Crackerjack Marketplace Inc.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION 17.
This Agreement constitutes a legal agreement between you ("you" or "User") and Crackerjack Marketplace Inc. (collectively, "Crackerjack" or "us"). This Agreement governs your use of our services and platform that facilitates communications between Users offered through our website located at https://crackerjack.app, 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 "Crackerjack Platform".
By accessing, using or registering with the Crackerjack 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 Crackerjack Platform. Crackerjack's acceptance is expressly conditioned upon your assent to this Agreement in its entirety.
By using the Crackerjack 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.
1. Crackerjack Platform; Screening.
a. The Crackerjack Platform. The Crackerjack Platform is a technology platform that makes available certain services to individuals seeking to obtain such services (“Customers”) that Crackerjack fulfills using independently established service providers customarily engaged in a trade, occupation and/or business of providing the services requested (referred herein as “Professionals”, “Pros” or “Service Providers”). There are two different types of services that Service Providers can provide on the Crackerjack Platform, local services and remote services. Local services are performed at a physical location specified by a Customer or by a Service Professional (“Local Services”), while remote services are performed remotely, which means that a number of service tasks can be carried out over the Internet, without having to visit a Customer (“Remote Services”). Both Local Services and Remote Services are hereinafter referred to as "Professional Services" or “Services”. CRACKERJACK, THROUGH THE CRACKERJACK PLATFORM, OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH PROFESSIONAL SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE SUCH PROFESSIONAL SERVICES ITSELF, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY PROFESSIONAL SERVICES, 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.
b. Contract between Customers and Pros. Under the Crackerjack Platform, Customers may (i) post a project with the Services required (the “Project”); or (ii) Request a quote to a pre-identified Pro with the Services requested (the “Request for a Quote”). Pro may (i) submit a quote for a Project or for a Request for a Quote, as applicable (the “Quote”). Requests for a Quote will include the Project title, Project description, start and end date, budget, images, location and any other relevant information. A Quote will include the Project title, Project description, start and end date, price, and any other relevant information. Once Customers accept the Quote and complete the Payment, pursuant to Section 3, Quotes convert into orders (“Orders”) and Pro will start performing the Services. Acceptance of Quotes are also referred to as Order placement (“Order Placement”). Upon finalization of the Services, Pro will submit a delivery (the “Delivery”) for Customer’s acceptance. You acknowledge and agree that the process described above constitute a legally binding contract between Pro and Customer (the “Service Agreement”). The terms of the Service Agreement include the terms set forth in this Section 1.b), the engagement terms proposed and accepted on the Crackerjack Platform, and any other contractual terms accepted by both the Pro and the Customer to the extent such terms do not conflict with the terms in this Agreement and do not expand Crackerjack’s obligations or restrict Crackerjack’s rights under this Agreement. Crackerjack is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstances, create an employment or other service relationship between Crackerjack and the Pro, nor will it create an employment relationship between the Customer and the Pro. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Crackerjack.
c. Screening and Licensing. Although we may take certain steps to examine the credentials of the Service Professionals listed on the Crackerjack Platform, we make no guarantees, warranties or representations regarding the skills or undertakings of such Service Professional or the quality of the job that he or she may perform for you if you elect to retain their services. Crackerjack does not endorse or recommend the services of any particular Service Provider. Crackerjack does not verify their representations about their services, nor validate any reviews. It is entirely up to you to evaluate the Service Professional and the Service Professional's qualifications, and to enter into a direct contract or otherwise reach agreement with a Service Professional. We do not guarantee or warrant any Service Professional's performance on the job or the outcome or quality of the services performed. The Service Professionals are not employees or agents of Crackerjack, nor is Crackerjack an agent of the Service Professionals. Each Customer 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. BY USING THE CRACKERJACK PLATFORM AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CUSTOMER AGREES TO HOLD CRACKERJACK FREE FROM THE RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF THE PROFESSIONAL SERVICES. CRACKERJACK 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.
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 Crackerjack Platform. You are solely and fully responsible for all activities that occur under your password or account. Crackerjack has no control over the use of any User's account by the User or third parties and expressly disclaims any liability derived therefrom. Nothing in this section shall affect Crackerjack's rights to limit or terminate the use of the Crackerjack Platform, as provided below in section 4(b).
c. Proof of Identity. You will provide us with such proof of identity and/or residency as we may reasonably request from time to time.
d. Text Messages and Phone Calls.
