorized purpose;
Use any technology or other means not authorized by us to access our Services or to extract data;
Attempt to gain unauthorized access to any Services, including by trying to circumvent any restrictions;
Attempt to decipher, decompile, reverse engineer, disassemble, reproduce, modify, copy, distribute, publicly perform, publicly display or create derivative works of the Services or the source code of the software used to provide the Services (except as and only to the extent permitted by applicable law);
Use our Services in excess of any applicable technical or capacity limitations;
Use our Services to create a competitive product or service, or for benchmarking or vulnerability testing purposes, except as authorized by Herewith in writing;
Share data regarding another individual using the Services without their consent; or
Infringe upon or violate the rights of Herewith, other people in our community, or any third party.
In addition, without limiting the foregoing, your use of our Services and all interactions with members of the Herewith community, whether via the Services or otherwise, are subject to Herewith’s Community Guidelines (accessible here for Care Recipients and Caregivers), which are incorporated herein by reference.
Herewith may, but has no obligation to, monitor your (or another user’s) use of the Services to ensure that you are following the acceptable use requirements or the Community Guidelines (accessible here for Care Recipients and Caregivers).
5. Service Limitations and Risks
Using an online platform such as Herewith’s Services, which consist of primarily user-generated content, and which are made available for the purpose of connecting with other individuals who are not employed by Herewith, come with inherent risks. By using Herewith’s Services, you hereby agree to assume all such risks, including, without limitation, as follows:
By using our Services, you understand that Herewith does not endorse or actively review any content posted or sent by others within our Services, including content describing Caregivers or Care Recipients. Herewith will not be responsible for any liability incurred as the result of your interactions with others, any failure of an individual to comply with Herewith’s Community Guidelines (accessible here for Care Recipients and Caregivers), your use of content provided by other people, or your decision to share your information with others. Your use of any content provided by other people, any interactions with others, and any decision to share your information with others is your responsibility and at your own risk.
In addition, Herewith does not employ any Caregivers, does not refer or recommend Caregivers, and is not responsible for the conduct, whether online or offline, of any Caregiver, Care Recipient, or other user of the Services (whether in compliance with Herewith’s Community Guidelines [accessible here for Care Recipients and Caregivers] or otherwise). Herewith is not acting as an employment agency or third party employer. Herewith does not make any representations about the suitability, reliability, timeliness, or accuracy of the information or services provided by Caregivers or Care Recipients, or their integrity, responsibility or suitability to provide or receive care. Care Recipients and Caregivers are solely responsible for their decision(s) to interact with other Care Recipients or Caregivers (whether online or offline) , to form Care Teams, or to enter into any employment relationship. Caregivers are solely responsible for the care they provide and, if you are a Care Recipient, you hereby agree to assume all risks associated with any care provided by a Caregiver, including, without limitation, the risk of illness, injury or death.
While Herewith takes certain steps to assist Care Recipients in identifying appropriate Caregivers, such as requiring that Caregivers undergo limited Platform Eligibility Background Checks to be eligible to use Herewith’s platform (as described below), those steps are limited in scope. Care Recipients are solely responsible for interviewing, vetting, performing any background and reference checks they deem appropriate on, verifying information provided by, and selecting an appropriate Caregiver for themselves or on behalf of another. If you are a Care Recipient, you hereby agree you will not rely solely on any steps taken by Herewith in selecting a Caregiver.
