IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION 19 AND THE AUTOMATIC RENEWAL AND CANCELLATION PROVISIONS IN SECTIONS 3(c) AND 4(d)-(g).
This Agreement constitutes a legal agreement between you ("you" or "User") and Pink Sponge Technologies, Inc. d/b/a Pink Sponge and its affiliates, parents, and subsidiaries (collectively, "Pink Sponge" or "us"). This Agreement governs your use of our services and platform that facilitates communications between Users offered through our website located at www.Pink- Sponge.com, as it may be modified, relocated and/or redirected from time to time (the "Site"), and the mobile applications offered by us (the "Apps"). Our services, platform, Site and Apps are collectively referred to as the "Pink Sponge Platform".
By accessing, using or registering with the Pink Sponge Platform or any portions thereof, you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as we may publish from time to time. Please read this Agreement carefully. If you do not agree to accept and be bound by this Agreement, you must immediately stop using the Pink Sponge Platform. Pink Sponge's acceptance is expressly conditioned upon your assent to this Agreement in its entirety. If this Agreement is considered to be an offer by us, acceptance is expressly limited to this Agreement.
By using the Pink Sponge Platform, you represent and warrant that: (i) you are at least 18 years old, are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
� Your agreement that either party may compel binding arbitration for most types of disputes, and your agreement to submit to an informal dispute resolution process for at least 30 days prior to the initiation of any claim (Section 19).
� Your agreement that no claims can be adjudicated on a class basis (Section 19).
� Your acknowledgment of and agreement to pay Pink Sponge's Trust and Support Fee that will be applied to each appointment of a Professional Service paid through the Pink Sponge Platform (Section 3(f)).
� Your acknowledgment of and agreement to Pink Sponge's dormant account service fees (Section 3(i)).
� Your acknowledgment of and agreement to Pink Sponge's cancellation policies and cancellation fees (Section 4(e)).
� If you enroll in a Recurrent Service, a Minimum Commitment Plan, and/or Pink Sponge Select membership under these Terms, your agreement that your plan and/or membership will automatically renew after an initial term if you do not cancel in accordance with these Terms (Section 3(c), Sections 4(d)-(f)).
� Your agreement to release Pink Sponge from liability based on claims relating to Services and otherwise (Section 17) and your agreement to the limitation of time within which a claim can be brought (Section 22).
� Your agreement to indemnify Pink Sponge from claims due to your use, misuse or inability to use the Pink Sponge Platform, the Merchandise and/or Professional Services, your violation of this Agreement, applicable laws or third party rights, and/or content or information submitted from your account to the Pink Sponge Platform (Section 18).
� Pink Sponge's sole liability with respect to disputes is set forth in the Pink Sponge Happiness Guarantee (Section 3(d)). Home Improvement Referrals (as described in Section 3(g)) are NOT covered by the Pink Sponge Happiness Guarantee.
� Your agreement that Pink Sponge's Happiness Guarantee is limited to only Payments paid by Requesters through the Pink Sponge Platform for Professional Services that are booked and paid through the Pink Sponge Platform, and does NOT apply to Home Improvement Referrals or any Professional Services obtained from such Home Improvement Referrals.
1. Pink Sponge Platform; Background Checks.
a. The Pink Sponge Platform. The Pink Sponge Platform is a technology platform that makes available certain home services to individuals seeking to obtain home services (�Requesters�) that Pink Sponge fulfills using independently-established home service providers customarily engaged in a trade, occupation and/or business of providing the services requested (�Professionals�). Those certain services requested by the Requesters, which are to be completed by the Professionals, are hereinafter referred to as "Professional Services". Professional Services also include Professional Services that are requested through Home Improvement Referrals, which are described further in Section 3(g) below. The Professional Services may include the delivery, installation and/or assembly of furniture and/or other items obtained through the Pink Sponge Platform or from a third party ("Merchandise"), but shall not be
deemed to include the Merchandise itself. Pink Sponge does not itself provide Merchandise. PINK SPONGE, THROUGH THE PINK SPONGE PLATFORM, OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH PROFESSIONAL SERVICES AND/OR MERCHANDISE, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE SUCH PROFESSIONAL SERVICES OR MERCHANDISE ITSELF OR ACT IN ANY WAY AS A RETAILER OR MANUFACTURER, OR AS A CLEANING, PINK SPONGEMAN, OR OTHER HOME-RELATED OR MOVING-RELATED SERVICE PROVIDER, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY PROFESSIONAL SERVICES AND/OR MERCHANDISE PROVIDED TO THE REQUESTER, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE. PINK SPONGE IS NOT AFFILIATED WITH, ENDORSED OR SPONSORED BY ANY THIRD PARTY MERCHANDISE PROVIDER OR RETAILER.
b. Background Checks and Licensing. PINK SPONGE CHECKS THE BACKGROUNDS OF PROFESSIONALS VIA THIRD PARTY BACKGROUND CHECK SERVICES; PROVIDED, HOWEVER, FOR PROFESSIONALS THAT ARE REQUESTED THROUGH HOME IMPROVEMENT REFERRALS AND FOR PROFESSIONALS THAT ARE ENTITIES THE BACKGROUND CHECK IS LIMITED TO THE OWNER/PRINCIPAL OF THE COMPANY. However, each Requester should exercise caution and common sense to protect its personal safety and property, just as you would when interacting with any person whom you do not know. Certain states may require state-level licensing for projects above specified dollar amounts. We recommend you confirm these licensing requirements with the business and the applicable state and local licensing authorities. In some states, licensing may be required by the county or local authority in which the work is being performed. We recommend you confirm these licensing requirements before proceeding with your project. We always recommend that you ask the Professional to provide you with a copy of their license. PINK SPONGE PERFORMS SCREENING SOLELY AT THE TIME THE PROFESSIONAL APPLIES TO REGISTER ON THE PINK SPONGE PLATFORM. PINK SPONGE CANNOT AND DOES NOT WARRANT OR REPRESENT THAT A PROFESSIONALS' PROFILE AND BACKGROUND CHECK SCREENING INFORMATION IS UP TO DATE. PINK SPONGE IS UNDER NO OBLIGATION TO UPDATE A PROFESSIONAL'S BACKGROUND CHECK OR PROFILE. BY USING THE PINK SPONGE PLATFORM AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE REQUESTER AGREES TO HOLD PINK SPONGE FREE FROM THE RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF THE PROFESSIONAL SERVICES. PINK SPONGE IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING PROFESSIONALS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY PROFESSIONAL SERVICES.
2. Personal Information; User Accounts.
a. Collection of your Personal Information. Some of the materials available on the Pink Sponge Platform may require prior registration to access. If you decide to access such materials you will be required to register. We may refuse to grant you, and you may not use, a username, email
b. Account, Password and Security. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any username, password and account provided by you or us for accessing the Pink Sponge Platform. You are solely and fully responsible for all activities that occur under your password or account, except that Pink Sponge may, in certain circumstances, access your account to make changes that you request, such as rescheduling a Service appointment. Pink Sponge has no control over the use of any User's account by the User or third parties and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you must contact us immediately www.Pink-Sponge.com/contact-us Nothing in this section shall affect Pink Sponge's rights to limit or terminate the use of the Pink Sponge Platform, as provided below in section 4(b).
c. Proof of Identity. You will provide us with such proof of identity as we may reasonably request from time to time.
