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When you ("You" or "User")
use this Internet web site (or any
co-branded versions of this web site)
("Site"), You agree to
the following terms and conditions
(the "Use Agreement").
Emerio (or "We") may revise
these terms from time to time, at our
sole discretion, by updating this posting.
Unless otherwise provided below, the
revised terms will take effect when they
are posted.
Our services are available
only to individuals who can form legally
binding contracts under applicable law.
You may use this site and the services
available here during the time You are
a registered user.
We may modify or discontinue
this Site and the services available
at it without notice or liability to
You.
The Site functions
as a venue to connect buyers and service
providers in a virtual marketplace. As
a neutral facilitator, Emerio is not
directly involved in the actual transactions
between users of the Site. As a result,
Emerio has no control over the truth,
accuracy, quality, legality, or safety
of postings made by users. Because verifying
the identity of a user on the Internet
is difficult, Emerio cannot and does
not confirm the identity of users. Emerio
also does not confirm nor verify the
qualifications, background, or abilities
of users. Therefore, We recommend that
You be careful and exercise common sense
and good judgment when dealing with any
User on the Site. Because Emerio assists
service providers in finding buyers in
need of services, Emerio is considered
the official finder for each project
accepted through the site and its associated
buyer and charges a transaction fee.
Emerio service providers and buyers are
responsible for meeting payroll, tax
and legal requirements for any legal
entity.
Emerio does
not guarantee leads or projects.
Your correspondence
with merchants, advertisers, or users
on the Site, including the development
and delivery of related goods or services,
and any other terms, conditions, warranties
or representations associated with such
dealings, are solely between You and
such merchant, advertiser, or user. You
agree not to hold Emerio liable for any
loss or damage of any sort incurred as
the result of any such dealings or as
the result of the presence of such merchants,
advertisers, or users on the Site.
The Site has two components: the Basic
Marketplace, "Emerio Basic," and
the Select Marketplace, "Emerio
Select." This Use Agreement applies
equally to each component, unless clearly
designated. Emerio Select contains Select
projects and Select service providers,
all of which are denoted by the "Select" icon
and other identifying characteristics.
Only Select service providers are allowed
to bid on projects posted in Emerio Select
and post comments to the public project
message boards in Emerio Select. (See
the section entitled "Select Service
Provider Requirements" for the requirements
to become a Select service provider.)
Basic providers and Select providers
may bid on projects in the Basic Marketplace,
post comments to the Basic marketplace
project message boards and post comments
in Emerio's Community Boards. (Basic
and Select providers have agreed to this
Use Agreement and agree to pay all relevant
fees.) Limited Users (users who register
on the site but do not pay any fees)
cannot bid on projects.
Emerio may make available
to users on the Site various services
provided by third parties ("Verification
Service Providers") which verify
a User's identity or credentials. Use
of the services provided by Verification
Service Providers in the Basic Marketplace
is voluntary. To become a Select service
provider, users must be authenticated
by the applicable Verification Service
Provider. See the section entitled "Select
Service Provider Requirements" for
details.
Emerio is a distributor (and not a publisher)
of content supplied by any third parties
(including but not limited to Verification
Service Providers) and users of this
Site. Emerio has no editorial control
over such content. Any opinions, advice,
statements, services, offers, or other
information or content expressed or made
available by third parties, including
information providers, users and Verification
Service Providers, are those of the respective
author(s) or distributor(s) and not of
Emerio. Emerio neither endorses nor is
responsible for the accuracy or reliability
of any opinion, advice, information or
statement made on this Site by anyone
other than authorized Emerio employees
acting in their official capacities.
Emerio does not confirm or verify if
a service provider claiming to be a professional
or claiming to be qualified to provide
professional advice is in fact licensed
or otherwise qualified to provide the
services or advice being requested. You
understand and acknowledge that Emerio
is not responsible for and does not monitor
content for accuracy or reliability.
Emerio charges subscription
fees to be a service provider. Subscription
may be paid monthly, quarterly or annually,
with discounts given for quarterly and
annual subscriptions in exchange for
up-front payment and commitment to the
full payment plan. Payments may be made
via credit card or the User's Stored
Value Account if the user has agreed
to the Payment and Billing Service Terms
of Use Agreement, incorporated below.
The billing period begins on the date
that Emerio receives the User's Payment
to become a Select or Basic provider
and monthly, quarterly and annual periods
are calculated from the beginning of
that billing period.
Monthly, quarterly
and annual subscription fees are automatically
renewed, unless cancelled by User. If
a User pays by credit card, Emerio will
automatically charge the monthly, quarterly
or annual fee to the User's supplied
credit card and You authorize Us to charge
such credit card for the appropriate
subscription fees and amounts stated.
If the User pays via the Stored Value
Account, Emerio will deduct the appropriate
subscription fee from the User's Stored
Value Account each month, quarter or
each year, whichever is applicable. Emerio
reserves the right to increase subscription
fees or to institute new fees at any
time, upon reasonable notice posted in
advance on this Site. The renewal charges
will be the same as the regular subscription
fees as described above, unless otherwise
notified in advance. Users may upgrade
from Basic provider to Select provider
status at any time and the unused portion
of Basic subscription fee will be credited
toward the Select fees. The billing cycle
is then based upon the date Emerio receives
payment of the Select fees. Users changing
to quarterly or annual subscriptions
will have their new rates take effect
at the beginning of the next billing
date. Adding additional Select bundles
or categories will result in a new billing
date effective upon the date of payment
of the additional fees and, if applicable,
will result in a credit of the unused
portion of the existing Select bundle
or category.
Downgrades to a shorter
payment plan or cancellation of any subscription
will not result in any refund or credit
of fees already paid. Select and Basic
subscription fees, whether paid monthly,
quarterly and annually, are charged up-front
and no refunds or credits will be given
upon cancellation. The cancellation of
a subscription will go into effect at
the end of your current billing cycle.