(i) General: By using the Crackerjack 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 Crackerjack 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 Orders, transactions and our business, including marketing related communications. By consenting to being contacted by Crackerjack, 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 Crackerjack and/or Users/Professionals, including but not limited to: operational communications concerning your account or use of the Crackerjack Platform or Services, updates concerning new and existing features on the Crackerjack Platform, communications concerning promotions run by us, and news concerning Crackerjack and industry developments. For certain Professional Services, you also expressly authorize Crackerjack to send you an automated prerecorded call confirming your Professional Services request, along with calls from Professionals that can help you with your request to the land-line or mobile phone number you provided, and you understand that either Crackerjack 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 Crackerjack Platform and requesting Professional Services, you are entering into a business relationship with Crackerjack and/or Service Providers and thus agree to be contacted by Crackerjack and/or Service Providers. You acknowledge that you are not required to consent to receive promotional messages or phone calls as a condition of using the Crackerjack Platform. 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 Crackerjack at any time.
(ii) Recording: You acknowledge that Crackerjack 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 Crackerjack's use of a service provider to mask your telephone number when you call or exchange text (SMS) messages with a Pro or Customer using a telephone number provided by Crackerjack. During this process, Crackerjack 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 Crackerjack's use and disclosure of this call data for its legitimate business purposes.
(iii) Provisions Specific to Text Messaging: i) Generally: You agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages from Crackerjack, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Msg & Data rates may apply. Message frequency will vary. Crackerjack reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. Crackerjack also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so. Not all mobile devices or handsets may be supported, and our messages may not be deliverable in all areas. Crackerjack its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages. Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode or in reply to a text message to cancel. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT to our shortcode or in reply to a text message you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that Crackerjack and its Service Providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from Crackerjack through any other programs you have joined until you separately unsubscribe from those programs. You acknowledge that by opting out of receiving text (SMS) messages from Crackerjack and the Service Professionals, your use of Crackerjack Services may be impacted. Crackerjack may view, store, access and disclose messages exchanged between you and consumers transmitted via Crackerjack 's messaging platform.
(iv) False Information: 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 CRACKERJACK AND THE SERVICE PROVIDERS, AND TO CUSTOMERS, 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 SOMEONE 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 CRACKERJACK AND EACH SERVICE PROVIDER WHO PROVIDES SUCH PROFESSIONAL SERVICES, FOR THE GREATER OF: (1) A MINIMUM AMOUNT OF $11,000 TO CRACKERJACK AND EACH OF THE AFFECTED SERVICE PROVIDERS 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. Crackerjack may send you confirmation and other transactional emails including but not limited to Services, account information, and account settings. Crackerjack 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.
b. Payment processing services for Service Professionals are provided by Stripe and are subject to the Stripe Connected Account Agreement. By agreeing to these Terms herein, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of participating in Crackerjack through Stripe, you agree to provide Crackerjack accurate and complete information about you and your business, and you authorize Crackerjack to share it and transaction information related to your use of the payment processing services provided by Stripe. You also authorize Crackerjack to pass on information provided by you to Stripe so that Stripe may use it to protect the integrity of your account. 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.
c. In very rare cases, errors may occur during the payment process. If your payment was not processed successfully but the corresponding amount was withdrawn from your payment method, contact our support team.
d. Refunds. In order to get a refund, you must first, communicate with your Service Provider. If the Pro responds and accepts Customer’s request to cancel an Order, Customer will receive a refund. If the Pro does not respond within 48 hours, the Order will automatically be canceled, and Customer will receive a refund. Service processing fee is non-refundable. If the parties cannot reach an agreement, then a dispute should be opened. For further information around Disputes, see Section 16.
e. Payment Disputes: All requests for Payment chargebacks, errors, claims, refunds and disputes (“Payment Disputes”) will be subject to review by Crackerjack in accordance with the rules applicable to the payment method you used to make the Payment and will be in Crackerjack absolute discretion. Crackerjack is not liable to you under any circumstances for Payment Disputes we are unable to resolve in your favor. We will normally process your valid written Payment Dispute request within thirty (30) days after we receive it, unless a shorter period is required by law. If you close or deactivate your Account before we adjudicate your Payment Dispute, we will not be able to issue you any amounts you are owed. We will attempt to pay you any Payment Disputed amounts you are owed using the method with which you made the disputed payment, but we cannot guarantee that we will be able to do so if your payment method information is inaccurate, incomplete, or has been cancelled.
4. Term and Termination.
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 Crackerjack. We may terminate this Agreement or terminate or suspend your right to use the Crackerjack 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 Crackerjack 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. 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, Crackerjack 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 Crackerjack 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 Crackerjack 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 Crackerjack.