d. Text Messages and Phone Calls. By using the Pink Sponge platform, you expressly consent and agree to accept and receive communications from us, including via fax, text (SMS) messages, calls, push notifications and other reasonable means at any of your contact numbers or addresses, even if you are listed on any federal, state, provincial or other applicable "Do Not Call" list, in order that we may provide the services set forth on the Pink Sponge Platform, to service your account, to reasonably address matters pertaining to your account, including but not limited to notifying you of, or confirming, appointments that you have scheduled, or for other purposes reasonably related to your service request and our business, including marketing related emails. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. By consenting to being contacted by Pink Sponge, you understand and agree that you may receive communications, including marketing communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages, sent by or on behalf of Pink Sponge, its affiliates, subsidiaries, parents and/or Users/Professionals, including but not limited to: operational communications concerning your account or use of the Pink Sponge Platform or Services, updates concerning new and existing features on the Pink Sponge Platform, communications concerning promotions run by us, and news concerning Pink Sponge and industry developments. For certain Professional Services, you also expressly authorize Pink Sponge to send you an automated prerecorded call confirming your Professional Services request, along with calls from up to four Professionals that can help you with your
request to the land-line or mobile phone number you provided, and you understand that either Pink Sponge or the Professionals may use automated phone technology (including autodialed and prerecorded messages) to call you and that your consent is not required to purchase products or services. You agree that by using the Pink Sponge Platform and requesting Professional Services, you are entering into a business relationship with Pink Sponge and/or Professionals and thus agree to be contacted by Pink Sponge and/or Professionals. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the Pink Sponge Platform or the Services. If a contact number you have provided to us is no longer your number, you agree to notify us promptly that you can no longer be reached at that number. You represent that you have received, and are authorized to convey to us, the consent of any authorized users on your account to be contacted by us as described in this Section. You agree that all consents provided in this Section will survive cancellation of your account. You may opt-out of receiving promotional or marketing texts or calls from Pink Sponge at any time. You may opt-out of receiving all text (SMS) messages from Pink Sponge (including informational or transactional messages) by replying with the word "STOP" to a text message from us; however you acknowledge that opting out of receiving all texts may impact your use of the Pink Sponge Platform or the Services. You also acknowledge that Pink Sponge or its third party service providers may record customer service calls after notice to you and with your consent, in order to assist you when you contact our customer support services. You agree to Pink Sponge's use of a service provider to mask your telephone number when you call or exchange text (SMS) messages with a Professional or Requestor using a telephone number provided by Pink Sponge. During this process, Pink Sponge and its service provider will receive in real time and store call data, including the date and time of the call or text (SMS) message, the parties' phone numbers, and the content of the text (SMS) messages. You agree to the masking process described above and to Pink Sponge's use and disclosure of this call data for its legitimate business purposes.
TO KNOWINGLY INPUT FALSE INFORMATION, INCLUDING BUT NOT LIMITED TO NAME, PHONE NUMBER, ADDRESS OR E-MAIL ADDRESS IS A VERY SERIOUS AND FRAUDULENT MATTER THAT COULD RESULT IN SIGNIFICANT COSTS AND DAMAGES INCLUDING INVASION OF PRIVACY RIGHTS, TO PINK SPONGE AND THE PROFESSIONALS, AND TO CONSUMERS, AS WELL AS THE LOSS OF TIME, EFFORT AND EXPENSE RESPONDING TO AND PURSUING SUCH FALSE INFORMATION AND REQUEST, AND FURTHER, COULD RESULT IN REGULATORY FINES AND PENALTIES. ACCORDINGLY, IF YOU KNOWINGLY INPUT FALSE INFORMATION IN A SERVICE REQUEST, INCLUDING BUT NOT LIMITED TO SOME ONE ELSE'S NAME, E-MAIL ADDRESS, PHYSICAL ADDRESS OR PHONE NUMBER OR A RANDOM OR MADE UP NAME, ADDRESS, E-MAIL OR PHONE NUMBER YOU AGREE TO FULLY INDEMNIFY AND BE LIABLE TO PINK SPONGE AND EACH PROFESSIONAL WHO PROVIDES SUCH PROFESSIONAL SERVICES, FOR THE GREATER OF: (1) A MINIMUM AMOUNT OF $11,000 TO EACH OF PINK SPONGE AND EACH OF THE AFFECTED PROFESSIONALS AND FOR EACH OF THE ACTUAL PERSON(S) AFFECTED BY ANY OF THE IMPROPER, INCORRECT OR FRAUDULENT INFORMATION YOU ENTER (FOR EXAMPLE THE ACTUAL OWNER OF THE E-MAIL ADDRESS OR PHONE NUMBER, ETC.), PER IMPROPER SUBMISSION, PLUS ANY ATTORNEYS FEES COSTS AND EXPENSE RELATING THERETO, IF APPLICABLE, OR
(2) THE ACTUAL DAMAGES, DIRECT, PUNITIVE AND CONSEQUENTIAL, AND ANY
REGULATORY OR JUDICIAL FINES OR PENALTIES THAT MAY ARISE FROM SUCH INTENTIONAL, MISLEADING, HARMFUL AND FRAUDULENT ACTIVITY, PLUS REASONABLE LEGAL FEES, COST AND EXPENSES RELATING THERETO, WHICH EVER IS GREATER.
e. Emails. Pink Sponge may send you confirmation and other transactional emails regarding the Professional Services. Pink Sponge and its affiliates, subsidiaries, parents may also send you emails about other services that we think might interest you ("Promotional Emails"). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting us.
3. Payments; Recurring Services and Recurring Charges; Pink Sponge Happiness Guarantee; Claims; Dormant Account Service Charge.
a. Payments. Requesters are obligated to pay in advance for those Professional Services and/or Merchandise they OBTAIN through the Pink Sponge Platform ("Payments"). Prior to the scheduled Professional Service, we will charge the Requester's credit card according to the amount the Requester has agreed to on the Pink Sponge Platform with respect to those Professional Services and/or Merchandise, the Requester has ordered, and for all purchases and payments for reimbursement costs, fees, expenses or applicable taxes associated with a Professional Service as well as the Trust and Support Fee (as defined in 3(f) below), and the Requester hereby authorizes us to charge the credit card on file in the Requester's Pink Sponge Platform account for such amounts. We will use third party services to process credit card information. By accepting this Agreement, you are giving Pink Sponge (or a third-party payment processor on Pink Sponge's behalf) permission to charge your on-file credit card, debit card, or other approved methods of payment for fees that you owe Pink Sponge. Depending on the transaction you selected or services requested, Pink Sponge may charge you on a one-time or recurring basis. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Professional Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with Pink Sponge at the prices in effect when such charges are incurred. We retain the right, in our sole discretion, to place a hold on the Requester's credit card for an ordered or completed Professional Service transaction. Seventy-two (72) hours after a Professional Service is completed, if there is no complaint by the Requester, we will mark the Professional Service as closed. Except for Professional Services that are requested through Home Improvement Referrals, all Payments by Requesters must be made through the Pink Sponge Platform. Any Professional Services that are requested through Home Improvement Referrals, any Payments paid, or any Professional Services scheduled or obtained outside of the Pink Sponge Platform are not subject to our Pink Sponge Happiness Guarantee in Section 3(d). Except for the Pink Sponge Happiness Guarantee in Section 3(d), and the Refund Policy in Section 3(e), no refunds or credits will be provided once the Requester's credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made. While we will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should
any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. Requesters will be liable for all transaction taxes on the Professional Service(s) provided (other than taxes based on Pink Sponge's income). If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Pink Sponge or third parties, then Pink Sponge may withhold any payments to you for as long as we determine any related risks to Pink Sponge or third parties persist. For any amounts that we determine you owe us, we may (i) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (ii) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (iii) reverse any credits to your bank account; or (iv) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate this Agreement, then we may in our sole discretion permanently withhold any payments to you.
b. Job Rate. The rate for a Professional Service ("Job Rate") as determined by Pink Sponge depends on factors, such as location and how frequently a Recurrent Service is ordered, and payment terms may increase. Therefore, the same Professional Service may cost more in a different location or if the Professional Service is ordered less frequently. However, you will be notified prior to any such payment increase with sufficient notice to enable you to cancel the Recurrent Service as set forth herein.
c. Recurrent Service with Automatic Renewal and Recurring Charges.
(i) Recurring Service: When requesting certain Professional Services, Requesters may have the option of choosing that the Professional Service be repeated on a regular basis ("Recurrent Service"). For example, a Requester may choose that a cleaning be performed every two weeks. When a Requester chooses a Recurrent Service, the Pink Sponge platform will automatically schedule that Recurrent Service to occur on future dates indefinitely at the frequency requested by Requester. Pink Sponge cannot guarantee that the same Professional will be available for each Recurrent Service appointment or that Recurrent Service appointments will not be canceled.
(ii) BILLING, RECURRING CHARGES AND AUTOMATIC RENEWAL: When a Requester signs up for a Recurring Service, Requester will be charged immediately for the initial booking. THEREAFTER, REQUESTER'S AGREEMENT TO PAY FOR THE PROFESSIONAL SERVICE WILL AUTOMATICALLY RENEW AND REQUESTER'S CREDIT CARD WILL BE CHARGED THE SAME NON-PROMOTIONAL AMOUNT, AS ORIGINALLY DISCLOSED TO REQUESTER AT THE TIME OF SIGNING UP FOR THE RECURRING SERVICE, IN ADVANCE OF EACH AUTOMATICALLY SCHEDULED PROFESSIONAL SERVICE APPOINTMENT, AS WELL AS FOR ANY APPLICABLE CANCELLATION FEES AND TAXES.
