Vixster Terms Of Use


These Terms of Use (the “Terms”) constitute a legally binding agreement and govern your use of the Vixster, LLC (the “Company,” “we,” “our” or “us”) service available through our website located at vixster.com (the “Website”), and mobile software application (the “Application”) that facilitate the scheduling, management and performance of waste removal and recycling services (collectively, the functionality provided by the Website and Application referred to as the “Service”).

 

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.

 

1. SERVICE

The Company provides a marketplace functioning through the Website and App where persons seeking waste removal and recycling services (“Users”) can be matched with persons willing and able to provide waste removal and recycling services (“Drivers”) (when referencing them collectively, the “User” and the “Driver” are referred to as “you” or “your”). The Service is a communications platform which enables the connection between Users and Drivers. Users are individuals and/or businesses seeking to obtain Services from Drivers and are therefore clients of Drivers, and Drivers are individuals and/or businesses seeking to perform Services for Users. The Company is not responsible for the performance of Drivers, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Services, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Driver.

 

2. DRIVER SERVICES

In the performance of the Services, Driver agrees to abide by the Driver Guidelines, described (www.vixster.com). In connection with Driver's provision of the Services, Driver agrees to utilize a web accessible mobile device owned by Driver which meets the then current Company specifications for mobile devices ("Driver's Mobile Device"). If there is any conflict between the provisions of these Terms and Driver Guidelines with respect to the Services to be performed by Driver, the provisions of Driver Guidelines shall control. Driver shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of Services; and except for the Application, Driver shall provide all necessary equipment, tools and other materials, at Driver's own expense, necessary to perform the Services.

 

3. DRIVER MOBILE DEVICE

Driver is responsible for: (i) the acquisition, cost and maintenance of Driver’s Mobile Device as well as any necessary wireless carrier data plan; and (ii) Company shall make available the Application for installation on Driver’s Mobile Device. Company hereby grants Driver a personal, non-exclusive, non-transferable license to install and use the Application on Driver’s Mobile Device solely for the purpose of providing Services. Driver agrees to not provide, distribute or share, or enable the provision, distribution or sharing of, the Application (or any data associated therewith) with any third party. The foregoing license grant shall immediately terminate and Driver will delete and fully remove the Application from the Driver’s Mobile Device in the event that Driver cease to provide Services using Driver’s Mobile Device. Driver agree that: (i) use of the Application on the Driver’s Mobile Device requires an active data plan with a wireless carrier associated with Driver’s Mobile Device, which data plan will be provided by Driver at Driver’s own expense; (ii) use of the Application on Driver’s Mobile Device may consume very large amounts of data through the data plan; and (iii) Company shall not be responsible or liable for any fees, costs or overages charges associated with any Driver data plan. Driver further acknowledges and agrees that Driver’s geo-location information must be provided to the Company via Driver’s Mobile Device in order to provide the Services. Driver acknowledges and agrees that: (a) Driver’s geo-location information may be obtained by the Company while Application is running; and (b) the approximate location of Driver’s Vehicle will be displayed to the User before and during the provision of the Services to such User. In addition, Company may monitor, track and share with third parties Driver’s geo-location information obtained by the Application and Driver’s Mobile Device.

 

4. DRIVER-COMPANY RELATIONSHIP

Driver shall personally perform the Services described in these Terms and as an independent contractor to the Company, and no joint venture, partnership, agency, or employment relationship is created by these Terms. Company does not, and shall not be deemed to, direct or control Driver generally or in Driver’s performance under these Terms specifically, including in connection with Driver’s provision of the Services, Driver’s acts or omissions, or Driver’s operation and maintenance of Driver’s Vehicle. Driver retains the sole right to determine when, where, and for how long Driver will utilize the Application or provide Services. Driver retains the option to accept or to decline or ignore a User’s request for Services or to cancel an accepted request for Services, subject to Company’s then-current cancellation policies. With the exception of any signage required by local law or permit/license requirements, Company shall have no right to require Driver to: (a) display Company’s names, logos or colors on Driver’s Vehicle(s); or (b) wear a uniform or any other clothing displaying Company’s names, logos or colors. Driver acknowledges and agrees that Driver has complete discretion to provide services or otherwise engage in other business or employment activities. Driver further understands and acknowledges that Driver retains the complete right to; (i) use other software application services in addition to the Application; and (ii) engage in any other occupation or business. Company retains the right to deactivate or otherwise restrict Driver from accessing or using the Application in the event of a violation or alleged violation of these Terms, Driver’s disparagement of Company, Driver’s act or omission that causes harm to Company’s brand, reputation or business as determined by Company in its sole discretion. Driver shall not be considered an employee of the Company, and shall not be entitled to participate in any plans, arrangements or distributions of the Company pertaining to any benefits provided to regular employees of the Company. Nothing in these Terms is intended to convey any rights or benefits upon any third party. Driver shall have no authority to negotiate or enter into contracts on behalf of the Company, incur debts or liabilities on behalf of the Company, or conduct any other actions on behalf of the Company without the prior written approval of an authorized representative of the Company.