Care Recipients are further responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish with a Caregiver. Herewith does not control, monitor, or supervise any services provided by Caregivers, including whether services are performed at all. While Herewith’s Services may include certain features for managing, tracking, or arranging payment for care, Herewith does not pay Caregivers or otherwise guarantee that Caregivers will be paid for care. Care Recipients and Caregivers are solely responsible for their own conduct, whether online through Herewith’s Services or offline and whether in compliance with Herewith’s Community Guidelines (accessible here for Care Recipients and Caregivers) or otherwise, and for making all employment and payment arrangements. Any disputes or other issues between Care Recipients and Caregivers must be resolved amongresolved with among such Care Recipients and Caregivers – Herewith will not be responsible for resolving any such issues. YOU HEREBY REPRESENT, UNDERSTAND, AND EXPRESSLY AGREE TO RELEASE, INDEMNIFY, DEFEND, AND HOLD HEREWITH AND HEREWITH’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENTS, SUBSIDIARIES, OTHER AFFILIATES, SUCCESSORS, ASSIGNEES, AGENTS, AND REPRESENTATIVES (“AFFILIATES”) HARMLESS FROM ANY CLAIM OR CONTROVERSY THAT MAY ARISE OUT OF THE ACTIONS OR INACTIONS OF, ANY INFORMATION PROVIDED BY, OR THE RELATIONSHIP BETWEEN, YOU AND ANY CAREGIVER, CARE RECIPIENT, OR OTHER USER(S) OF THE SERVICES. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, HEREWITH AND ITS AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, SUIT, OR CLAIM ARISING FROM THE FOREGOING.
6. No Professional Advice
All information, or other materials provided you as part of the Services is for your informational purposes only and is not intended to replace or substitute for any professional, financial, tax, medical, legal or other advice. Herewith expressly disclaims, and you hereby release Herewith from, any and all liability concerning any information offered or provided within or through the Services. You should consult with an appropriately trained specialist for all concerns that require professional, financial, tax, medical, legal or other advice.
7. Platform Eligibility Background Checks
Herewith requires individuals who have registered as Caregivers and wish to provide care to Care Recipients using Herewith’s Services to complete an initial background check from a third-party (currently, Checkr) and asks all Caregivers to consent to an annual eligibility background check thereafter (“Platform Eligibility Background Check”),. In agreeing to complete a Platform Eligibility Background Check, each Caregiver acknowledges and agrees that Checkr may contact you regarding such Platform Eligibility Background Check and that you may be required to agree to additional terms and conditions with Checkr in order to proceed. More information about the Platform Eligibility Background Check is available here.
Platform Eligibility Background Checks are designed by Herewith to verify whether Caregivers meet Herewith’s eligibility standards for participation on its platform, the scope of which shall be at Herewith’s discretion. Herewith reserves the right to change the scope of its Platform Eligibility Background Checks from time to time. Caregivers who do not agree to complete a Platform Eligibility Background Check will have only limited access to certain Herewith Services and will not be visible to Care Recipients through Herewith’s Services. Herewith reserves the right to terminate a Caregiver’s access to Herewith’s Services based on the information contained in the report from any Platform Eligibility Background Check, even if such information was subsequently removed or changed. If Herewith terminates your access to the Services on the basis of such report, we will notify you and provide you a copy of the report from the Platform Eligibility Background Check unless the consumer reporting agency has already provided you a copy or access to it. You agree that Herewith is under no obligation to reinstate your access to the Services even if the information that led to the termination is subsequently changed or corrected. Any inaccuracies must be addressed with the consumer reporting agency that issued it and not Herewith.
While Herewith requires a Platform Eligibility Background Check from all Caregivers whose accounts are enabled to interact with Care Recipients through the Services, Care Recipients should understand that such Platform Eligibility Background Checks are limited in scope, have inherent limitation, and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those Caregivers have provided. Platform Eligibility Background Checks are based on the information made available by the underlying report agencies, which may be limited in scope. In addition to legal and reporting system limitations of Platform Eligibility Background Checks, each Background Check is performed with the authorization of the person being checked, using information he or she provides, such as home address, social security number, date of birth, and name. If the subject of a Platform Eligibility Background Check provides incorrect information, it might be run with inaccurate identifying data, which can impact its validity. Finally, records are not always reported accurately or promptly, and human and electronic error can result in inaccurate or incomplete reporting. Consequently, even the most comprehensive background check may not disclose the existence of all negative information. More information about the potential limitations of background checks is available here.