(iii) CANCELLATION OF AUTOMATICALLY RENEWING RECURRING SERVICE: Requesters may cancel the automatically renewing Recurrent Service AT ANY TIME by visiting the Pink Sponge Help Center at www.Pink Sponge.com/contact-us or by mailing a notice of cancellation to Pink Sponge1343 E. Gladstone St. Suite 300 Glendora, CA 91740
REQUESTERS MUST CANCEL MORE THAN TWENTY-FOUR HOURS PRIOR TO THEIR NEXT PROFESSIONAL SERVICE IN ORDER TO AVOID BEING CHARGED CANCELLATION FEES AND/OR FOR THEIR NEXT PROFESSIONAL SERVICE PURSUANT TO PINK SPONGE'S CANCELLATION POLICY AS SET FORTH IN SECTION 4(e).
d. Pink Sponge Happiness Guarantee.
i. The Pink Sponge Happiness Guarantee provides certain limited additional protections provided by Pink Sponge for Professional Services. Subject to the below exclusions and the terms and conditions and limitations herein, if you are dissatisfied with the performance of a Professional Service, Pink Sponge, in its sole discretion, will either (a) have the specific Professional Service reperformed or (b) compensate Requesters the lowest amount of: (1) subject to the exclusions below, up to USD $2,500 per occurrence for losses arising from property damage as a direct result of negligence of a Professional during performance of a Professional Service or (2) up to USD $1,000 for losses arising from damage to floors and items containing granite, marble or any other stone work as a direct result of negligence of a Professional during the performance of a Professional Service the amount shall be limited to up to USD $1,000; or (3) up to USD $2,500, in the aggregate, for losses arising from theft of a Requester's property by a Professional during performance of a Professional Service. The Service Requester is eligible for the Pink Sponge Happiness Guarantee provided that the Requester reports the issue within seventy-two (72) hours of the Professional Service appointment to our Requester service by visiting the Pink Sponge Help Center at www.Pink Sponge.com/contact-us. If the Service Requester does not report the issue within seventy-two (72) hours of the Professional's completion of the Professional Service, the claim is ineligible for the Pink Sponge Happiness Guarantee. For Recurring Services, each Professional Service is treated as a separate occurrence.
ii. If you carry insurance that would cover you in the event of a claim, such as renter's insurance, homeowner's insurance, automobile insurance or an umbrella policy ("Personal Insurance"), You agree that your Personal Insurance is primary and the Pink Sponge Happiness Guarantee is secondary. The Pink Sponge Happiness Guarantee will only compensate for losses to the extent not otherwise covered by your Personal Insurance and only as permitted herein.
iii. A Requester will be covered under the Pink Sponge Happiness Guarantee for a Professional Service, subject to the exclusions in subsection (v) below, provided:
� The Professional Service is paid for in full through the Pink Sponge Platform;
� The Requester has not violated this Agreement;
� The Requester has reported the claim within 72 hours of the Professional's completion of the Professional Service;
� The Requester's Pink Sponge account is in good standing with no outstanding balances owed to Pink Sponge;
� The Requester has identified fragile and other breakable items and communicated the location and identity of those items to the Professional prior to the start of the Professional Service; and
� The Requestor has accounted for and secured all valuables prior to the start of a Professional Service.
iv. What is excluded from the Pink Sponge Happiness Guarantee? The "Pink Sponge Happiness Guarantee" does not cover the following:
� Professional Services that are requested through Home Improvement Referrals;
� Any Professional Service that is not booked and paid for directly on the Pink Sponge Platform;
� losses arising out of acts of nature, including, but not limited to, pollution, earthquakes and weather related events such as hurricanes and tornadoes;
� losses arising out of interruption of business, loss of market, loss of income and/or loss of use;
� losses for property damage and theft exceeding the original value and/or replacement value for such property, less any standard depreciation;
� losses arising from the acts or omissions of a Requester or third party;
� losses arising from the negligence or misconduct of a third party;
� losses arising from a manufacturer's or a product's defects;
� losses from pre-existing damages or conditions of the item or property;
� losses arising from items supplied by the Requester or due to Requester recommendations (e.g., if a manufacturer recommends affixing furniture to a wall and a Requester declines to have furniture affixed, etc);
� losses arising from flooding and/or water damage including mold, fungi or bacteria;
� losses arising from products containing hazardous or harmful materials, acts of terrorism, product liability, or pollution;
� losses of cash, third party gift cards, and securities;
� losses as a result of an intentional wrongful act by a Professional;
� losses arising from normal wear and tear;
� losses for items that retain their functionality; (e.g., minor cosmetic damage, ordinary wear and tear, a t.v. that has a scratch on the bezel);
� losses for fine arts, which includes but is not limited to paintings, etchings, printed photos, pictures, tapestries, rare or art glass, art glass windows, valuable rugs, statuary, sculptures, antique furniture, antique jewelry, bric-a-brac, porcelains, antique automobiles, coins, stamps, other collectibles, collections, furs, jewelry, precious stones, precious metals, and similar property of rarity, historical value;
� losses for damage beyond the specific damaged area (e.g., should flooring sustain damage, any loss is limited to the replacement cost of the square footage that was damaged after deducting for obsolescence and physical depreciation);
� loss of use damages, including without limitation, loss of use such as property, furniture and the costs of any storage, movement and insurance of furniture in connection with loss of use;
� losses excluded pursuant to Section 17 of the Agreement;
� losses based on sentimental and/or undocumented intangible value;
� losses or damages associated with the unauthorized acquisition of, access to, destruction of, and/or loss of electronic data, including but not limited to films, records, manuscripts,
drawings or photographs, data, information, audio or video recordings, files, facts, programs or other materials stored as or on, created or used on, or transmitted to or from, computer software, including systems and applications software, hard or floppy disks, CD-ROMs, tapes, drives, cells, data processing devices, cloud storage, or any other media which are used with electronically-controlled equipment;
� losses related to repairs outside of the area where the Professional Services were performed;
� losses of pets, personal liability or damage to shared or common areas;
� losses arising from shipping costs and/or shipping of replacement items and/or taxes incurred in purchasing the original and/or replacement items;
� losses of theft without a valid police report, if requested by Pink Sponge; and losses with insufficient documentation; and
� losses occurring after, or unrelated to, the performance of a Professional Service;
� losses involving products or services, or uses of either, that are prohibited by law;
� losses due to unforeseeable or latent defects in the premises;
� losses related to services not explicitly booked through the Pink Sponge Platform; and
� losses reported by third parties
v. How do I submit a Claim? First report of a claim must be made within 72 hours from the Professional's completion of the Professional Service. After the first report, you will be asked to complete the full claim form within 7 days of receipt. If you do not complete the claim form in its entirety within 7 days of receipt, your claim will no longer be eligible for the Pink Sponge Happiness Guarantee. We urge you to read through these terms and conditions prior to submitting a claim. All claims will be reviewed on a case-by-case basis. During Pink Sponge's claims assessment process, you may be required to provide written detailed: (1) proof of ownership of damaged/missing item; (2) proof of value of damaged/missing item; and (3) proof of damage or loss. If such information is requested, you will have 30 days from the date of the request to send Pink Sponge the requested information. If you fail to provide the requested information within the 30 day time period and/or fail to contact Pink Sponge to arrange for an extension of time, Your claim will be considered closed and no longer eligible for the Pink Sponge Happiness Guarantee. You also agree to: (A) protect and preserve any damaged property that is the basis of a claim from further damage; (B) assist and allow Pink Sponge or its insurers access to inspect and make copies, photographs and recordings of anything relating to the claim;
(C) accept repairs and/or remediation by a Professional; (D) accept a replacement only if repairs are proven not to be an option; (E) submit requested materials by the dates outlined by the Pink Sponge resolutions team; and (F) accept a replacement item subject to the standard depreciation of that item. If any part of Your claim is approved, then as a condition to any payment to You under the Pink Sponge Happiness Guarantee, You will be required to execute and deliver to Pink Sponge the release agreement within 14 days of receipt of the release agreement from Pink Sponge, and assign to Pink Sponge or its insurer any rights and remedies you may have to recover amounts paid to you with respect to an approved claim from any party that is financially responsible for the approve claims and any rights in any property that is recovered. The release agreement shall be rescinded and considered null and void if not signed and returned to Pink Sponge within 14 days of Your receipt and the claim shall no longer shall be eligible for the Pink Sponge Happiness Guarantee.
e. Pink Sponge Merchandise Refund Policy.