Additional fees may apply if you decide
to resubscribe at a later date.
A monthly allotment of free bids is included
with each subscription. This monthly
allotment starts on the same day of the
subscription Eastern Standard Time, and
renews every 30 days. Unused bids are
forfeited at the end of the 30-day period
and will not be carried over into the
next month. Service providers will be
charged a bid fee for bids in excess
of this monthly allotment. Bid fees are
based on the category and tier of the
project on which the bid is placed. These
bid fees will be due at the end of each
30 day period or upon a service provider
reaching a maximum credit limit as determined
by Emerio and outlined on the site. The
invoice will need to be paid before a
service provider can continue bidding
on projects. Payments may be made via
credit card or the User's Stored Value
Account if the user has agreed to the
Payment and Billing Service Terms of
Use Agreement, incorporated below. Emerio
reserves the right to change the monthly
allotment of free bids, change the price
for bids, or institute new fees at any
time, upon reasonable notice posted in
advance on this Site. No refunds of fees
already paid will be given.
Select service providers
have agreed to the Select Professional
Standards and Select Authentication Requirements
as outlined on the site.
After payment of the Select provider
subscription fee and before and pending
approval from the Verification Service
Provider, applicants will be on a grace
period as a Select Provider. If the applicant
fails authentication by the Verification
Service Provider required by the program,
the applicant will lose his or her temporary "Select" status
and become a Limited User. If the failure
is due to the applicant's errors or omissions,
then Emerio will not refund the Select
provider fees already paid. If the failure
is due to an error or issues on the part
of the Verification Service Provider
or is otherwise not the fault of the
applicant, then the user must report
this problem to Emerio in a timely manner.
Emerio then will refund the applicant's
Select subscription fees on a pro-rata
basis, from the date of removing the
Select provider icon. Refunds resulting
from verification failure will be determined
by Emerio, at its sole discretion, on
a case-by-case basis. (These criteria
are subject to change. If additional
requirements are added, the provider
must meet them in order to retain Select
provider status.)
As a User, you will
be able to post public feedback about
Users with whom you have transacted.
You also agree to receive public feedback
from Users with whom you have transacted.
You acknowledge that your feedback may
consist of comments and ratings left
by other users and that Emerio may calculate
a composite feedback number based on
these individual ratings. Service providers
agree to be rated by buyers along several
criteria, as determined by Emerio. Emerio
provides its feedback and rating system
as a means through which users can express
their opinions publicly, and Emerio does
not monitor or censor these opinions
or investigate any remarks posted by
users for accuracy or reliability. Please
note that you may be held legally responsible
for damages suffered by other Emerio
users or third parties as a result of
these remarks if a court finds that these
remarks are legally actionable or defamatory.
Under federal law, Emerio is not legally
responsible for any feedback or comments
posted or made available on its site
by any users or third parties, even if
that information is defamatory or otherwise
legally actionable. You agree NOT to
take any actions that undermine the integrity
of the feedback system, including but
not limited to those outlined in the
Feedback Policy.
As a User, You will
be allowed to post information, data
and text to publicly accessible and limited-access
areas (including but not limited to the
private "Workspace" areas and
Emerio Select) of the Site. You are not
allowed to post logos, seals or slogans
from third parties on any part of the
Site unless they are provided by Emerio
or an Emerio partner, such as a Verification
Service Provider, or You have sought
and received express permission from
Emerio to display such logo, seal or
slogan. (Direct all such inquiries to
Customer Service.)
In order to operate the Site, Emerio
must have certain rights. Consequently,
when You post information, text, files,
links, attachments, software or other
materials ("Content") to publicly
visible areas of the Site, including
Emerio Select, You are granting, or warranting
that the owner of such Content has expressly
granted, a worldwide, royalty-free, perpetual,
irrevocable, fully sub-licensable, non-exclusive
right to use, reproduce, modify, transmit,
distribute, perform, display and delete
such Content (in whole or in part) and/or
to incorporate such Content in other
works in any form, media or technology
now known or later developed.
You must use good judgment when posting
information, remarks or other Content
regarding other users, service providers,
Emerio or any other third party. You
may be held legally responsible for damages
suffered by other Users, Emerio or third
parties as a result of legally actionable
or defamatory comments, remarks or other
information or Content which You post
to the Emerio Site. Under federal law
(specifically, the Communications Decency
Act of 1996), Emerio is not legally responsible
for any remarks, information or other
Content posted or made available on its
Site by any User or third party, even
if such information or Content is defamatory
or otherwise legally actionable. Emerio
is not responsible for and does not monitor
or censor Content for accuracy or reliability.
However, Emerio reserves the right to
remove or restrict access to any information
or Content posted or made available on
its Site by its users or any third party
if ordered to do so by a court or if
Emerio considers such information or
Content to be in violation of its Use
Agreement or posted rules or policies,
including information or Content We consider
to be obscene, lewd, lascivious, filthy,
excessively violent, harassing, illegal,
overly disparaging or deprecating of
Emerio or other users or otherwise objectionable.
You also agree to all Emerio policies
on the release of contact information
between users, as described herein and
elsewhere on the Site. You are restricted
from releasing your telephone number,
email address, URL and other such contact
information to other users of the Emerio
Site until such time as You agree to
make a transaction with another user.
At that time, You may release your contact
information to that user only.
You agree to provide
true, accurate and complete information
as prompted by the registration form,
and maintain and update such information
to maintain its truth, accuracy and completeness.
Whenever You post any information on
or to the Site (including but not limited
to posting a request for services, bidding
on a posted project, and/or posting your
profile), You agree to provide true,
accurate and complete information. Emerio
reserves the right to terminate Your
account upon the discovery that the information
You provided or posted is not complete
or accurate.