Each Care Recipient may have different standards or levels of comfort with respect to a Caregiver’s history or insurance coverage than Herewith has for eligibility to participate on its Services. In addition to other vetting, Care Recipients have the right to request that a Caregiver consent to additional background checks, which will be handled directly between such Care Recipients and Caregivers. However, please note that any such additional background checks will be regulated by the federal Fair Credit Reporting Act ("FCRA"), as well as applicable state and local laws, and the reports will be considered "consumer reports" under FCRA. Care Recipients should familiarize themselves with their obligations regarding any such consumer reports under the FCRA (and any applicable state and/or local laws) prior to requesting an additional background check. Each Care Recipient hereby acknowledges and agrees that he or she will be solely responsible for compliance with all applicable laws in relation to any additional background checks he or she requests.
Each Care Recipient hereby acknowledges and agrees that (i) Herewith does not have control over or assume any responsibility for the quality, accuracy, or reliability of Platform Eligibility Background Checks, and that (ii) he or she will not rely solely on Herewith’s Platform Eligibility Background Check in selecting a Caregiver. Each Care Recipient hereby further agrees to release, indemnify and hold harmless Herewith from any loss, liability, injury, death, damage, or costs that may result from reliance on any Platform Eligibility Background Checks, regardless of the cause, including, without limitation, due to the inaccuracy or incompleteness of any information in connection therewith.
8. Payroll Services, Insurance, and Fees
Access to Herewith’s mobile applications and basic Services is free for both Caregivers and Care Recipients. If a Care Recipient elects to use our Services to facilitate hiring and managing employment of one or more Caregivers, including, without limitation, the ability to track and manage timesheets, and enroll with Herewith’s partner, HomeWork Solutions, for payroll and tax compliance services (the “Enhanced Services”), then such Care Recipient agrees to pay Herewith its administrative fees as then in effect. Caregivers will receive access to the relevant portions of Herewith’s Enhanced Services for the duration in which they are providing care for one or more Care Recipients via Herewith’s Services, without charge. For more information regarding Herewith’s current administrative fees, please visit: Herewith’s Frequently Asked Questions
Caregivers and Care Recipients using Herewith’s Enhanced Services will also be eligible to receive certain workers’ compensation or professional liability insurance coverage, included free with Herewith’s enhanced Services, via Herewith’s insurance broking partner, Advanced Benefit Solutions. For more information regarding insurance, please visit Herewith’s Frequently Asked Questions.
Care Recipient hereby acknowledges and agrees that they may be invoiced for Herewith’s administrative fees by Herewith’s payroll and employment tax compliance services partner, HomeWork Solutions. Each Care Recipient will also be required to enter into an agreement with HomeWork Solutions in order to be able to use HomeWork Solutions’ payroll and employment tax compliance services. Such agreement shall be concluded solely between HomeWork Solutions and the applicable Care Recipient.
If applicable, as part of the payroll services it provides, HomeWork Solutions will create invoices for such Care Recipient, at the end of each payroll period, reflecting the wages owed to each Caregiver who provided care during such period, applicable employment taxes, and the Herewith administrative fees. Each invoice will be made available to the applicable Care Recipient for review, as further described in Herewith’s Frequently Asked Questions. The Care Recipient will pay each invoice as described in the applicable agreement between such Care Recipient and HomeWork Solutions.
Each Care Recipient is solely responsible for paying any and all wages owed to any Caregiver, including, without limitation, paying the invoices received from HomeWork Solutions. Herewith is not responsible for and expressly disclaims all liability related to paying wages owed to a Caregiver and all liability arising from any such payments or failure to make such payments (such as any penalties, fines, overdraft charges, insufficient funds charges, interest charges, or finance charges).
Without limiting any other provision herein, Herewith reserves the right to modify its Enhanced Services, administrative fees, or billing methods upon notice.
9. Pre-Release Materials and Confidentiality
You may have the opportunity to receive certain pre-release Herewith features, functionality, services or other materials, at Herewith’s option. Your use of any pre-release materials are subject to the confidentiality obligations below and may be conditioned on your acceptance of additional terms that we provide you. In the event of any conflict between the terms provided for any pre-release materials and this Agreement, the other terms will govern your use of the pre-release materials.