i. If you decide that you do not want the Merchandise before it has been unpacked or opened, the Merchandise is broken, defective or otherwise damaged, or if the Merchandise you ordered does not fit into your home or your building refuses entry, you should contact the third party manufacturer or distributor, as applicable, of the Merchandise for a potential refund; provided, however, that Pink Sponge shall not refund the cost of the Professional Services. Pink Sponge shall not be responsible for any payment to you if you are unable to obtain a refund or replacement for the Merchandise from the third party manufacturer or distributor, as applicable, of the Merchandise.
ii. If any Merchandise is broken only in the course of performing the Professional Services, Pink Sponge will remove and replace the broken Merchandise (or, where applicable, the broken component of the Merchandise) and re-perform the applicable Professional Services at no additional cost to you (provided, however, that Pink Sponge shall not refund the cost of the Merchandise or refund the cost of the Professional Services, except as set forth in 3(d) above).
f. Pink Sponge Trust and Support Fee Pink Sponge may assess an additional "Trust and Support Fee" to support the Pink Sponge Platform, including costs related to background checks, insurance, customer support, and related services provided to you by the Pink Sponge Platform. The Trust and Support Fee will be applied to each appointment of a Professional Service requested through the Pink Sponge Platform (e.g., if you requested a Recurring Service, a Trust and Support Fee may be assessed on each Recurrent Service appointment). The amount of the Trust and Support Fee may vary but shall be retained by Pink Sponge in its entirety.
G. All referrals made through Pink Sponge are at risk for client�s use. We receive no incentives for recommendations.
h. Dormant Account Service Charge. An account is considered dormant/inactive if it has had no activity for a period of six (6) months. Activity would include applying any portion of a credit balance to payment for Professional Services. Where permitted by applicable law, a dormant account fee of up to $10 is assessed monthly until the account is reactivated or the balance has reached zero. To reactivate your account, please visit the Pink Sponge Help Center at www.Pink Sponge.com/contact-us.
4. Term and Termination; Cancellation of Professional Services; Minimum Commitment Plan with Automatic Renewal; Select and Savings Memberships with Automatic Renewals; Survival.
a. Term. This Agreement shall continue in full force and effect until such time as it is terminated by you or by us.
b. Termination by Pink Sponge. We may terminate this Agreement or terminate or suspend your right to use the Pink Sponge Platform at any time for any or no reason (including, without limitation, in the event that we believe that you have breached this Agreement or any policy posted on the Pink Sponge Platform, or if we otherwise find that you have engaged in
inappropriate and/or offensive behavior (collectively, "Prohibited Conduct") by providing you with written or email notice of such termination to the physical or email address you have provided us, and termination will be effective immediately upon such notice. Except in the event that we terminate or suspend your right to use the Pink Sponge Platform due to any Prohibited Conduct, we will refund in full any payments for Professional Services that have not been performed or completed. If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. When terminating your account, Pink Sponge may delete the account and all the information in it. You have no ownership rights to your account.
c. Termination by You. You may terminate this Agreement by completely and permanently ceasing to use the Pink Sponge Platform (provided that there are no outstanding Professional Services ordered under your password or account) and by closing any account you have opened on the Pink Sponge Platform. If you attempt to terminate this Agreement while there are still outstanding Professional Services ordered under your password or account, this Agreement shall not terminate until such Professional Services have been performed or otherwise canceled as permitted by Pink Sponge.
d. Cleaning Plan with a Minimum Commitment.
(i) Minimum Commitment Plan Term: If you have selected a Professional Services cleaning plan with a minimum commitment ("Minimum Commitment Plan"), your Minimum Commitment Plan term commences on the date of your first appointment.
(ii) Minimum Commitment Plan Cancellation Fee: If you have selected a Minimum Commitment Plan, you will be subject to and charged a cancellation fee up to USD $150 in the US should you elect to terminate the Professional Services cleaning plan prior to the expiration of your minimum commitment period.
(iii) Rescheduling Cleaning Plan appointments during the Minimum Commitment Period: If you have selected a Professional Services cleaning plan with a minimum commitment, you can reschedule any cleaning plan appointment for free at least 24 hours in advance of the scheduled start time, provided such rescheduled appointment will occur within the minimum commitment period. If you reschedule between 2-24 hours before a scheduled Professional Service appointment, you will be charged a USD $45 fee. If you reschedule during the 2 hours before a scheduled Professional Service appointment, you will be charged the full Professional Service amount. If you skip any cleaning plan appointment within the minimum commitment period or reschedule any cleaning plan appointment within the minimum commitment period to outside of the minimum commitment period, your credit card will be charged for the amount of the appointment and in addition, your account will be credited the amount you are charged. Such merchandise credit will be available for your use during the minimum commitment period only as a merchandise credit to use to book one-off replacement cleaning appointments or Pink Spongeman appointments, and after the minimum commitment period ends, you may apply such
merchandise credits to cleaning appointments and Pink Spongeman appointments. No monetary refunds will be provided for cleaning plan appointments that are skipped within the minimum commitment period or any cleaning plan appointment within the minimum commitment period that is rescheduled to outside of the minimum commitment period. In addition to the foregoing, if you skip any cleaning plan appointment between 2-24 hours before a scheduled appointment, you will also be charged an additional USD $45 cancellation fee and if you skip any cleaning plan appointment during the 2 hours before a scheduled appointment, you will be charged the full amount of the appointment, and will not be eligible for any credit.
(iv) Expiration of Minimum Commitment; AUTOMATIC RENEWAL: Once your minimum commitment period is complete, your selected plan will remain active and convert to a Recurring Service without a minimum commitment. The Pink Sponge Platform will automatically schedule Professional Service appointments to occur on future dates indefinitely at the frequency requested by you. YOUR AGREEMENT TO PAY FOR THE PROFESSIONAL SERVICE WILL AUTOMATICALLY RENEW AND YOUR CREDIT CARD WILL BE CHARGED BASED ON YOUR SELECTED TIME AND FREQUENCY.
(v) CANCELLATION OF AUTOMATICALLY RENEWING RECURRING SERVICE AFTER END OF MINIMUM COMMITMENT PERIOD: After your minimum commitment period is complete, you may cancel your plan at any time by visiting the Pink Sponge Help Center at www.Pink Sponge.com/or by mailing a notice of cancellation to Pink Sponge YOU MUST CANCEL MORE THAN TWENTY-FOUR HOURS PRIOR TO YOUR NEXT PROFESSIONAL SERVICE IN ORDER TO AVOID BEING CHARGED CANCELLATION FEES AND/OR FOR YOUR NEXT PROFESSIONAL SERVICE IN ACCORDANCE WITH THE CANCELLATION POLICY SET FORTH IN SECTION 4(e) BELOW.
e. Cancellation Policy for Service Cancellation by Requester of Cleaning Plans without a Minimum Commitment, Cleaning Plans after completion of the Minimum Commitment period and One-Time Professional Service appointments. Pink Sponge's cancellation policy for specific Professional Services is as follows: Requesters may cancel their scheduled Professional Service appointments through the Pink Sponge Platform at any time, subject to the following conditions:
(i) if a Requester cancels more than 24 hours before a scheduled Professional Service appointment, there is no cancellation fee; (ii) if a Requester cancels between 2-24 hours before a scheduled Professional Service appointment, the Requester will be charged a $45 cancellation fee; and (iii) if the Requester cancels during the 2 hours before a scheduled Professional Service appointment, the Requester will be charged the full Professional Service amount. This cancellation policy applies both for one-time Professional Service bookings and for recurring Professional Service appointments. A Professional Service appointment may be canceled through the Pink Sponge Help Center at or by mailing a notice of cancellation to Pink Sponge Technologies, Inc. Attn.: Legal, PO Box #1122, New York, NY 10159.
f. Pink Sponge Select.
(i) Select Membership: Pink Sponge may from time to time offer Requesters the opportunity to purchase one-time cleaning Professional Services provided the Requester first agrees to purchase an annual or monthly Pink Sponge Platform Select Membership ("Pink Sponge Select").