Further, your Emerio account (including
feedback) and User ID may not be transferred
or sold to another party.
You must safeguard
the User ID and password You use to access
this Site. You authorize us to assume
that any person using the Site with Your
User ID and password either is You or
is authorized to act for You.
Emerio enables buyers
to transmit payment electronically for
services to the applicable service providers
to pay their transaction and subscription
fees through their Emerio Account. Please
review our Payment and Billing Service
Terms, which are incorporated into this
Use Agreement, and are part of the Use
Agreement.
Please see our Privacy
Agreement, which is incorporated herein
by reference. User Obligations
You agree NOT to do any of the following
while using the Site:
• Violate any applicable law or regulation;
• Access, tamper with or use non-public or non-authorized areas of the
Site. Unauthorized individuals attempting to access these areas of the Site may
be subject to prosecution;
• Tamper with postings of other users;
• Post logos, seals or slogans from third parties on any part of the Site
unless they are provided by Emerio or an Emerio partner;
• Solicit or gather any user's information available from the Site, such
as other users' names and email addresses, for any commercial or business purposes
or to transmit any unsolicited advertising, "junk mail", "spam" or "chain
letters;
• Do anything which would create or impose an unreasonable or disproportionately
large burden or load on the Site;
• Frame or link to the Site except as permitted in writing by Emerio;
• Impersonate or misrepresent Your affiliation with any person or entity.
• Post false or misleading information about a product, service or service
request;
• Post or transmit any Content that infringes a third party's intellectual
property rights or rights of publicity or privacy;
• Post or transmit any Content that is unlawful, untrue, fraudulent, harassing,
libelous, defamatory, abusive, tortious, threatening, pornographic, harmful (including
but not limited to viruses, corrupted files, or any other similar software or
programs), overly disparaging or deprecating of Emerio or other users or otherwise
objectionable;
• Violate any other policies stated on the site, such as those outlined
in the following Policies
o Feedback Policy
o General Content Policy
o Message Board Policy
o Project Policy
o Bidding Policy
• Repeat any action after you receive warning or request to desist from
Emerio, whether or not that action is explicitly stated in policies. This includes
continuing to use the Emerio service under the same account, a different account
or reregistering under a new account after your membership has been temporarily
suspended, indefinitely suspended or terminated.
• Fail to respond to an email from Emerio regarding violation, dispute
or complaint.
Buying and Selling Services on Emerio
You agree to:(a) be financially responsible
for Your use of Emerio and purchase of
services; (b) abide by Emerio's guidelines
on posting projects and bidding on projects,
which may be updated from time to time;
and (c) perform your obligations and
complete the transaction as specified
by the terms of your the posted project
and or your bid or Business Terms agreement,
whichever is more recent, once you have
selected a service provider or and the
service provider has accepted a project,
respectively, unless such transaction
is prohibited by law or by this Agreement.
Specifically, upon acceptance of a bid,
the buyer agrees to purchase the services
and the service provider agrees to provide
the services according to the terms of
the final bid or Business Terms agreed
to by the parties, subject to any further
increase or decrease in project scope.
If the scope of the project increases
beyond the final bid price after the
project begins, the parties are bound
to report that higher amount through
the Emerio invoicing system, as described
below, and Emerio's transaction fee will
increase proportionally to the contract
value.
Users are required
to send invoices through the Emerio system
for any projects initiated through Emerio.
For each project accepted on Emerio,
You agree to invoice all fees related
to services delivered for the project
via the Emerio invoice system. Invoices
can be sent individually and for part
amounts. (Services do not include 3rd
party software, hardware, reimbursed
expenses such as travel, meals and other
general disbursements and these amounts
do not need to be invoiced through Emerio.)
Failure to invoice through Emerio may
result in immediate suspension of User's
account.
Buyers are only obligated to pay invoices
for services purchased as a result of
posting a project on Emerio which are
sent to them through the Emerio invoice
system. Invoices that do not come through
Emerio, for services performed as a result
of a project posted on Emerio, should
be considered invalid by the buyer.
Circumvention of Emerio's Fee Structure
You agree not to engage in any action
or activities meant to circumvent our
site or our stated fees. Prohibited systems
or techniques include (but are not limited
to) the following:
• Services offered directly to the buyer and not through Emerio;
• Any agreement between buyer and seller to mislead or defraud Emerio by
conducting a transaction at different cost than the price agreed upon through
Emerio;
• Failing to report changed bid amounts or final project prices through
the Emerio invoice system;
• Placing low value or place-holder bids, with unreasonably high final
project charges;
• Posting contact information - email address, phone number, ICQ, your
URL or a URL that points to your contact information - in any public areas of
the site. Contact information may only be posted on a private message board shared
between a buyer and seller for a specific project after the buyer has chosen
the seller's bid and the seller has accepted the project. URLs of previous work
are permitted in public areas of the site
• Advertising, spamming or offering services to buyer outside of Emerio
without receiving request for contact from buyer.
• Suggesting/soliciting buyer contact you directly to buy services outside
of Emerio
• Any agreement (whether stated or implied) between buyer and service provider
to conduct future transactions outside of Emerio. Buyers and service providers
who make initial contact through Emerio are required to conduct any resulting,
follow-up or new transactions through Emerio for at least twelve (12) months
from the date that the first project is awarded by the buyer to the service provider.
This includes posting of the project on Emerio as well as invoicing the service-related
fees through Emerio.