You acknowledge that you may receive non-public information relating to Herewith, its business, products, services, and related intellectual property (collectively, “Confidential Information”) in connection with your use of any pre-release materials. You agree to keep the Confidential Information confidential, not to publish or disclose any Confidential Information to a third party, and only use such information to the extent necessary to use the Services (including any such pre-release materials you are provided, under this Agreement. You will use at least a reasonable standard of care in maintaining the confidentiality of the Confidential Information. Your obligations with respect to Confidential Information will continue even after you have stopped using the Services and/or pre-release materials. You agree to destroy or return any Confidential Information at Herewith’s request. You also acknowledge that if you breach your confidentiality obligations, it will cause immediate and irreparable injury to Herewith and Herewith will have the right to seek and obtain injunctive relief, and to pursue any other remedies available at law or in equity, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
10. Your Content
Our Services may include features and areas where you can create, upload, store, and/or share data, notes, or other content with us or others (“Your Content”). Herewith does not have any ownership rights in Your Content, but you hereby grant Herewith a worldwide, irrevocable (except as set forth below), perpetual, non-exclusive, transferable, royalty-free and fully sublicensable right and license to use, copy, display, store, adapt, and distribute Your Content so that Herewith can operate, deliver, and improve our Services. The license granted to Herewith to display or distribute Your Content is revocable by you if and when you choose to independently remove or delete any of Your Content uploaded to features of our Services (e.g., notes functionality that we may provide), to the extent that such Services provide the functionality to do so.
You are solely responsible for Your Content. You agree that any Content that you post, upload or transmit to or through the Services is solely for the purpose of coordinating or managing care, or for finding or sharing information relating to care. Herewith has no obligation to review, approve, monitor, endorse, reject, refuse to post, screen, edit, move or remove any of Your Content or similar content created by other members of our community from our Services, but may choose to do so at any time, including if Your Content violates this Agreement. In addition, Herewith may also decide to suspend or remove your Services Account.
You represent and warrant that you either control or own Your Content, or you have obtained all rights necessary to share Your Content in compliance with this Agreement and Your Content, and our use of Your Content as permitted under this Agreement, will not infringe, misappropriate or violate any third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable laws, rules, or regulations.
You may choose to provide Herewith with ideas, feedback, or suggestions for us about our existing products and services including the Services (“Feedback”). If you provide Herewith with Feedback, you hereby grant Herewith a non-exclusive, perpetual and irrevocable license to use and exploit such Feedback for any purpose, including to incorporate such Feedback within its products and services, without providing payment or any other consideration to you. Herewith has no confidentiality or other obligations with respect to your Feedback.
12. Third-Party Services, Materials, and Web Sites
We may make available through our Services certain additional services, features, or content provided by third parties (collectively, “Third-Party Materials”), including, without limitation, the payroll and tax compliance services provided by HomeWork Solutions and any workers’ compensation or professional liability insurance, as applicable, procured on your behalf by our insurance broking partner, Advanced Benefit Solutions. Your use of Third-Party Materials made available through the Services may be subject to additional terms and conditions of the applicable third party. Herewith has no responsibility or liability with respect to your access to, or use of, the Third-Party Materials. Without limiting the foregoing, you hereby acknowledge and agree that Herewith has no responsibility for, or liability in connection with, the payroll and tax compliance services provided by HomeWork Solutions, any insurance policies procured on your behalf by Advanced Benefit Solutions, or any other Third-Party Materials.
In addition, our Services may also contain links or provide access to other web sites or other online services operated by third parties. Those third-party services are not under our control, and we are not responsible for the content on any third-party service or any link contained in a third-party service. We provide these links only as a convenience and we don’t have any obligation to review, approve, monitor, endorse, move, remove, warrant, or make any representations with respect to third-party services.
We may immediately terminate this Agreement and consequently your access to our Services at any time if you violate this Agreement (including our Community Guidelines [accessible here for Care Recipients and Caregivers]Community Guidelines), create possible legal liability, or if your use of the Services poses a health or safety risk. If we terminate this Agreement: (i) your Service Account will be deactivated and Your Content may be inaccessible, deleted, or deactivated, and (ii) your rights and obligations under this Agreement will terminate (other than those provisions that survive as described below).
You may also remove your Service Account at any time, which will terminate this Agreement (other than those provisions that survive as described below).