 

5. COMPANY-USER RELATIONSHIP

Company is not responsible or liable for the actions or inactions of a User in relation to the Driver, Driver’s activities or Driver’s Vehicle. Driver shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from Driver’s provision of Services. Driver acknowledges and agrees that Driver is solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws – Drivers are required to obtain and maintain automobile liability insurance at his or her expense with limits that equal to or go above state required minimums. Vixster must be named as an Additional Insured on the policy) regarding any acts or omissions of a User or third party. Driver acknowledges and agrees that Company may release Driver’s contact and/or insurance information to a User upon such User’s reasonable request.

 

6. DRIVER VEHICLE

Driver acknowledges and agrees that at all times, Driver shall be at least 18 years of age and hold and maintain: (i) a valid driver's license with the appropriate level of certification to operate Driver’s Vehicle, and (ii) all licenses, permits, approvals and authority applicable to Driver that are necessary to operate Driver’s Vehicle and provide the Services within the State which the Services are performed. Driver acknowledges and agrees that Driver may be subject to certain background and driving record checks from time to time in order to qualify to provide, and remain eligible to provide Services. Driver acknowledges and agrees that Company reserves the right, at any time in Company’s sole discretion, to deactivate or otherwise restrict Driver from accessing or using the Application if Driver fails to meet the requirements set forth in these Terms. Driver acknowledges and agrees that Driver’s Vehicle shall at all times be: (a) properly registered and licensed to operate within the State in which the Services are to be performed; (b) owned or leased by Driver; (c) suitable for performing the Services contemplated by these Terms; and (d) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements in the applicable State within which the Services are performed. Driver acknowledges that it is required to maintain personal automobile liability insurance at the mandatory State liability limits for the State within which Driver will be performing Services. Driver shall also be solely responsible for maintaining at Driver’s sole expense, such comprehensive and auto collision coverage as Driver may deem necessary to cover Driver’s Vehicle. Company is not responsible for, and Driver assumes all risk of, any loss, theft, vandalism or property damage to Driver’s Vehicle and contents while being used in connection with the Services. Driver’s Motor Vehicle Report (MVR) may be checked periodically to verify Driver’s driving eligibility, and this serves as Company’s authorization to do so. Driver acknowledges that it must have Driver’s Vehicle inspected by a licensed vehicle inspection station if required within the State which the Services are performed. To ensure compliance with all requirements in this Section, Driver must provide Company with written copies of all such licenses, permits, inspections, proof of insurance approvals, authority, registrations and certifications prior to Driver’s provision of any Services. Thereafter, Driver must submit to Company written evidence of all such licenses, permits, inspections, proof of insurance, approvals, authority, registrations and certifications as they are renewed. Company shall, upon request, be entitled to review such licenses, permits, inspections, proof of insurance, approvals, authority, registrations and certifications from time to time, and Driver’s failure to provide or maintain any of the foregoing shall constitute a material breach of these Terms. Company reserves the right to independently verify Driver’s documentation from time to time in any way Company deems appropriate in its reasonable discretion.

 

7. USER PAYMENT

User agrees that any amounts charged following a Service (a “Charge”) are due and payable immediately upon completion of the Service. Charges include waste removal fees, recycling fees and other applicable fees and taxes as set forth on the fees page of our Website (www.vixster.com), plus any tips to the Driver that User elect to pay. The Company has the authority and reserves the right to determine and modify pricing by posting the changes to our Website. Charges may vary based on the type of service User requests. User agrees to allow Vixster to use the Users address, name and yearly 1 ton allotment for any waste or recycling disposal related to the User whom requested the service. User is responsible for reviewing the applicable Charges and shall be responsible for all Charges incurred under the User account regardless of User’s awareness of such Charges or the amounts thereof.