Without limiting Emerio's
other remedies, We may issue a warning,
temporarily suspend, indefinitely suspend
or terminate your membership and refuse
to provide any services to You (a) if
You breach any terms and conditions of
this Use Agreement or the agreements
incorporated herein by reference, including
our written policies and procedures posted
on the Site; (b) if We are unable to
verify or authenticate any information
You provide to Us; or (c) if We believe
that your actions may cause legal liability
for You, our users or for Emerio. Once
temporarily suspended, indefinitely suspended
or terminated, you may not continue to
use the Emerio service under the same
account, a different account or reregister
under a new account. Violations of this
Use Agreement will be prosecuted to the
fullest extent of the law and may result
in additional penalties and sanctions,
as defined below.
To the extent any User engages in actions
or activities which circumvent the Emerio
Site or otherwise reduces transaction
fees owed Emerio under this Use Agreement,
that User shall be liable to Us for our
full fees due for the project and any
follow-up or additional work, as described
under "Fees charged by Emerio," below,
and may be subject to additional sanctions,
including immediate suspension or termination
of Emerio membership, and penalties of
up to twenty percent (20%) of the total
value of all projects circumvented, at
Emerio's sole discretion. We expressly
reserve the right to institute additional
penalties and fees for repeated violations
of the Use Agreement and/or our written
policies and procedures posted on the
Site.
Emerio will provide
notices by posting them on the Site and
You agree to check the Site for notices.
You also authorize Emerio to send notices
to You, at Emerio's discretion, via electronic
mail unless You otherwise indicate in
writing to customer service. Regardless
of whether Emerio sends an email notification,
You will be considered to have received
a notice when it is made available to
You by posting on the Site.
To cancel your subscription,
please contact customer service, (1-866-262-4478)
or certified mail at:
Emerio, Inc
1500 Bank St., Suite 501
Ottawa, Ontario
CANADA
Cancellation goes
into effect at the end of your present
billing cycle. No refunds can be given.
Please include your full name, your Emerio
username, phone number and address. Please
detail the nature of your request: How
many subscriptions you wish to cancel
(please specify Basic or Select). If
Select, name which categories. The current
term (Monthly, Quarterly, Yearly) of
each subscription you would like to cancel.
Additionally, for account security purposes,
please provide the following: the LAST
FIVE DIGITS OF THE CURRENT PAYMENT METHOD
USED FOR THIS ACCOUNT (For your security,
write only the last five digits. If you
are paying by your Emerio Account, please
specify the latest activity to your Emerio
Account.) and A PRINTOUT OF YOUR SUBSCRIPTION
DETAILS PAGE (only if you are cancelling
via fax or certified mail) http://secure.EmerioCanada.com/substatus
Your cancellation request will be effective
within 3 business days of receipt. Emerio
will send you an email confirmation once
your subscription has been cancelled.
You will not be liable for any additional
subscription fees after your cancellation
is effective. Please note that we will
not be able to process cancellation requests
unless all of the above information is
provided.
Users should be aware that Emerio is
not responsible for refunds due to lost
mail or delays caused by postal mail.
You may also contact Emerio Customer
Service from 10am to 7pm EST at 1-866-262-4478.
Select and Basic provider
subscription fees, whether paid monthly,
quarterly and annually, are charged
up-front and no refunds will be given
upon cancellation. The cancellation
of a subscription will go into effect
at the end of your current billing
cycle and no refunds of fees already
paid for that cycle will be given.
If Emerio does not receive a provider
subscription payment on the billing
cycle due date, Emerio will automatically
cancel the subscription. Additional
fees may apply if you decide to resubscribe
at a later date.
We may cancel Your membership if We reasonably
believe that You have violated or acted
inconsistently with the letter or spirit
of this Use Agreement, or violated our
rights or those of another party. Emerio
reserves the right to terminate any user
for any reason, at its sole discretion.
We will notify You if We cancel your
membership, unless in our judgment giving
notice would cause a risk of further
violation or damages. However, We will
notify You that Your account will be
canceled if the law requires such notification.
When Your membership is canceled, You
may no longer have access to data, messages,
files and other material You keep on
the Site. The material may be deleted
along with all Your previous posts and
bids. The provisions entitled "Errors
and Disclaimer of Warranties," "Indemnity," "Limitation
of Liability," "Audit Provisions
and Maintaining Records," "Reservation
of Rights," and "General Provisions" will
survive cancellation of Your registration.
If Emerio terminates this Use Agreement
based upon Your breach of any portion
of the Use Agreement, Emerio reserves
the right to refuse to provide registration
and/or membership to You in the future.
For a period of two
(2) years after accepting each project,
You will keep and maintain complete and
accurate information and records related
to each project and all new or follow-up
projects started for that project's buyer,
including the project description, the
bid and payment terms, and information
on all new or follow-up projects performed
for that buyer, necessary and sufficient
to calculate the applicable transaction
fees due to Emerio. In the event of a
dispute regarding the amount of transaction
fees due to Emerio, including a good-faith
belief by Emerio that the transaction
fees paid have been underreported or
are inaccurate, upon 30 days written
notice and request, Emerio shall have
the right to audit your records to determine
whether the full transaction fees due
Emerio have been paid by You. You will
provide copies of all records or other
documentation relevant to the calculation
of such amounts. You will promptly pay
to Emerio the amount of underpayment,
if any, disclosed by the audit or otherwise,
along with any monthly finance charges
applicable to the amount of the underpayment,
calculated at the rate of one and one-half
percent (1.5%) per month (or the highest
rate permitted by law, if less). Emerio
will pay all costs of such examination
and audit unless such audit discovers
a discrepancy of five percent (5%) or
more between the amount of transaction
fees paid to Emerio for the time period
in question and the amount of transaction
fees due to Emerio by You hereunder during
such time period, in which case You are
responsible for paying the reasonable
costs of the audit.
The Site contains
trademarks and other material furnished
by Emerio, its licensors, and other users.