We will not have any liability for any termination of this Agreement for any of the reasons described above.
14. Intellectual Property
The software, code, proprietary methods and systems used to provide the Services (“Herewith Technology”) is owned by Herewith and/or our licensors under United States and international intellectual property laws. You must abide by all legal notices, information, or restrictions contained in, or attached to, any Herewith Technology. Nothing in this Agreement grants you any rights to receive Herewith Technology or to obtain access to Herewith Technology except as generally and ordinarily permitted through the Services, in accordance with this Agreement. Furthermore, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to Herewith Technology. The names, logos, and other business identifiers displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of Herewith. You are not authorized to use any Marks. Ownership of all such Marks and the goodwill associated with those Marks remain with Herewith.
You will defend, hold harmless, and indemnify Herewith, its affiliates and its and their directors, officers, employees, agents, successors and assigns, from and against any third-party allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) (collectively, “Claims”) arising from or related to your breach of any term of this Agreement.
16. Warranty Disclaimer and Limits on Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE PROVIDING OUR SERVICES ON AN “AS IS” BASIS FOR USE AT YOUR OWN RISK. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INTERFERENCE, SYSTEM INTEGRATION, LOSS OR CORRUPTION OF DATA, OR ACCURACY. WE DO NOT WARRANT THAT YOUR USE OF OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES AND DISCLAIM ALL WARRANTIES OR LIABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ON BEHALF OF ANY OF OUR AFFILIATES, AGENTS, SUPPLIERS, DISTRIBUTORS, PARTNERS, OR LICENSORS (“HEREWITH PARTIES”). THE FEATURES AND FUNCTIONALITY OF OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES) MAY CHANGE AT ANY TIME AND HEREWITH DISCLAIMS ANY RESPONSIBILITY FOR SUCH CHANGES OR ANY STATEMENTS HEREWITH MAKES OR HAS MADE ABOUT THE EXISTENCE OF SUCH FEATURES OR FUNCTIONALITY. OUR SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE DATA OR INFORMATION PROVIDED BY OUR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
IN NO EVENT WILL HEREWITH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS OR CONTENT AVAILABLE THROUGH OUR SERVICES), WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEREWITH’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR OUR SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE GREATER OF THE PRICE YOU PAID FOR THE SERVICES GIVING RISE TO THE APPLICABLE CLAIM OR TWENTY-FIVE DOLLARS ($25).
THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEREWITH AND YOU. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF HEREWITH FOR DEATH OR PERSONAL INJURY CAUSED BY HEREWITH’S GROSS NEGLIGENCE IN CONNECTION WITH THE SERVICES; OR FOR ANY DAMAGES CAUSED BY HEREWITH’S FRAUD OR FRAUDULENT MISREPRESENTATION, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.
17. Modifications to this Agreement
Herewith reserves the right to change and make additions to this Agreement at any time. If we do, we’ll use reasonable efforts to notify you, for example, by sending a notification to your Service Account and/or giving notice through our Services. Unless we say otherwise in our notice, the revised Agreement will be effective immediately and your continued use of your Service Account after we provide notice of the changes will confirm your acceptance of the revised Agreement. We encourage you to review the Agreement from time to time to ensure you understand the terms and conditions that apply to your use of the Services.
18. Governing Law and Venue
This Agreement will be governed by the laws of the State of California, without reference to rules governing choice of laws or the U.N. Convention on Contracts for the International Sale of Goods. If either of us has a claim against the other, most claims or disputes will be resolved by binding arbitration, as described in the Arbitration Provision below. However, to the extent this Agreement permits litigation in court, you hereby irrevocably consent to and waive any objection to the exclusive jurisdiction and venue of the federal and state courts located at Santa Clara County, California with respect to any claims, suits or proceedings arising out of or in connection with this Agreement or the Services.