 

8. DRIVER PAYMENT

Driver will receive applicable waste removal fees, recycling fees (net of the Company’s Administrative Fee, as discussed below) and any tips provided by Users to Driver for the Services Driver provides within fourteen (14) business days after the Company receives payment from Users for the applicable Service. The Company may withhold from any payment, including the final payment, any amount in dispute, including amounts returned to Users. In addition, the Company may withhold payment in any payment period if Driver has failed to provide the documents or information set forth herein, until such time as Driver has submitted such documents or information to the Company. The Company will process all payments due to Driver through its third party payments processor. Driver acknowledges and agrees that such amounts shall not include any interest and will be net of any amounts that we are required to withhold by law. The Company utilizes Stripe to manage payments and by agreeing to these Terms, also agree to Stripe's Terms of Service (https://stripe.com/us/terms). If Driver elects to receive payments through Stripe, Driver acknowledges that payments made to Driver’s debit card are provided through (Name of Bank), upon receiving instructions from the Company’s payment processor Stripe following Driver’s approval. Driver may be charged a fee for this service. In exchange for permitting Driver to offer Driver’s Services through the Website and/or the Application, Driver agrees to pay the Company a fee based on each transaction in which Driver provides Services (the “Administrative Fee”). The Company reserves the right to change the Administrative Fee at any time and the Company will provide Driver with notice in the event of such change. The current Driver fees are as set forth on the Driver fees page of our Website (www.vixster.com).

 

9. PROMOTIONAL CODES

Vixster in its sole discretion, may make available promotions with different features to any Driver, User or prospective Driver or User. These promotions, unless made to you, shall have no bearing whatsoever on your Terms or relationship with Vixster.

 

10. DRIVER EXPENSES

Driver acknowledges that he is acting solely as an independent contractor, and as such he agrees that he shall pay all expenses incurred by him in carrying out his duties and obligations pursuant to these Terms including, but not limited to, expenses relating to insurance, vehicles, fuel and maintenance, supplies, and all taxes.

 

11. CONSENT TO COMMUNICATIONS

By becoming a User or Driver, you expressly consent and agree to accept and receive communications from us, including via e-mail, text message, calls to the cellular telephone number you provided to us. By consenting to being contacted by Vixster, you understand and agree that you may receive communications generated by automatic telephone dialing systems and/or Drivers, including but not limited to: operational communications concerning your account or use of the Services, updates concerning new and existing features on the Services, and communications concerning promotions run by us or our third party partners. If you wish to opt-out of promotional emails, text messages, or other communications, you may opt-out by following the unsubscribe options provided to you. Standard text messaging charges applied by your wireless carrier will apply to text messages we send. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the Services. You may opt-out of receiving promotional or marketing texts or calls from Vixster at any time, however you acknowledge that opting out of receiving all texts may impact your use of the Vixster Platform or the Services.

 

12. TAXES

These Terms constitute a contract for the provision of Services and not a contract for employment and, accordingly, Driver will be solely responsible for and will indemnify Company for and in respect of any state, local or federal taxes or fees, including withholding under FICA, FUTA, and state unemployment taxes together with any other liability, deduction, contribution, assessment or claim arising from or made in connection with the payment by Company under these Terms since Driver is not and will not be treated under these Terms as an employee of the Company for tax or any other purposes. The Consultant will further indemnify Company against all reasonable costs and expenses and any penalty, fine or interest incurred or payable by Company in connection with or in consequence of such liability, deduction, contribution, assessment or claim. Company may, at its option, satisfy such indemnity (in whole or in part) by way of deduction from the fees and/or expenses payable by Company to Driver hereunder. Driver acknowledges that if Driver is injured while performing work under these Terms, Driver will not be covered for such injury under Company’s insurance policies, including under any Worker’s Compensation coverage provided for Company’s employees and further acknowledges that Driver is solely responsible for providing Worker’s Compensation insurance for Driver and Driver’s employees.

 

13. TERM

The term of these Terms shall commence the on the date you acknowledge these Terms and shall continue until terminated by either Party as set forth in Section 14 below.