You should assume that everything You
see or read in publicly viewable areas
of the Site that was not furnished or
received by You (such as images, photographs,
illustrations, text and other materials)
("Site Content") is copyrighted
unless otherwise noted. You may not sell,
reproduce, distribute, modify, display,
publicly perform, prepare derivative
works based on, repost or otherwise use
any of the Site Content in any way for
any public or commercial purpose without
prior written consent of Emerio or the
rights holder. You may not use the Site
Content on any other web site or in a
networked computer environment for any
purpose except your own personal viewing.
In order to protect Emerio's and its
Licensor's trade secrets, You agree that
You will not 'reverse engineer' any Site
Content consisting of downloadable software,
unless specifically authorized by the
trade secret owner or otherwise permitted
by law. If You violate any of these terms,
Your permission to use the Site Content
will automatically terminate; You must
immediately destroy any copies You have
made of the Site Content; and We may
revoke Your authorization to use the
Site.
This Site or any portion
of this Site may not be reproduced, duplicated,
copied, sold, resold, or otherwise exploited
for any commercial purpose that is not
expressly permitted by Emerio. Emerio
and its affiliates reserve the right
to refuse service, terminate accounts,
and/or cancel service requests or memberships
in its discretion, including, without
limitation, if Emerio believes that a
User's conduct violates applicable law
or is harmful to the interests of Emerio
and its affiliates.
Intellectual Property Policy
Emerio respects the intellectual property
of others and expects our account holders
to do the same. At our discretion and
in appropriate circumstances, Emerio
may terminate the accounts of users who
infringe upon the intellectual property
rights of others.
Pursuant to 17 United States Code 512(c)(2)
(Digital Millennium Copyright Act of
1998), Emerio's designated agent for
notice of alleged copyright infringement
appearing on our Site is:
Elance, Inc.
820 A Kifer Road
Sunnyvale, CA 94086
Phone: 408.524.8600
Fax: 408.524.4814
Email address: info@Elance.com
To file a notice of infringement with
us, one needs to fulfill the requirements
specified in Title II of the Digital
Millennium Copyright Act of 1998. The
text of this statute can be found at
the U.S. Copyright Office web site, http://lcweb.loc.gov/copyright/
(visited February 23, 1999).
The Site may contain
links to other web sites or resources.
You acknowledge and agree that Emerio
is not responsible or liable for (i)
the availability or accuracy of such
sites or resources, or (ii) the content,
advertising, or products on or available
from such sites or resources. The inclusion
of any link on the Site does not imply
that We endorse the linked site. You
use the links at Your own risk.
NEITHER
EMERIO NOR ANY OTHER PARTY INVOLVED IN
CREATING, PRODUCING, OR DELIVERING THE
SITE (INCLUDING, BUT NOT LIMITED TO,
THIRD PARTY APPLICATIONS AND SITE CONTENT)
SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR INDIRECT DAMAGES RESULTING
FROM YOUR ACCESS TO, OR USE OF, OR INABILITY
TO USE THE SITE AND THE SITE CONTENT,
WHETHER BASED ON WARRANTY, CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR ANY OTHER
LEGAL THEORY, AND WHETHER OR NOT WE KNOW
OF THE POSSIBILITY OF SUCH DAMAGE. IN
NO EVENT SHALL EMERIO'S LIABILITY TO
YOU OR ANY THIRD PARTY ARISING OUT OF
ANY USE OF THIS SITE EXCEED $10,000.00.
Because some jurisdictions do not allow
the exclusion or limitation of liability
for consequential or incidental damages,
the above limitation or exclusion may
not apply to You.
Emerio is not responsible for any liability
related to the completion, timeliness,
adequacy, and/or payment for services
listed on our Site. Any questions, complaints
or claims related to the completion,
timeliness, adequacy, and/or payment
for services should be directed to the
appropriate service provider.
If Your use of the Site results in the
need for servicing or replacing property,
material, equipment or data, We are not
responsible for those costs.
Emerio and its licensors
shall retain all of its right, title
and interest in and to all patent rights,
inventions, copyrights, know-how and
trade secrets relating to the Site. User
acknowledges that the Emerio logo and
name are trademarks of Emerio, and may
be registered in certain jurisdictions.
All other product names, company names,
marks, logos, and symbols on the Site
may be the trademarks of their respective
owners.
Except where expressly provided by Emerio,
nothing in this Use Agreement shall be
construed to confer any license under
any of Emerio's or any third party's
intellectual property rights, whether
by estoppel, implication, or otherwise.
Errors and Disclaimer of Warranties
YOU USE THE SITE
AT YOUR RISK. We endeavor to provide
a convenient and functional Site, but
We do not guarantee that it will be error
free or that the Site or the server that
operates it are free of viruses or other
harmful components. We urge You to keep
backup copies of material You maintain
on or use with the Site.
As mentioned above, We remind You to
be careful in Your dealings with other
users. Without limiting the foregoing,
EVERYTHING ON THE SITE (INCLUDING, BUT
NOT LIMITED TO, THIRD PARTY APPLICATIONS
AND SITE CONTENT) IS PROVIDED TO YOU "AS
IS" AND "AS AVAILABLE" WITHOUT
WARRANTY OR CONDITION OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OR
CONDITIONS OF TITLE, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT. Please note that some
jurisdictions may not allow the exclusion
of implied warranties, so some of the
above exclusions may not apply to You.