(ii) BILLING AND AUTOMATIC RENEWAL: When you first sign up and purchase Pink Sponge Select, you will be billed immediately for your initial Pink Sponge Select subscription period. BY ENROLLING IN PINK SPONGE SELECT, IN ADDITION TO ANY PROFESSIONAL SERVICES YOU PURCHASE THROUGH PINK SPONGE SELECT, YOU AUTHORIZE PINK SPONGE TO CHARGE YOU FOR YOUR INITIAL PINK SPONGE SELECT SUBSCRIPTION PERIOD AND A RECURRING ANNUAL OR MONTHLY MEMBERSHIP AT THE THEN CURRENT RATE, WHICH MAY CHANGE FROM TIME TO TIME. YOUR PINK SPONGE SELECT WILL AUTOMATICALLY RENEW AND PRIOR TO THE START OF THE NEXT SUBSCRIPTION PERIOD, YOU WILL BE CHARGED THE APPLICABLE PINK SPONGE SELECT FEE TO YOUR PROVIDED PAYMENT METHOD ON A RECURRING BASIS UNTIL CANCELED AS SET FORTH HEREIN. UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT YOUR PINK SPONGE SELECT TO AUTO RENEW, YOU UNDERSTAND THAT YOUR PINK SPONGE SELECT WILL AUTOMATICALLY CONTINUE AND YOU AUTHORIZE PINK SPONGE (WITHOUT NOTICE TO YOU UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN APPLICABLE MEMBERSHIP FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
(iii) Cancellation Fees: The cancellation and rescheduling of any cleaning Professional Service while you are enrolled in Pink Sponge Select is subject to the cancellation policy, including the payment of any cancellation fees, as further described in Section 4(e) above.
(iv) Declination of Payment: If an eligible payment method Pink Sponge has on file for you is declined for payment, you must provide us with a new eligible payment method promptly or your Pink Sponge Select will be canceled. If you provide us with a new eligible payment method and are successfully charged, your Pink Sponge Select period will be based on the original enrollment or renewal date and not the date of the successful charge.
(v) CANCELLATION OF AUTOMATICALLY RENEWING MEMBERSHIP: YOU WILL NOT BE CHARGED A PINK SPONGE SELECT FEE FOR THE SUBSEQUENT PERIOD IF YOU CANCEL YOUR PINK SPONGE SELECT AT LEAST THREE DAYS BEFORE YOUR NEXT PINK SPONGE SELECT RENEWAL DATE. You may cancel your Pink Sponge Select by visiting the Pink Sponge Should you cancel your Pink Sponge Select, Pink Sponge reserves the right to cancel any Professional Service appointments scheduled outside the current paid Pink Sponge Select period.
(vi) Pink Sponge Select Refunds: The Pink Sponge Select fees are nonrefundable except as only permitted pursuant to this subsection (vi). Subject to the following sentence, if you cancel your purchase of Pink Sponge Select within three days of (1) signing up for Pink Sponge Select or (2) converting from a free Pink Sponge Select trial to a paid Pink Sponge Select, we will refund your Pink Sponge Select fee. Notwithstanding the preceding sentence, you are not eligible for any refund of the Pink Sponge Select fee (a) if you purchased Pink Sponge Select prior to the expiration of the minimum commitment period of a Professional Services cleaning plan with a minimum commitment or (b) if you have used your Pink Sponge Select membership to purchase any Professional Services.
(vii) Pink Sponge Select Membership Plans/Promotional Trial Memberships: Pink Sponge sometimes offers certain Requesters various trial or other promotional memberships, which are subject to these Terms except as otherwise stated in the promotional offers.
g. Pink Sponge Savings Membership.
(i) Savings Membership: Pink Sponge may from time to time offer Requesters the opportunity to purchase Professional Services that are booked and paid for directly on the Pink Sponge Platform at a discount provided the Requester first agrees to purchase an annual or monthly Pink Sponge Savings Membership (�Pink Sponge Savings Membership�). Any discounts obtained through Pink Sponge Savings Membership cannot be combined or used with any other discounts, coupons or offers on the Professional Services.
(ii) BILLING AND AUTOMATIC RENEWAL: When you first sign up and purchase Pink Sponge Savings Membership, you will be billed immediately for your initial Pink Sponge Savings Membership subscription period. BY ENROLLING IN PINK SPONGE SAVINGS MEMBERSHIP, IN ADDITION TO ANY PROFESSIONAL SERVICES YOU PURCHASE THROUGH PINK SPONGE SAVINGS MEMBERSHIP, YOU AUTHORIZE PINK SPONGE TO CHARGE YOU FOR YOUR INITIAL PINK SPONGE SAVINGS MEMBERSHIP SUBSCRIPTION PERIOD AND A RECURRING ANNUAL OR MONTHLY AT THE THEN CURRENT RATE, WHICH MAY CHANGE FROM TIME TO TIME. YOUR PINK SPONGE SAVINGS MEMBERSHIP WILL AUTOMATICALLY RENEW AND PRIOR TO THE START OF THE NEXT SUBSCRIPTION PERIOD, YOU WILL BE CHARGED THE APPLICABLE PINK SPONGE SAVINGS MEMBERSHIP FEE TO YOUR PROVIDED PAYMENT METHOD ON A RECURRING BASIS UNTIL CANCELED AS SET FORTH HEREIN. UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT YOUR PINK SPONGE SAVINGS MEMBERSHIP TO AUTO RENEW, YOU UNDERSTAND THAT YOUR PINK SPONGE SAVINGS MEMBERSHIP WILL AUTOMATICALLY CONTINUE AND YOU AUTHORIZE PINK SPONGE (WITHOUT NOTICE TO YOU UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN APPLICABLE MEMBERSHIP FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
(iii) Cancellation Fees: The cancellation and rescheduling of any Professional Service while you are enrolled in Pink Sponge Savings Membership is subject to the cancellation policy, including the payment of any cancellation fees, as further described above.
(iv) Declination of Payment: If an eligible payment method Pink Sponge has on file for you is declined for payment, you must provide us with a new eligible payment method promptly or your Pink Sponge Savings Membership will be canceled. If you provide us with a new eligible payment method and are successfully charged, your Pink Sponge Savings Membership period will be based on the original enrollment or renewal date and not the date of the successful charge.
(v) CANCELLATION OF AUTOMATICALLY RENEWING MEMBERSHIP: YOU WILL NOT BE CHARGED A PINK SPONGE SAVINGS MEMBERSHIP FEE FOR THE SUBSEQUENT
PERIOD IF YOU CANCEL YOUR PINK SPONGE SAVINGS MEMBERSHIP AT LEAST THREE DAYS BEFORE YOUR NEXT PINK SPONGE SAVINGS MEMBERSHIP
RENEWAL DATE. You may cancel your Pink Sponge Savings Membership by visiting the Pink Sponge Help Center at www.Pink Sponge.com/help or by mailing a notice of cancellation to Pink Sponge Technologies, Inc. Attn.: Legal, PO Box #1122, New York, NY 101599. Following cancellation of your Pink Sponge Savings Membership you will continue to have access to Pink Sponge Savings Membership through the end of your current paid Pink Sponge Savings Membership period. Should you cancel Pink Sponge Savings Membership, Pink Sponge reserves the right to cancel any Professional Service appointments scheduled outside the current paid Pink Sponge Savings Membership period.
h. Policy for Service Cancellation by Professional. Except for Professional Services that are requested through Home Improvement Referrals, when a Professional cancels a scheduled Professional Service appointment, the Pink Sponge Platform generally notifies the Requester and attempts to fulfill the Requester's Professional Service request with another Professional. For Recurrent Service Requesters, if a Professional Service appointment is canceled by a Professional, Requester will not be charged for that Professional Service appointment.
6. Submission Areas. The Pink Sponge Platform may contain blogs, message boards, applications, opportunities to provide reviews, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Users to communicate with other Users and with Pink Sponge (collectively, "Submission Areas"). Some areas in the Submission Areas within the Pink Sponge Platform will be public and Pink Sponge will not be responsible for any information or materials posted in such public areas. Pink Sponge may, in its discretion, publicly post submissions you submit to a non-public area of the Pink Sponge Platform. You may only use Submission Areas to send and receive messages and material that are relevant and proper to the applicable forum and that comply with this Agreement. "Your Information" is defined as any information and materials you provide to us or other Users in connection with your registration for and use of the Pink Sponge Platform, including without limitation, information and materials that are posted or transmitted for use in Submission Areas. You are solely responsible for Your Information, and we are merely a passive conduit for your online distribution and publication of Your Information. You hereby represent and warrant that
Your Information: (a) will comply at all times with this Agreement, including but not limited to Section 7 (Rules for Use of the Pink Sponge Platform) below, and with Section 2 (Personal Information; User Accounts) above; and (b) will not create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers (ISPs), customers, or other partners or suppliers. You hereby grant us a non-exclusive, transferable, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all of Your Information that is posted to Submission Areas from or through your account on the Pink Sponge Platform, including but not limited to all images, videos, musical works and text included in such postings and to such other persons and/or entities as Pink Sponge may designate. The rights you grant in this license are for the limited purpose of operating, advertising, marketing, promoting, and improving the Pink Sponge Platform. We reserve the right to remove postings from Submission Areas in our sole discretion.