 

14. TERMINATION

These Terms shall terminate with or without cause upon one (1) day written notice of the intent to terminate these Terms given by either Party hereto to the other Party by any form of delivery whereby confirmation of delivery can be obtained;

 

15. EFFECT OF TERMINATION

Within three days of termination as provided above, Driver shall return and account for all funds, supplies, materials or products of the Company and deliver the same to the Company at its offices or at such place as the Company shall instruct Driver under the Notice provisions of these Terms. In the event the Company terminates these Terms as a result, in whole or in part, of Driver’s breach hereof, and the Company incurs costs, fees or expenses in completing particular Services which are greater than those which the Company budgeted to incur had Driver properly, timely and completely performed such Services, then in addition to all other rights and remedies available to the Company, either at law or in equity, Driver agrees to remit payment in full for such additional expenses to the Company immediately upon receiving an invoice from the Company identifying such additional expenses. In this event, such remedy shall not be deemed the sole or exclusive remedy available to the Company.

 

16. PRIVACY POLICY

Our collection and use of personal information in connection with the Website, Application and Services is as provided in the Company’s Privacy Policy located at www.vixster.com/privacy.

 

17. INDEMNIFICATION

You agree to indemnify the Company and its members, managers, shareholders, directors, officers, employees and agents and hold them harmless from and against all claims, liabilities, damages, losses, costs and expenses, together with all costs and expenses incurred by them in defending any suit or action which may be brought against any of them, including reasonable attorney’s fees and expenses, incurred or suffered by any of them and arising, in whole or in part, out of any actual or alleged act or omission of You in connection with these Terms and any breach of any agreement or covenant of You or any inaccurate or erroneous warranty or representation of You contained herein. In addition, You agree to assume all legal fees and expenses incurred in the defense against such claims and in enforcing these Terms and to reimburse the Company for such fees and expenses incurred by the Company.

 

18. REMEDIES

You covenant and agree that, if You shall violate any of the covenants or agreements under these Terms, the Company shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Driver directly or indirectly has realized and may realize as a result of, growing out of or in connection with any such violation. Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which the Company is or may be entitled at law, in equity or under these Terms. You agree that the Company shall not be required to post any bond with respect to such injunctive relief and You agree that You shall not object to the granting of injunctive relief or to the waiver of bond.

 

19. ENVIRONMENTAL REPRESENTATIONS & WARRANTIES

User warrants that: (i) you are providing only Waste Materials for collection, (ii) you are not providing Prohibited Materials for collection; and (iii) you are and will remain in compliance with all Environmental Laws. As used in these Terms, the following terms are defined herein. “Environmental Law” means all applicable federal, state and local laws and regulations and common law concerning solid or hazardous waste, toxic or hazardous substances or materials, pollution, or protection of human health and safety or the environment, including without limitation the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), and the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 6901 et seq.). “Medical Waste” means any material or waste that is or potentially may be infectious, biohazardous, biomedical, or any other “medical” or similar waste regulated under any Environmental Laws, including without limitation: medical wastes requiring treatment prior to disposal, “red bag” medical waste, blood-soaked bandages, culture dishes and other glassware, discarded surgical gloves, discarded surgical instruments, discarded needles (e.g., medical sharps), cultures, stocks, swabs used to inoculate cultures, removed body organs, and discarded lancets. Medical Waste is a Prohibited Material under these Terms. “Prohibited Material” means: (a) any Special Waste not expressly approved in writing by Vixster, and (b) any materials or substances that are hazardous, toxic, explosive, flammable, radioactive, or infectious, including without limitation, (i) any material considered a “hazardous waste” under the Resource Conservation And Recovery Act (42 U.S.C. § 6901 et seq.), (ii) PCBs, (iii) asbestos, (iv) diesel fuel, gasoline, or other petroleum products or hydrocarbons, (v) Medical Waste, medications or pharmaceuticals, (vi) any other material or substance that is hazardous or toxic, and which would form the basis of any claim, under any Environmental Laws, and (vii) any waste materials contaminated by, mixed with or containing Prohibited Materials. “Recyclable Material” means approved materials that can be recycled or recovered, and are not intended for disposal, provided further, however, such term specifically excludes Prohibited Materials. “Special Waste” means used tires, construction and demolition (C&D) materials, and materials recognized as “universal waste” or as “special waste” under Environmental Laws. “Waste Material” means non-hazardous solid waste and Recyclable Materials, provided further, however, such term specifically excludes Prohibited Materials.

 

20. CONFIDENTIALITY

You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.