5. Links to and Plug-Ins from Other Websites or Media.
6. Submission Areas.
The Crackerjack Platform may contain blogs, message boards, applications, opportunities to provide reviews, Project postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Users to communicate with other Users and with Crackerjack (collectively, "Submission Areas"). Some areas in the Submission Areas within the Crackerjack Platform will be public and Crackerjack will not be responsible for any information or materials posted in such public areas. Crackerjack may, in its discretion, publicly post submissions you submit to a non-public area of the Crackerjack 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 Crackerjack 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 Crackerjack 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 Crackerjack 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 Crackerjack may designate. The rights you grant in this license are for the limited purpose of operating, advertising, marketing, promoting, and improving the Crackerjack Platform. We reserve the right to remove postings from Submission Areas in our sole discretion.
7. Rules for Use of the Crackerjack Platform.
During the term of this Agreement, Customers may use the Crackerjack Platform for your personal use only (or for the use of a person, including a company or other organization that you validly represent). Customers may use the Crackerjack Platform to request Professional Services solely with respect to a location where the Customer is legally authorized to have Professional Services performed. Customer may not use the Crackerjack Platform for any other purposes or in connection with any commercial endeavors whatsoever without our express prior written consent. Customers agree to treat Service Providers 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 Service Providers to enable them to supply Professional Services. Customers agree to comply with our complaint and other policies designated on the Site. Customers acknowledge that their selected Service Providers may be unavailable from time to time. You shall NOT use the Crackerjack 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 Crackerjack 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 Crackerjack 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 Crackerjack Platform without express written permission from us.
h. Use the Crackerjack 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 Crackerjack 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 Crackerjack 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 Crackerjack 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 Crackerjack 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 Crackerjack Platform under different usernames or identities, after your account has been suspended or terminated.
t. Mirror or archive any part of the Crackerjack Platform or any content or material contained on the Crackerjack Platform without Crackerjack '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 Crackerjack's consent
8. No Employment.
Crackerjack provides a software platform which allows you to obtain certain home services that Crackerjack fulfills using independent Professionals. Crackerjack is not the employer of any Professional and Professionals are not Crackerjack’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. Intellectual Property Rights.
The Crackerjack Platform, and the information, data, content and materials, which it contains ("Crackerjack Materials"), are the property of Crackerjack and/or its affiliates, subsidiaries, parents and licensors, excluding User-generated content, which Crackerjack has a right to use as described below. The Crackerjack Materials are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Crackerjack 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 Crackerjack Materials. Any use of Crackerjack Materials, other than as expressly permitted herein, is prohibited without the prior permission of Crackerjack and/or the relevant right holder. The service marks and trademarks of Crackerjack and the Crackerjack logo are service marks owned by Crackerjack. Any other trademarks, service marks, logos and/or trade names appearing on the Crackerjack 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 Crackerjack Platform without the express prior written consent of the owner.
10. Copyright Complaints and Copyright Agent.
Crackerjack respects the intellectual property of others and expects Users to do the same. Crackerjack 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 Crackerjack Platform infringe upon that person's or entity's copyright or other intellectual property right (such person or entity, a "Complainant") and sends to Crackerjack a properly submitted copyright notice as indicated below, Crackerjack will investigate, and if it determines, in its discretion, that the material is infringing, Crackerjack will remove the content and may terminate the access of the User who posted such content to the Crackerjack 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 Crackerjack may find it on the Crackerjack 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.
11. The App / Mobile Devices
a. The Crackerjack Platform may allow you to access our services, download our Apps, upload content to the Crackerjack 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. Crackerjack 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. Crackerjack reserves the right to terminate the use of the Apps or any other aspect of the Crackerjack Platform should you be using the Apps or the Crackerjack Platform with an incompatible or unauthorized device.
12. Modifications to the Crackerjack Platform.
We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Crackerjack Platform or any content or information on the Crackerjack Platform with or without notice. We will not be liable to any party for any modification or discontinuance of the Crackerjack Platform.
The term "Confidential Information" shall mean any and all of Crackerjack's trade secrets, confidential and proprietary information, personal information and all other information and data of Crackerjack 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 Crackerjack Platform contains secured components that are accessible only to those who have been granted a username and password by Crackerjack. Information contained within the secure components of the Crackerjack Platform is confidential and proprietary. You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Crackerjack and agree that you will not use Confidential Information other than as necessary for you to make use of the Crackerjack 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 Crackerjack 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 Crackerjack upon termination of this Agreement for any reason whatsoever.