7. Rules for Use of the Pink Sponge Platform. During the term of this Agreement, Requesters may use the Pink Sponge Platform for your personal use only (or for the use of a person, including a company or other organization that you validly represent). Requesters may use the Pink Sponge Platform to request Professional Services solely with respect to a location where the Requester is legally authorized to have Professional Services performed. Requesters may not use the Pink Sponge Platform for any other purposes or in connection with any commercial endeavors whatsoever without our express prior written consent. Requesters agree to treat Professionals courteously and lawfully, to provide a safe and appropriate working environment for them that is in compliance with all applicable laws and regulations, and to provide reasonable co-operation to Professionals to enable them to supply Professional Services. Requesters agree to comply with our complaint and other policies designated on the Site. Requesters acknowledge that their selected Professional may be unavailable from time to time. You shall NOT use the Pink Sponge Platform (including but not limited to any Submission Areas) to do any of the following:
a. Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
b. Upload files that contain software or other material that violates the intellectual property rights or rights of privacy or publicity of any third party.
c. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including but not limited to our staff and other Users.
d. Post a review or rating unless such review or rating contains your independent, honest, genuine opinion.
e. Use the Pink Sponge Platform or any Professional Service for any purpose or in any manner that is in violation of local, state, national, or international law.
f. Publish, post, upload, distribute or disseminate any profane, defamatory, false, misleading, fraudulent, threatening or unlawful topics, names, materials or information, or any materials, information or content that involve the sale of counterfeit or stolen items.
g. Advertise or offer to sell any goods or services for any commercial purpose or solicit employment or contract work which is not relevant to services offered through the Pink Sponge Platform. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to Professional Services facilitated through the Pink Sponge Platform without express written permission from us.
h. Use the Pink Sponge Platform to collect usernames and/or email addresses of members by electronic or other means without our express prior written consent.
i. Conduct or forward surveys, contests, pyramid schemes, or chain letters.
j. Impersonate another person or allow any other person or entity to use your identification to post or view comments or otherwise use your account.
k. Post the same note repeatedly (referred to as 'spamming'). Spamming is strictly prohibited.
l. Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the Pink Sponge Platform, or post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
m. Restrict or inhibit any other User from using and enjoying the Pink Sponge Platform.
n. Imply or state that any statements you make are endorsed by us, without our prior written consent.
o. Reverse engineer, disassemble, decompile, translate, modify, adapt, license, sublicense, alter, copy, distribute, hack or interfere with the Pink Sponge Platform, its servers or any connected networks, use a robot, spider, manual and/or automatic processes or devices to data-mine, data- crawl, scrape or index the Pink Sponge Platform in any manner, or attempt to do any of the foregoing.
p. Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
q. Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
r. Upload content that provides materials or access to materials that are obscene, adult or sexual or that exploit anyone, and in particular people under the age of 18, in an abusive, violent or sexual manner.
s. Register to use the Pink Sponge Platform under different usernames or identities, after your account has been suspended or terminated.
t. Mirror or archive any part of the Pink Sponge Platform or any content or material contained on the Pink Sponge Platform without Pink Sponge's written permission.
u. Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting or providing false or misleading representations in the sender information, subject line, locator, or content of any electronic message.
v. Alter transmission data without Pink Sponge's consent
w. Purchase Merchandise for the purposes of reselling it.
8. No Employment. Pink Sponge provides a software platform which allows you to obtain certain home services that Pink Sponge fulfills using independent Professionals. Pink Sponge is not the employer of any Professional and Professionals are not Pink Sponge�s agents for any purpose whatsoever. You acknowledge that we do not supervise, direct, or control a Professional's work or Professional Services performed in any manner.
9. Special Promotions; Gift Cards and Vouchers.
a. Changes to Promotions. We may from time to time provide certain promotional opportunities to Requesters. All promotions will be run at our sole discretion, and can be activated, modified or removed at any time by us without advance notification.
b. Promotional Coupons
i. Promotional coupons are only eligible for the specific services designated by Pink Sponge. Promotional coupons are valid for a limited time only and expires on the date indicated when you receive the applicable promotional coupon. Failure to use promotional coupons before such expiration date will result in the forfeiture of the promotional coupon. Pink Sponge reserves the right to cancel promotional coupons at any time. No refunds will be granted for any expired or canceled promotional coupons
ii. Pink Sponge promotional coupons have no intrinsic value, are not redeemable for cash, have no cash value, and serve merely as a means to recognize and provide an incentive to use the Pink Sponge Platform. Promotional coupons may not be purchased for cash and Pink Sponge does not sell promotional coupons. Promotional coupons are nonrefundable.
iii. Promotional coupons will not be applied against any sales, use, gross receipts or similar transaction based taxes that may be applicable to you, and/or fees or charges for use of any ineligible services.
iv. Your Pink Sponge account will be billed for all fees and charges for use of any ineligible services. Each promotional coupon can only be used once and your Pink Sponge account will be
billed for all fees and charges for use of any eligible service in excess of the amount of available promotional coupon.
c. Referral Discounts. In the event that you are given a code through which you may refer a friend to the Pink Sponge Platform in exchange for a referral discount, you shall not use any online marketing or advertising to promote such code or to artificially increase the amount of credits awarded. By way of example, you may not post, or cause, request or permit a third party to post any such code on a coupon website, nor use any paid search marketing, online advertising, forum posting, newsgroup posting or bulk email to disseminate such code. You may only share such code with your personal friends and acquaintances for legitimate referral purposes, as determined by us in our sole discretion. Pink Sponge referral discounts are redeemable only for Professional Services. Pink Sponge referral discounts have no cash value and are not redeemable for cash unless otherwise required by law. Without limiting our other rights and remedies, we may terminate such code and/or your account for any breach of this Section. For questions or additional information, contact us at www.Pink Sponge.com/contact-us
i. Pink Sponge vouchers or promotional codes for special offers or discounts ("Vouchers") may be available and can be used to pay in part or in full for Professional Services.
ii. You agree that you will only use one Voucher per person and will use Vouchers in accordance with the Voucher terms and conditions.
iii. You agree that you will comply with all Voucher terms and conditions.
iv. Use of Vouchers is further subject to the below terms and conditions regarding Gift Cards
e. Gift Cards
i. Pink Sponge Gift Cards ("Gift Cards") are redeemable only for Professional Services. Gift Cards have no cash value and are not redeemable for cash unless otherwise required by law.
ii. Gift Cards must be presented at the time of purchase and any available balance will be applied to your purchase.
iii. Gift Cards do not expire and there are no inactivity, dormancy or service fees associated with Gift Cards.
iv. You agree that you will comply with all Gift Card terms and conditions.
v. Gift Cards are not replaceable if lost or stolen, and cannot be combined with any other Gift Cards, Vouchers, gift certificates, or other coupons.
vi. Gift Cards cannot be used for previous purchases, credits, or the purchase of Gift Cards, and cannot be used to make a payment towards third party items the balance on a credit card.
vii. We reserve the right to limit quantities of Gift Cards purchased by any person or entity and to cancel a Gift Card if we believe that the Gift Card was obtained through fraudulent or unauthorized means. Specifically, you may not purchase or obtain more than $10,000 in Gift Card value in any one day regardless of location, whether on a single Gift Card or multiple Gift Cards. Moreover, you may not purchase or obtain any one Gift Card with a value of more than
$2,000 in any one day.
viii. No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Card. Unused Gift Card balances are not transferable, and you may not sell a Gift Card or otherwise barter for its exchange although you may give a Gift Card to someone else as a gift.
ix. A Gift Card is void if copied, altered, transferred, purchased or sold.
x. Purchases of Gift Cards are final and not refundable. All sales are final
xi. We reserve the right to correct the balance of a Gift Card if we believe that a billing error has occurred, and we disclaim all liability for any such billing errors.
xiii. In the event you do not use your Gift Card for a certain period of time, we may be required to turn over the remaining Gift Card balance to a state under such state's unclaimed or abandoned property law. Although your Gift Card does not expire, if we are obligated to turn over the remaining balance of your Gift Card under a state's unclaimed property law, by operation of law we will be released from any further liability or obligation with respect to your Gift Card and you may be required to contact the state's unclaimed property administrator to attempt to recover your unused Gift Card balance. To protect your right to continue to use your remaining Gift Card balance, we will make reasonable efforts to exempt your Gift Card from state unclaimed property laws.