 

21. NON-INTERFERENCE

Driver covenants and agrees that he shall not, at any time, without the prior written consent of the Company, which may be withheld in the Company’s sole discretion, directly or indirectly induce or attempt to induce any employee, agent, customer (including prospective customers within the market region of the Company), vendor, supplier or other representative or associate of the Company to terminate its relationship with the Company, or in any way directly or indirectly interfere with such a relationship or any relationship between the Company and any of its past, present or prospective employees, agents, customers, vendors, suppliers or other representatives. Driver acknowledges that the restrictions on his activities under these Terms were negotiated at arm’s length and are required for the fair and reasonable protection of the Company. Driver further acknowledges and agrees that a breach or threatened breach of such obligations and agreements will result in immediate, irreparable and continuing damage to the Company and its business for which there will be no adequate remedy at law, and further agrees that in the event of any breach or threatened breach of said obligations and agreements, the Company, and its successors and assigns, shall be entitled to temporary and permanent injunctive relief and to such other further legal and equitable relief, including damages, as is proper in the circumstance which may be available to it to prevent or to restrain any such breach by Driver, or by Driver’s partners, agents, representatives, servants, companies, Drivers and any and all persons directly or indirectly acting for or with him.

 

22. LIMITED LIABILITY

With regard to the Services, the Company and its members, managers, shareholders, directors, officers, employees and agents shall not be liable to anyone for any right, claim, liability, cause of action, action, inaction, obligation or otherwise due to or arising out of the relationship between the Company and Driver, for any acts or omissions in Driver’s performance of the Services or on the part of the agents or employees of Driver in connection therewith and the same shall be the obligation and liability of Driver.

 

23. INTELLECTUAL PROPERTY RIGHTS

Subject to the terms and conditions of these Terms, Company hereby grants You a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of these Terms, to use the Website and Application solely for the purpose of providing the Services to Users and tracking information related to the Services. All rights not expressly granted to You are reserved by Company. You shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Application in any way; (b) modify or make derivative works based upon the Application; (c) improperly use the Application, including creating Internet “links” to any part of the Application, “framing” or “mirroring” any part of the Application on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Application; (d) reverse engineer, decompile, modify, or disassemble the Application; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, Driver shall not, and shall not allow any other party to, access or use the Application to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Application an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Application; or (iv) attempt to gain unauthorized access to the Application or its related systems or networks. The Application, including all intellectual property rights therein shall remain the property of Company. Neither these Terms nor Your use of the Application conveys or grants to You any rights in or related to the Application, except for the limited license granted above. Other than as specifically permitted by the Company in connection with the Application and Services, You are not permitted to use or reference in any manner Company’s company names, logos, products and service names, trademarks, service marks, trade dress, copyrights or other indicia of ownership, alone and in combination with other letters, punctuation, words, symbols and/or designs (the "Vixster Marks and Names") for any commercial purposes. You agree that You will not try to register or otherwise use and/or claim ownership in any of the Vixster Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.

 

24. WAIVER

The terms of these Terms may be waived only in writing signed by the Party waiving compliance. The Company may enforce any provision of these Terms at any time even if the Company has not previously required You to perform all of Your obligations under these Terms. The Company’s waiver of any of its rights arising from any breach of these Terms by Driver shall not be considered as a waiver of any right arising from any subsequent breach.

 

25. REFORMATION AND SEVERABILITY

If any provision of these Terms shall for any reason be held to be invalid or unenforceable by a court of competent jurisdiction, such decision shall not affect, impair or invalidate the remainder of these Terms but shall be confined in its operation to the provision of these Terms directly involved in the controversy in which the decision was rendered. The invalid or unenforceable provision shall be reformed so that each Party shall have the obligation to perform reasonably in the alternative to give the other Party the benefit of its bargain. In the event the invalid or unenforceable provision cannot be reformed, the remaining provisions of these Terms shall be given full effect, and the invalid or unenforceable provision shall be deemed stricken.

 

26. ASSIGNMENT

These Terms shall be binding upon and shall inure to the benefit of the Parties to these Terms and their respective successors and permitted assigns. Neither these Terms nor any of the rights, interests or obligations hereunder shall be assigned by either Party hereto without the prior written consent of all other Parties, which consent shall not be unreasonably withheld.