14. Disclaimer of Warranties; Limitation on Liability.
a. USE OF THE CRACKERJACK PLATFORM IS ENTIRELY AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE CRACKERJACK 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 CRACKERJACK NOR ITS AFFILIATES, PARENTS, SUBSIDIARIES OR LICENSORS WARRANT THAT THE CRACKERJACK PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO ANY CONTENT AVAILABLE IN OR THROUGH THE CRACKERJACK 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 CRACKERJACK 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 CRACKERJACK PLATFORM OR THIS AGREEMENT. ACCESS TO THE CRACKERJACK PLATFORM IS PROVIDED FREE OF CHARGE AS A COURTESY. NEITHER CRACKERJACK NOR ITS AFFILIATES, PARENTS, SUBSIDIARIES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE CRACKERJACK PLATFORM. NEITHER CRACKERJACK NOR ITS AFFILIATES, PARENTS, SUBSIDIARIES OR LICENSORS WARRANT THAT THE CRACKERJACK PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. CRACKERJACK 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 CRACKERJACK , 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 CRACKERJACK 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 CRACKERJACK OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL CRACKERJACK 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 CRACKERJACK PLATFORM OR ANY PROFESSIONAL SERVICES, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. UNDER NO CIRCUMSTANCES WILL CRACKERJACK OR MEMBERS BE LIABLE FOR ANY DIRECT DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE CRACKERJACK PLATFORM OR ANY PROFESSIONAL SERVICES, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. CRACKERJACK AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE CRACKERJACK PLATFORM, THE PROFESSIONAL SERVICES, 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 CRACKERJACK 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 TOTAL FEES PAID BY YOU TO CRACKERJACK DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
c. ADDITIONAL DISCLAIMER. YOU UNDERSTAND, THEREFORE, THAT BY USING THE CRACKERJACK PLATFORM, YOU MAY BE EXPOSED TO PROFESSIONAL SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE CRACKERJACK PLATFORM, AND SUCH PROFESSIONAL, AT YOUR OWN RISK.
NOTHING IN THIS AGREEMENT OR THE CRACKERJACK 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 CRACKERJACK 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 CRACKERJACK PLATFORM.
YOU ACCEPT THAT, AS A CORPORATION, CRACKERJACK 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 CRACKERJACK '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 CRACKERJACK ‘S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AFFILIATES, PARENTS, SUBSIDIARIES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS CRACKERJACK.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTCRAERED 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.
You hereby agree to indemnify, defend, and hold harmless Crackerjack, 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 Crackerjack Platform, 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 Crackerjack Platform. Crackerjack 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 Crackerjack.
If a Customer is not satisfied with the quality of delivered work and wants to receive a refund, he or she can open a dispute. The Customer will be required to provide evidence and specify a refund amount. The Pro must respond the claim and provide evidence and the refund amount (if any). Only Customers can create a dispute under the Crackerjack’s website. A dispute can be opened in three cases: (a) the performance of Services is late (end date set forth in the Order has been passed), (b) if the Pro submitted the Delivery, and the Customer declined such Delivery, and (c) there is an Order placed which is rejected by one party. A dispute cannot be opened if: (a) there is a pending Project request, or (b) there is a pending Delivery. Customers must clearly describe the problem and provide reasonable evidence for a fair dispute resolution.
Pros are encouraged to answer Customer’s disputes as soon as possible. Pros will have the option to accept Customer’s claim or provide evidence. Both Pros and Customers will have seven days to resolve the dispute. After this period, depending on various conditions, one of two actions may occur: (a) if the Pro did not respond to the dispute, then the dispute will be closed in favor of the Customer, or (b) if the Pro responded to the dispute and provided evidence supporting its position, the dispute will be considered by a specialized employee of the Crackerjack Platform. After the dispute has been resolved, payout (if any) will be initiated in seven days (standard clearance time) and the refund (if any) will be initiated in 24 hours. Crackerjack Platform reserves the right to resolve the dispute at its sole discretion based on evidence provided by the parties.
17. 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 Crackerjack, including without limitation any dispute or claim related to or arising out of this Agreement ("Dispute"), you and Crackerjack 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 Crackerjack. Crackerjack’s address for such notices is:
1345 Barnum Ave.
STE 9 #237
b. Arbitration. If a Dispute is not resolved through Informal Negotiations, you and Crackerjack 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). 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 Crackerjack 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 Crackerjack 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 Crackerjack 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.
18. 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.
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.
20. General Provisions.
All provisions that should by their nature survive the expiration or termination of this Agreement 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 Crackerjack 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 Crackerjack. Crackerjack's address for such notices is
1345 Barnum Ave.
STE 9 #237
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 Crackerjack, as described below. This Agreement shall be interpreted as if jointly drafted by the parties. Crackerjack 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 Crackerjack'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.
21. 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 Crackerjack Platform. Your continued use of the Crackerjack Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
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.
Last updated: September 7, 2021