10. Intellectual Property Rights. The Pink Sponge Platform, and the information, data, content and materials, which it contains ("Pink Sponge Materials"), are the property of Pink Sponge and/or its affiliates, subsidiaries, parents and licensors, excluding User-generated content, which Pink Sponge has a right to use as described below. The Pink Sponge Materials are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Pink Sponge and/or its affiliates, subsidiaries, parents and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the Pink Sponge Materials. Any use of Pink Sponge Materials, other than as expressly permitted herein, is prohibited without the prior permission of Pink Sponge and/or the relevant right holder. The service marks and trademarks of Pink Sponge, including without limitation Pink-Sponge.com and the Pink Sponge logo are service marks owned by Pink Sponge. Any other trademarks,
service marks, logos and/or trade names appearing on the Pink Sponge Platform are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the Pink Sponge Platform without the express prior written consent of the owner.
11. Copyright Complaints and Copyright Agent. Pink Sponge respects the intellectual property of others, and expects Users to do the same. Pink Sponge will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided on or in connection with the Pink Sponge Platform infringe upon that person's or entity's copyright or other intellectual property right (such person or entity, a "Complainant") and sends to Pink Sponge a properly submitted copyright notice as indicated below, Pink Sponge will investigate, and if it determines, in its discretion, that the material is infringing, Pink Sponge will remove the content and may terminate the access of the User who posted such content to the Pink Sponge Platform in the case of repeat infringers. All notices claiming an infringement of copyright rights must contain the following:
(i) Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the Complainant's ownership of the work, should be included.
(ii) A statement specifically identifying the location of the infringing material, with enough detail that Pink Sponge may find it on the Pink Sponge Platform. Please note: it is not sufficient to merely provide a top level URL.
(iii) The complete name, address, telephone number and email address of Complainant.
(iv) A statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law.
(v) A statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed; (vi) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed.
Pink Sponge's contact information for notice of alleged copyright infringement is: Email: Customercare@pink-sponge.com
12. The App / Mobile Devices
a. The Pink Sponge Platform may allow you to access our services, download our Apps, upload content to the Pink Sponge Platform, and receive messages on your mobile device (collectively "Mobile Features"). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data, and
other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
b. You acknowledge that your use of the Apps is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS or Android).
c. Pink Sponge is not liable if you do not have a compatible mobile device or if you download the wrong version of an App for your mobile device. Pink Sponge reserves the right to terminate the use of the Apps or any other aspect of the Pink Sponge Platform should you be using the Apps or the Pink Sponge Platform with an incompatible or unauthorized device.
d. App Store Sourced Application.
(i) With respect to Apps accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple's proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Pink Sponge reserves all rights in and to the Apps not expressly granted to you under this Agreement.
(ii) You acknowledge and agree that (i) this Agreement is valid between you and Pink Sponge only, and, that Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) Pink Sponge, not Apple, is solely responsible for the App Store Sourced Application and the Pink Sponge Platform Content.
(iii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application.
(iv) To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced Application.
(v) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and Pink Sponge, Pink Sponge and not Apple is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vi) Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party's intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(vii) You acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement for App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement for App Store Sourced Applications against you as a third-party beneficiary thereof.
(viii) Without limiting any provisions of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
13. Pink Sponge Spot Rewards. Upon signing up to use the Pink Sponge Platform, Requesters will be eligible to receive Spot Rewards and other special offers, from time to time. The number, type and frequency of Spot Rewards are based on a number of factors, each of which are subject to change, without notice. Those factors may include, without limitation, volume of bookings, number of visits and frequency of visits to our website, interaction with our website or the nature of your purchases. Spot Rewards are rewards issued on a periodic basis for promotional purposes.
Spot Rewards may appear with different descriptions from time to time. The Spot Rewards may include Pink Sponge merchandise credits, third-party gift cards and are subject to change. Such rewards are provided in Pink Sponge's sole and absolute discretion, may be offered for a limited time, while supplies last, and provided on a first-come, first-served basis. Quantities of each reward are limited and you must have a valid account in order to redeem spot reward offers.
Spot Rewards have no intrinsic value, are promotional in nature, have no cash value, may have certain restrictions including expiration dates and short, time-limited redemption periods, and serve merely as a means to recognize and reward Requestors using the Pink Sponge Platform. Spot Rewards are personal to you and cannot be shared, copied or transferred. Spot Rewards are nonrefundable and non-exchangeable between accounts. Each Spot Reward can only be redeemed once. Your account will be billed for all fees and charges for use of any Professional Services in excess of the amount of available Spot Reward.
You must be signed in to your account to be eligible to earn Spot Rewards. Spot Rewards applied from any single qualifying purchase or activity may only be credited to your account. It may take twenty-four (24) hours or more for your account to be credited. Pink Sponge shall not be responsible for, or liable to, you, or any person or entity, in any way for any losses, costs or expenses incurred by a delay, error or omission in crediting a qualifying purchase or activity to your account. Pink Sponge is not responsible for lost, stolen or damaged rewards or taxes incurred in connection with the rewards. Spot Reward may not be used in conjunction with any other promotional or incentive offer from Pink Sponge or any of its affiliates, subsidiaries, parents. Spot Reward are void in the event of fraud, misuse, or violation of any terms of the Agreement, or if sold for cash or other consideration. Some rewards may only be available to residents of a certain state. Pink Sponge reserves the right to change, modify or update its Spot Reward and the qualifying purchases and activities from time to time without notice. Spot Reward may be subject to additional terms; read each offer carefully for specific details, limitations and restrictions. Failure to use Spot Reward spot before such expiration date will
result in the forfeiture of the Spot Reward. Pink Sponge reserves the right to cancel Spot Reward at any time. No refunds will be granted for any expired or canceled Spot Reward.
14. Lockbox and Pink Sponge Vault Lockbox
a. Use of Lockbox. Pink Sponge sources or provides lockboxes to eligible Users based on geography and booking appointment history. However, Pink Sponge is only sourcing or providing Users with lockboxes. Pink Sponge has no information about the lockbox codes except for the information inputted by User via the Pink Sponge Platform at User's option. Pink Sponge strongly recommends changing the lockbox code after each service. User assumes full responsibility for changing the lockbox code after each service and protecting the identity of the lockbox code from third-parties. User further covenants and agrees that you will not misuse or abuse the lockbox in anyway.
b. No Control. Once User acquires possession of the lockbox, Pink Sponge has no immediate or direct physical control over the use of the lockbox and assumes no liability for lockbox failure, or any delays caused by lockbox failure or consequential damages.
c. Key Access. For your security, Pink Sponge depends on User to provide and maintain accurate access inputs via the Pink Sponge Platform and will only reveal those inputs to Professionals who claim User's bookings appointments. Once your key is placed in the lockbox, you agree that your key may be accessed only by you and/or a Professional. You agree that you will not provide lockbox codes and/or access to any third-parties.
d. Permitted and Prohibited Uses. User agrees to only use the lockbox for lawful purposes. You agree to use the lockbox only in a manner consistent with any and all applicable laws, regulations, and Pink Sponge's policies and procedures. Pink Sponge reserves the right to investigate and take action against any User who, in Pink Sponge's sole discretion, violates this provision. Such action may include, without limitation, removing User from the Pink Sponge Platform.
Pink Sponge Vault
Pink Sponge utilizes KeyCafe, a third-party service, to store a User's key(s). By opting in and agreeing to use Pink Sponge Vault, User agrees (i) to provide Pink Sponge with a copy of his or her key(s), (ii) allow Pink Sponge to store User's key(s) in a KeyCafe kiosk, (iii) to allow Pink Sponge to share information with KeyCafe pertaining User's key(s), (iv) that User will not have access to his or her key(s) through KeyCafe by participating in Pink Sponge Vault, and (v) that Pink Sponge employees and Professionals will have ongoing access to User's key(s). User acknowledges and agrees that Pink Sponge is not responsible for the loss of User's key(s) during the use of Pink Sponge Vault. Upon request through Pink Sponge's Help Pink Sponge will mail User's key(s) back within 14 days.
15. Modifications to the Pink Sponge Platform. We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Pink Sponge Platform or any content or information on the Pink Sponge Platform with or without notice. We will not be liable to any party for any modification or discontinuance of the Pink Sponge Platform.