 

27. DISPUTE RESOLUTION

In the event of any dispute between Company and You concerning these Terms, all such disputes shall be resolved by binding arbitration before a single neutral arbitrator. The arbitrator shall be selected from the American Arbitration Association through its procedures. All rules governing the arbitration shall be the rules as set forth by the American Arbitration Association. The arbitrator is bound to rule only on whether or not there has been a violation of the terms of these Terms and to render an award, if any, that is consistent with the terms of these Terms. Neither party to these Terms is entitled to any legal recourse or rights or remedies other than those provided within these Terms. Your sole remedy for claims arising out of these Terms, are those set forth in these Terms. The arbitrator may apportion the costs of the arbitration, including arbitrator's fees, among the parties, but shall have no power to award attorneys' fees. Each party shall be responsible for its own attorneys' fees. You agree that any claim, action or proceeding arising out of or related to these Terms must be brought in your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative, collective, or class proceeding. YOU ACKNOWLEDGE AND AGREES THAT YOU HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

 

28. ATTORNEYS FEES

In the event that it shall become necessary for either Party to retain the services of an attorney to enforce any terms of these Terms by any legal means, the prevailing Party, in addition to all other rights and remedies under these Terms or as provided by law, shall be entitled to reimbursement of its reasonable attorney's fees and costs of suit by the non-prevailing Party, payable on demand of the prevailing Party.

 

29. MODIFICATION

No changes, modifications or amendments of any term shall be valid unless agreed upon by the Parties in writing. Any agreement between the Parties purporting to amend a term or condition of these Terms shall, to be effective, specifically identify that term or condition’s Paragraph number, and shall include the Parties’ specific intent to amend that term or condition.

 

30. CHOICE OF WORDS

The language used in these Terms shall be deemed to be the language chosen by the Parties to these Terms to express their mutual intent. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, or neuter, singular or plural as the identity of the person or persons may require.

 

31. NO STRICT CONSTRUCTION

Neither Party will assert that it did not draft the words used in the Terms so that any ambiguities are resolved against the Party that drafted the Terms so that the rule of strict construction will not be applied against either Party to these Terms.

 

32. HEADINGS

The headings in these Terms are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of these Terms.

 

33. NOTICES

All notices, demands and requests which may be given or which are required to be given by either Party to the other must be in writing, unless otherwise specifically provided for in these Terms, and shall be sent by express, registered or certified mail, return receipt requested or with delivery confirmation, postage prepaid, by overnight courier service such as Federal Express, by facsimile transmission, or by personal delivery and addressed to each Party hereto at the addresses set forth above. Notices, demands or requests which any Party is required or desires to give the other hereunder shall be deemed to have been properly given for all purposes if: (a) delivered against a written receipt of delivery; (b) mailed by express, registered or certified mail of the United States Postal Service, return receipt requested, or mail with delivery confirmation of the United States Postal Service, postage prepaid; (c) delivered to a nationally recognized overnight courier service for next business day delivery, to its addressee at such Party's address as set forth above; or (id) delivered via telecopy or facsimile transmission to a Party’s facsimile number, provided, however, that if such communication is given via telecopy or facsimile transmission, an original counterpart of such communication shall concurrently be sent in the manner specified in subparagraphs (b) or (c) above. Each such notice, demand or request shall be deemed to have been received upon the earlier of: (i) actual receipt or refusal by the addressee; or (ii) three (3) business days after deposit thereof at any main or branch United States post office if sent in accordance with subparagraph (b) above, and the next business day after deposit thereof with the courier if sent pursuant to subparagraph (c) above.

 

34. SURVIVAL

Except as otherwise provided in these Terms, all covenants and agreements made in Sections 10, 15-19 shall survive the execution and subsequent termination of these Term.

 

35. CHOICE OF LAW AND VENUE

These Terms shall be construed in accordance with the laws of North Carolina without giving effect to the North Carolina conflict of law provisions. The Parties further agree that the location and jurisdiction for any dispute arising under these Terms shall be proper only in any federal or state court located only in Watauga County, North Carolina.

 

36. VOLUNTARY SIGNATURE

The Parties represent that each has carefully read these Terms, that he knows and understands the contents and consequences thereof, and that he has signed these Terms voluntarily and with informed consent.

 

37. ENTIRE AGREEMENT

These Terms constitute the entire agreement between you and the Company relating to the subject matter hereof. The Parties shall not be bound by or liable for any statement, writing, representation, promise, inducement or understanding not set forth herein.

 

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF USE, PRIVACY POLICY AND DRIVER GUIDELINES AND AGREE THAT MY CHECKING OF THE BOX PROVIDED BELOW IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

 

 

Vixster L.L.C.