EMERIO MAKES NO WARRANTY THAT THE SITE
(INCLUDING, BUT NOT LIMITED TO, THIRD
PARTY APPLICATIONS AND SITE CONTENT)
WILL MEET USER'S REQUIREMENTS, OR THAT
THE SITE WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR FREE; NOR DOES EMERIO
MAKE ANY WARRANTY AS TO THE RESULTS THAT
MAY BE OBTAINED FROM THE SITE OR AS TO
THE ACCURACY OR RELIABILITY OF ANY INFORMATION
OBTAINED THROUGH THE SITE. EMERIO MAKES
NO WARRANTY REGARDING ANY GOODS OR SERVICES
PURCHASED OR OBTAINED THROUGH THE SITE
OR ANY TRANSACTIONS ENTERED INTO THROUGH
THE SITE. NO ADVICE OR INFORMATION, WHETHER
ORAL OR WRITTEN, OBTAINED BY USER FROM
EMERIO OR THROUGH THE SITE SHALL CREATE
ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend,
indemnify, and hold harmless Emerio,
its officers, directors, employees, agents
and partners, from and against any claims,
actions or demands, including without
limitation reasonable legal and accounting
fees, made by any third party due to
or resulting from Your use of the Site
or the Site Content, including without
limitation claims against Emerio for
unsatisfactory performance of services
listed on the Site, or Your violation
of this Use Agreement.
You are responsible
for compliance with applicable local
laws, keeping in mind that access to
the Site Content may not be legal by
certain persons or in certain countries.
If any part of this Use Agreement is
held to be unenforceable, the unenforceable
part shall be given effect to the greatest
extent possible and the remainder will
remain in full force and effect. This
Use Agreement is personal to You and
You may not transfer, assign or delegate
this Use Agreement to anyone without
the express written permission of Emerio.
Any attempt by You to assign, transfer
or delegate this Use Agreement without
the express written permission of Emerio
shall be null and void. This Use Agreement
and any registration for or subsequent
use of the Site will not be construed
as creating or implying any relationship
of agency, independent contractor, franchise,
partnership, or joint venture between
any User and Emerio.
This Use Agreement will be governed by
the law of California, U.S.A., without
regard to its conflicts of law provisions.
Any dispute related to this Use Agreement
will be settled in a binding arbitration
under the arbitration rules of the American
Arbitration Association. Any dispute
You may have with respect to this Site
must be commenced within one year after
it arises, or the cause of action is
barred
The paragraph headings in this Use Agreement,
shown in boldface type, are included
to help make the agreement easier to
read and have no binding effect.
The Use Agreement and the agreements
referenced in this Use Agreement
comprises the entire agreement
between You and Emerio with respect
to the use of the Site and supersedes
all prior agreements between
the parties regarding the subject
matter contained herein as well
as any conflicting or inconsistent
terms in any web site that links-to
or is linked-from the Site.
We suggest that You print out a copy
of this Use Agreement for Your records.
This Payment and Billing Service Terms
of Use Agreement (this "Payment
Service Agreement") may affect your
rights regarding your purchase or sale
of services through the Emerio Web site
("the Site"). Please read it
carefully. By clicking "I agree",
You accept the terms and conditions set
forth below and assert that the information
that You provide is truthful and correct.
Capitalized terms not otherwise defined
in this Payment Service Agreement shall
have the meanings given such terms in
our Terms and Conditions of Use, which
is incorporated into this Payment Service
Agreement by this reference. By agreeing
to the terms of this Payment Service
Agreement, You agree to accept all disclosures
and all other communications between
us electronically at the email address
You provide. (This does not supersede
other notification terms of The Terms
and Conditions of Use.) If You have any
questions or comments about the information
contained here, please contact customer
service.
Our Payment and Billing
Service (the "Payment Service")
allows service providers on the Site
("Service Providers") to collect
payment for such services from buyers
("Buyers") through electronic
transmission. Buyers and Service Providers
using the Payment Service are assigned "Stored
Value Accounts". Service Providers
may add to their respective Stored Value
Accounts by directing that payments for
their services received through the Payment
Service from Buyers be added to the respective
Service Providers' Stored Value Accounts
or by using any of the methods available
on the Payment Service web page. Buyers
may add funds to their respective Stored
Value Accounts by using any of the methods
available on the Payment Service web
pages. Funds in a Buyer's or Service
Provider's Stored Value Account may be
used to pay Service Providers, to pay
transaction fees due Emerio or to pay
Select or Basic Provider membership fees.
Upon request by the applicable User,
funds in the Stored Value Account can
be returned to such User, subject to
the following conditions and restrictions:
(a) Emerio shall not return any funds
to any Users of the Emerio Site or Payment
Service if directed not to return such
funds by any competent international,
federal, state or local authorities or
if doing so would violate or, in Emerio's
reasonable discretion, would reasonably
likely violate, any international, federal,
state or local laws, regulations or other
legal restrictions.
(b) Emerio shall withhold from any funds
requested to be returned by a User of
the Payment Service any amounts then
owed or owing to Emerio by such User.
As stated below, Emerio does not give
partial refunds for membership fees,
except as a result of the User's failure
to be verified by a Verification Service
Provider due to error or issues on the
part of the Verification Service Provider.
(c) By using the Payment Service, users
agree not to make "excessive requests" that
funds in such User's respective Stored
Value Accounts be returned to such users.
Users acknowledge that Emerio shall be
entitled, in Emerio's sole discretion,
to determine what constitutes "excessive
requests."
(d) Emerio acts solely as the Service
Provider's agent for purposes of facilitating
all payment transactions through the
Payment Service. Service Providers agree
to properly discharge and credit Buyers
for all payments Emerio receives through
the Payment Service regardless of when
and whether Emerio credits the Service
Provider for such payments.
(e) EMERIO IS NOT A BANK, AND AMOUNTS
TRANSFERRED THROUGH THE PAYMENT SERVICE
ARE NOT INSURED DEPOSITS.
Posting Deposit. Buyers posting a project
in the Select category will be required
to provide a credit card for authentication.
In addition, Buyers who do not award
the project after 30 days from the time
of posting will be charged a $25 posting
fee. No such posting fee will be charged
to Buyers who (a) award a posted project
within 30 days from the time of posting;
(b) receive less than 5 bids for such
project; or (c) for repeat projects initiated
by sellers. Any request for refunds must
be submitted in writing within 90 days
of posting the project in question to
Customer Service.