16. Confidentiality. The term "Confidential Information" shall mean any and all of Pink Sponge's trade secrets, confidential and proprietary information, personal information and all other information and data of Pink Sponge that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. The Pink Sponge Platform contains secured components that are accessible only to those who have been granted a username and password by Pink Sponge. Information contained within the secure components of the Pink Sponge Platform is confidential and proprietary. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Pink Sponge and agree that you will not use Confidential Information other than as necessary for you to make use of the Pink Sponge Platform as expressly permitted by this Agreement and only during the term of this Agreement. You will not disclose or transfer (or seek to induce others to disclose or transfer) any Confidential Information for any purpose. You shall promptly notify Pink Sponge in writing of any circumstances, which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall implement reasonable technical, physical and administrative safeguards to protect Confidential Information from loss or theft, as well as unauthorized access, disclosure, copying, transfer, modification or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Pink Sponge upon termination of this Agreement for any reason whatsoever.
17. Disclaimer of Warranties; Limitation on Liability.
a. USE OF THE PINK SPONGE PLATFORM IS ENTIRELY AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PINK SPONGE PLATFORM IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER PINK SPONGE NOR ITS AFFILIATES, PARENTS, SUBSIDIARIES OR LICENSORS WARRANT THAT THE PINK SPONGE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO ANY CONTENT AVAILABLE IN OR THROUGH THE PINK SPONGE PLATFORM; NOR DO THEY MAKE ANY WARRANTY AS TO ANY PROFESSIONAL'S REGISTRATION, PROFESSIONAL ACCREDITATION OR LICENSE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PINK SPONGE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, QUALITY, SUITABILITY, SAFETY, COMPLETENESS OR CONTENT OF THE SERVICES, PROFESSIONAL SERVICES, ANY PRODUCTS, MERCHANDISE, CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE PINK SPONGE PLATFORM OR THIS AGREEMENT. ACCESS TO THE PINK SPONGE PLATFORM IS PROVIDED FREE OF CHARGE AS A COURTESY. NEITHER PINK SPONGE NOR ITS AFFILIATES, PARENTS,
SUBSIDIARIES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PINK SPONGE PLATFORM. NEITHER PINK SPONGE NOR ITS AFFILIATES, PARENTS, SUBSIDIARIES OR LICENSORS WARRANT THAT THE PINK SPONGE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. PINK SPONGE AND ITS AFFILIATES, SUBSIDIARIES, PARENTS AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
b. NO LIABILITY. YOU AGREE NOT TO HOLD PINK SPONGE, ITS AFFILIATES, ITS PARENTS, ITS SUBSIDIARIES, ITS LICENSORS, OR ANY OF SUCH PARTIES' AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, "MEMBERS") LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, "LIABILITIES") THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE PINK SPONGE PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND LOSS OR DESTRUCTION OF PERSONAL PROPERTY), SERVICES, ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY PINK SPONGE OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL PINK SPONGE OR MEMBERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PINK SPONGE PLATFORM OR ANY PROFESSIONAL SERVICES OR MERCHANDISE, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. EXCEPT AS EXPRESSLY PERMITTED UNDER THE TERMS OF THE PINK SPONGE'S HAPPINESS GUARANTEE, UNDER NO CIRCUMSTANCES WILL PINK SPONGE OR MEMBERS BE LIABLE FOR ANY DIRECT DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PINK SPONGE PLATFORM OR ANY PROFESSIONAL SERVICES OR MERCHANDISE, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. EXCEPT AS EXPRESSLY PERMITTED UNDER THE TERMS OF THE PINK SPONGE'S HAPPINESS GUARANTEE. PINK SPONGE AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE PINK SPONGE PLATFORM, THE PROFESSIONAL SERVICES, THE MERCHANDISE OR THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT PINK SPONGE OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LESSER OF (1) TOTAL FEES PAID BY YOU TO PINK SPONGE DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM
AROSE. OR (2) THE AMOUNT EXPRESSLY PERMITTED UNDER THE PINK SPONGE HAPPINESS GUARANTEE AS SET FORTH IN SECTION 3(d).
c. RELEASE. PINK SPONGE AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE PINK SPONGE PLATFORM. TO THE EXTENT THAT THE PINK SPONGE PLATFORM CONNECTS A USER TO A THIRD PARTY PROVIDER FOR THE PURPOSES OF PROVIDING OR OBTAINING MERCHANDISE HEREUNDER, PINK SPONGE WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE PINK SPONGE FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY SERVICE PROVIDER. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE PINK SPONGE AND MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
d. ADDITIONAL DISCLAIMER. YOU UNDERSTAND, THEREFORE, THAT BY USING THE PINK SPONGE PLATFORM, YOU MAY BE EXPOSED TO PROFESSIONAL SERVICES AND/OR MERCHANDISE THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE PINK SPONGE PLATFORM, AND SUCH PROFESSIONAL, AT YOUR OWN RISK.
NOTHING IN THIS AGREEMENT OR THE PINK SPONGE PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
BY USING THE PINK SPONGE PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE PINK SPONGE PLATFORM.
YOU ACCEPT THAT, AS A CORPORATION, PINK SPONGE HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST PINK SPONGE'S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION
WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE PINK SPONGE'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AFFILIATES, PARENTS, SUBSIDIARIES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS PINK SPONGE.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
18.Indemnification. You hereby agree to indemnify, defend, and hold harmless Pink Sponge, its licensors, and each such party's directors, officers, parents, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys' fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use the Pink Sponge Platform, any Merchandise and/or any Professional Service, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including but not limited to Professionals), and (v) Your Information and content that you submit or transmit through the Pink Sponge Platform. Pink Sponge reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of Pink Sponge.
19.Mutual Arbitration Agreement.
a. Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and Pink Sponge, including without limitation any dispute or claim related to or arising out of this Agreement ("Dispute"), you and Pink Sponge may attempt to negotiate any Dispute informally (the "Informal Negotiations") before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this section is your email address and/or physical address that you have provided to Pink Sponge. Pink Sponge's address for such notices is: at 1343 E. Gladstone St. Suite 300 Glendora, CA 91740.
b. Arbitration. If a Dispute is not resolved through Informal Negotiations, you and Pink Sponge agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration ("Arbitration Agreement"). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org).
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, Pink Sponge will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the "Class Action Waiver" described in Section d below.
c. Excluded Disputes. You and Pink Sponge agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and
(4) any claim for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Arbitration Agreement may be rendered ineffectual.
d.WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION.
You and Pink Sponge agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
e. Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator's decision/award.
f. Severability. You and Pink Sponge agree that if any portion of this section entitled "Mutual Arbitration Agreement" is found illegal or unenforceable, that portion will be severed and the remainder of this section 19 will be given full force and effect.
20.Governing Law; Jurisdiction. Except for the Arbitration Agreement in Section 19, which is governed by the Federal Arbitration Act and except as may be prohibited by the law of the State in which you primarily reside, this Agreement is governed and interpreted pursuant to the laws of the State of New York, United States of America, notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, You agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the county of New York, New York.
21.Assignment. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void.
This Agreement shall inure to the benefit of permitted successors and assigns.
22.General Provisions. All provisions that should by their nature survive the expiration or termination of this Agreement, including without limitation, Sections 8, 10 and 14-24, shall so survive. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. A failure by us to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Pink Sponge with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement. You agree that regardless of any statute or law to the contrary, any Dispute, claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such Dispute, claim or cause of action arose or be forever barred. All notices provided by a party in connection with this Agreement will be deemed given as of the day they are received either by email, messenger, delivery service, or in the U.S. Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: Your address for such notices is your email address and/or physical address that you have provided to Pink Sponge. Pink Sponge's address for such notices is 1343 E. Gladstone St. Suite 300 Glendora, CA 91740
The captions in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This Agreement shall not be modified except in writing signed by both parties or by means of a new posting by Pink Sponge, as described below. This Agreement shall be interpreted as if jointly drafted by the parties. Pink Sponge shall have no liability to you for any failure or delay in performing its obligations in this Agreement where such failure or delay is caused by an event or circumstance beyond Pink Sponge's reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, failure of Professionals to perform, flood, fire, explosion, acts of terrorism or accident.
23.Changes to this Agreement. We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Pink Sponge Platform. Your continued use of the
Pink Sponge Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
24.Severability These Terms shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
25.Contact Information. If you have any questions regarding this Agreement, please contact us 1343 E. Gladstone St. Suite 300 Glendora, CA 91740
Last updated: December 24, 2019