You will comply with all applicable laws and regulations and will not, without prior government authorization, export, re-export, or transfer Herewith products, services (including the Services) or technology, either directly or indirectly, in violation of such laws and regulations. You represent and warrant that you (a) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, or that has been designated by the U.S. Government as a “terrorist supporting” country; (b) have not been identified as a “Specially Designated National” by the Office of Foreign Assets Control; (c) have not been placed on the U.S. Commerce Department’s Denied Persons List;” and (d) will not use our Services if any applicable laws in your country prohibit you from doing so in accordance with this Agreement.
You hereby consent to receive communications from us about your Service Account in an electronic form, whether via email or posting on our Services or other reasonable means; and agree that all terms and conditions, agreements, notices, disclosures, and other communications that we send to you electronically satisfy any legal requirement that such communications must be in writing. If you have any questions about this, please reach out to firstname.lastname@example.org.
21. General Provisions
This Agreement is personal to you, and you may not assign or delegate your right and/or duties under this Agreement to anyone else. Any attempted assignment or delegation is void. You acknowledge that we have the right to seek an injunction, if necessary, to stop or prevent your violation of this Agreement. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is in writing, signed by us. No waiver of any breach or default in one instance will constitute a waiver of any subsequent breach or default. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement constitutes the entire agreement between us with regard to your access to and use of the Services.
Following any termination of this Agreement, Herewith has the right to continue to use Your Content and the Feedback you have provided to us in the ways permitted by this Agreement (subject to your rights above), and the following provisions will also continue to apply: Suspension/Termination, Intellectual Property, Warranty Disclaimer and Limits on Liability, Governing Law and Venue, Compliance, General Provisions, Survival, and the Arbitration Provision.
23. Agreement to Arbitrate and Waiver of Class Action
Please carefully read the following agreement to arbitrate and waiver of class action (“Arbitration Provision”). It requires you to arbitrate disputes with Herewith and limits the manner in which you can seek relief from us. It prevents you from bringing any class, collective, or representative action against Herewith, it prevents you from participating in or recovering any relief in any class, collective, or representative action anyone else might bring against Herewith, and it prevents you from suing Herewith in court or from having a jury trial in most cases. You can opt out of this Arbitration Provision by following the instructions below.
Applicability of Arbitration Provision
Waiver of Class Relief
WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT YOU AND HEREWITH WILL NOT COMMENCE AGAINST THE OTHER, OR PARTICIPATE IN, A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. YOU AND HEREWITH ARE EACH WAIVING RESPECTIVE RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Arbitration Rules and Forum
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Provision. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to email@example.com. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available here. JAMS’s rules are also available here or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will jointly select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees (“Arbitration Fees”) and cannot obtain a waiver from JAMS, Herewith will pay them for you. Herewith will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any final decision made by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator
The arbitrator, and not any federal, state or local court or agency, will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Agreement, including this Arbitration Provision including, but not limited to, any claim that all or any part of this Agreement or this Arbitration Provision are void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Herewith. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Provision). The arbitrator will 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 us.
Waiver of Jury Trial
YOU AND HEREWITH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Herewith are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Provision, except as specified in the Applicability of Arbitration Provision section above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Consolidated Actions
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION PROVISION MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. In the event that this subparagraph is deemed invalid or unenforceable, neither you nor Herewith are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth in the Governing Law and Venue section above.
Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Provision by sending written notice of your decision to opt out to the following address: Herewith, Inc., Attn: Arbitration, 225 Bush Street, Suite 1850, San Francisco, CA 94104, and/or firstname.lastname@example.org within 30 days after first becoming subject to this Arbitration Provision. Your notice must include your name and address, your Service Account username, and an unequivocal statement that you want to opt out of this Arbitration Provision. If you opt out of this Arbitration Provision, all other provisions of this Agreement will continue to apply to you. Opting out of this Arbitration Provision has no effect on your agreement to the rest of this Agreement or your agreement to any other arbitration agreements that you may currently have, or may enter in the future, with us. If you opt out of this Arbitration Provision, Herewith will likewise not be bound by this Arbitration Provision.
If any part or parts of this Arbitration Provision are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Provision will continue in full force and effect.
Survival of Provision
This Arbitration Provision will survive the termination of your relationship with Herewith.
Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Provision, such change will not apply to any individual claims of which you had already provided notice to Herewith.