Service Provider Accounts. Emerio will
assign Accounts to Service Providers.
Service Providers may direct payments
to their Accounts for services provided
to Buyers. Funds in an Account may be
used to pay Transaction Fees (defined
in Section below) and membership fees
due to Emerio. In the event of a dispute
between a Buyer and a Service Provider,
funds in an Account may be frozen and
refunded to a Buyer upon the resolution
of such dispute. If Emerio determines,
in our sole discretion, that a Service
Provider has violated this Payment Service
Agreement, Emerio may refuse to credit
such Service Provider's Account.
(f) Interest. Emerio may earn and retain
interest or other compensation from the
balances in its Accounts that result
from the timing difference between the
receipt of funds from any Buyer and any
debit of the Account to pay the Service
Provider.
(g) Charge-backs. Emerio reserves the
right to seek reimbursement from any
Service Provider and the Service Provider
will reimburse Emerio if Emerio discovers
erroneous or duplicate transactions,
or Emerio receives a charge-back from
any Buyer's credit card issuer. Emerio
may obtain such reimbursement by debiting
the applicable Service Provider's Account,
deducting amounts from future payments
owed to the Service Provider, charging
such Service Provider's credit card,
or obtaining reimbursement from such
Service Provider by any other lawful
means.
In Emerio Basic and
Emerio Select, Emerio charges a per project
transaction fee ("Transaction Fee").
For Basic providers, the Transaction
Fee is equal to eight point seven five
percent (8.75%) and for Select providers,
the Transaction Fee is eight point seven
five percent (8.75%) of the greater of:
(a) the total amounts actually paid for
services, as defined in the Invoicing
on Emerio section, by the Buyer to the
Service Provider for such project, (b)
the total amounts invoiced through Emerio
for services, as defined in the Invoicing
on Emerio section, regardless of whether
Buyer uses the Payment Service to transmit
payment to the Service Provider, or (c)
the amount of the bid for a project placed
by the Service Provider and accepted
by the Buyer if invoices for the full
bid amount are not sent through Emerio
within 30 days of project acceptance.
(Please note the section on Circumvention
of Emerio's Fee Structure for more information).
Such Transaction Fee will be charged
to the Service Provider in the Service
Provider's Stored Value Account each
time a new invoice is sent through the
Emerio system, whether for a new project
or continuing work on a project. In the
event that the total amount actually
paid by the Buyer to the Service Provider
for such project is greater than the
amount invoiced by the Service Provider,
Emerio will adjust the amount charged
to the Service Provider. The Transaction
Fee is due and payable thirty (30) days
from the date each invoice is submitted
for payment. If invoices for the full
bid amount are not sent, the transaction
fee for the difference between the bid
amount and the invoiced amount is due
30 days from project acceptance. All
invoices and associated transaction fees
are treated separately, even if they
are part of the same project. In addition,
certain minimum transaction fees apply
for each category.
For repeat projects posted by Service
Providers on behalf of buyers through
the Submit Repeat Project link in Selling
Activity providers will be charged a
four point seven five percent (4.75%)
Transaction Fee. Buy Now service offers
are subject to an eight point seven five
percent (8.75%) Transaction Fee. For
any individual project, a Service Provider
will not be charged more than five thousand
dollars ($5,000) in Transaction Fees.
In the event of any Transaction Fee due
and payable has not been paid to Emerio
within forty-five (45) days from the
date of invoicing (or, if invoices for
the full bid amount have not been sent,
from the date of the project acceptance)
Emerio may, at its sole discretion, prohibit
any or all further activities by the
Service Provider until such Transaction
Fee is paid in full, including but not
limited to the placement of any bid on
a project and the listing of the service
profile. In the event that You are a
Service Provider, You agree that You
shall not be entitled to exercise any
of Your rights or benefits that You may
have with respect to any activities prohibited
by Emerio. Notwithstanding the foregoing,
Service Providers will be able to make
payment to Emerio through their Stored
Value Accounts even if they are prohibited
from engaging in other activities on
the Site.
In the event that User owes both transaction
fees and membership fees to Emerio, Emerio
will apply any payments first to the
membership fee and then to the outstanding
transaction fees owed.
The Transaction Fee is charged in U.S.
dollars, but may be paid in any currency.
Please note, however, that payments made
in any non-U.S. currency may take up
to eight weeks to process, and balance
adjustments may be delayed.
Emerio service providers and buyers are
responsible for meeting payroll, tax
and legal requirements for any legal
entity. It is the Service Provider's
and the Buyer's responsibility to determine
whether sales or use taxes apply to the
transactions and to collect, report and
remit the correct tax to the appropriate
tax authority. Emerio is not obligated
to determine whether sales or use taxes
apply and is not responsible to collect,
remit or report any sales or use taxes
arising from any transaction.
We reserve the right to change the method
of calculating the transaction fee at
any time. However, the new transaction
fee will apply only to projects accepted
after notification of the changed fee.
You must register
online to use the Payment Service. You
will provide us true and accurate information
when registering and will maintain and
update that information as applicable.
You will not impersonate any person or
use a name You are not legally authorized
to use. You authorize us to verify Your
information (including any updated information),
to obtain credit reports about You from
time to time while You are registered
with the Payment Service (including credit
reports about Your spouse if you live
in a community property state), and to
obtain an initial credit authorization
from Your credit card issuer at time
of registration. The Payment Service
is available only to individuals and
others who are in compliance with the
terms and conditions of this Payment
Service Agreement and the Terms and Conditions
of Use, who are not overdue in any payments
owed to Emerio, and whose applications
are acceptable to Emerio in its discretion.
Further, the use of the Payment Service
for the making of payments is available
only to individuals and others who have
been issued a credit card by a U.S. bank
acceptable to Emerio. Any registered
User of Emerio is eligible to use the
Payment Service to receive payments.
Paying a Service Provider with the Payment
Service is accomplished by following
the instructions and Payment Service
links on the Site and providing the information
requested. Unless You have a balance
in Your Stored Value Account (such as
from Your own sale of a service or through
deposits via credit card, debit card,
check or wire transfer), We will charge
your credit card for the necessary amount.
Currently, the Payment Service will only
accept VISA, MasterCard and American
Express credit cards. By providing Us
with Your Visa, MasterCard or American
Express credit card information, You
authorize Us to charge such credit card
for the amounts stated on the applicable
Payment Service page. Providing inaccurate
information is grounds for immediate
termination of Your use of the Payment
Service. We are not responsible for the
consequences that might result from Your
providing inaccurate information to Us.
Once funds have been
directed to a Service Provider's Stored
Value Account, such Service Provider
may, using the Payment Service, request
that any such funds be paid to such Service
Provider using any of the methods available
to such Service Provider on the Payment
Service web pages; provided that any
such requests shall be subject to the
conditions and restrictions listed above
under "Payment Service." Notwithstanding
any other provision of this Payment Service
Agreement, if We determine, in our sole
discretion, that a Service Provider has
violated this Payment Service Agreement,
We may refuse to credit such Service
Provider's Stored Value Account and may
instead maintain the amount of such credit
in a trust account or may return the
amount of the credit to the appropriate
Buyer. We will not be liable to any Service
Provider if We act in accordance with
the provisions of this Section.
Your use of the Payment
Service constitutes Your agreement to
pay for any amounts which You authorize
Us to charge against Your Stored Value
Account and, as appropriate, Your credit
card. Such payments, once authorized,
ARE FINAL. Payments made by Buyers through
the Payment Service are NOT held in escrow
and will be released to the specified
Service Provider without confirming that
the service transaction was satisfactory.
If, for any reason,
Emerio does not receive payment for any
amounts that You have authorized to be
paid through Your use of the Payment
Service, You agree to pay such amount
immediately upon demand by Emerio. You
also agree to pay any interest charges,
attorney's fees, and other costs of collection
incurred by Emerio in collecting from
You the authorized but unpaid amount.
In such case, Emerio may, at its option,
stop processing any further payments
made by You and apply any amounts then
held by Emerio on Your behalf toward
any deficiencies, losses, or costs that
We have incurred as a result of Your
use of the Payment Service. We may also
make appropriate reports to credit reporting
agencies, financial institutions, tax
agencies and law enforcement authorities,
and cooperate with them in any resulting
investigation or prosecution.
You agree to defend,
indemnify and hold harmless Emerio, its
officers, directors, employees and agents
(each an "Indemnified Party")
from and against any and all losses,
damages, and costs incurred by an Indemnified
Party as a result of any action, claim,
suit or other proceeding brought by a
third party against such Indemnified
Party in connection with Your use of
the Payment Service or any payment obligations
incurred through use of the Site.
Emerio is committed
to providing You with a safe and secure
e-commerce environment. If You wish,
You may enter Your credit card number
or other sensitive information using
an encrypted server connection that employs
SSL technology as provided on the Payment
Service pages.
Any disputes in connection with services
provided by Service Providers or payments
made by Buyers remain between such Buyers
and Service Providers. By using the Payment
Service, You acknowledge that Emerio
will not be a party to any such dispute
or be obligated to take any action or
refrain from taking any action toward
resolving any such dispute. Emerio may,
at its sole discretion, but shall not
be required to, withhold or delay payment
in the event of dispute between a Buyer
and a Service Provider.
Emerio may refuse
service to anyone for any reason. Emerio
may earn and retain interest or other
compensation from the balances in its
bank accounts that result from the timing
difference between the receipt of funds
from any Buyer and any debit of its bank
account to pay any Service Provider after
such Service Provider has requested disbursement
from its Stored Value Account.
Emerio may amend this Payment Service
Agreement at any time in its sole discretion
by notifying affected users. If a User
does not terminate use of the Payment
Service as described below, User will
be deemed to have accepted such amendment.
ser does not terminate use of the Payment
Service as described below, User will
be deemed to have accepted such amendment.
Emerio will not be considered to have
waived any of our rights or remedies
described in this Payment Service Agreement
unless the waiver is in writing and signed
by an authorized representative of Emerio.
No delay or omission by Emerio in exercising
its rights or remedies will impair its
rights or be construed as a waiver. Any
single or partial exercise of a right
or remedy will not preclude further exercise
of any other right or remedy.
Emerio reserves the right to seek reimbursement
from any Service Provider and Service
Provider will reimburse Emerio if Emerio
discovers erroneous or duplicate transactions
or We receive a chargeback from any Buyer's
credit card issuer for the amount of
such Buyer's purchase from such Service
Provider. Emerio may obtain such reimbursement
by deducting from future payments owed
to such Service Provider, by reversing
any credits to such Service Provider's
bank account, by charging such Service
Provider's credit card or by seeking
reimbursement from such Service Provider
by any other lawful means.
This Payment Service Agreement and any
User's registration for and use of the
Payment Service will not be construed
as creating or implying any relationship
of agency, franchise, partnership, or
joint venture between any User and Emerio.
Emerio may, at any
time and within its sole discretion,
terminate Your access to and use of the
Payment Service for any reason, including
without limitation, violations of this
Payment Service Agreement or the Site
Terms and Conditions of Use. In addition,
Emerio may modify the terms of this Payment
Service Agreement or discontinue the
Payment Service at any time and without
prior notice; provided that, if Emerio
elects to modify or discontinue the Payment
Service or this Payment Service Agreement,
Emerio will post the new terms or a notice
of such changes within a reas |
