As updated April 2022
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AGREEMENT AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW.
Please read these Terms before using the Site or the Services. By using the Site or the Services, you hereby represent, warrant, understand, agree to and accept these Terms in their entirety whether or not you register as a user of the Site or Services (“Registered Users”).
This Agreement constitutes a legally binding agreement (the “Agreement”) between you and Call Emmy, Inc. (“Call Emmy,” “we,” “us” or “our”), governing your use of the applications, websites, and/or other software or technology products available through https://Call Emmy.com, including any and all subdomains or subdirectories thereof (the "Call Emmy URL"), and available under any and all developer accounts connected to Call Emmy or the Call Emmy URL accessed through the iOS App Store, the Google Play Store, or any other platform for the distribution of software applications (collectively, the “Call Emmy Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND Call Emmy CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST Call Emmy TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.
IF YOU ARE A Service Provider OR Service Provider APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
- Scope of Service
Call Emmy enables people, organizations and other legal entities ("Clients") seeking child care and/or household services ("Services") to find and engage, on an independent contractor basis, qualified and experienced providers that have satisfied the requirements of Call Emmy’s onboarding process ("Service Providers" and, together with Clients and all other people, organizations and other legal entities who access the Call Emmy Platform for any reason, “Users”). Each User may create a User account that enables access to the Call Emmy Platform. Each person may only create one User account, and Call Emmy reserves the right to shut down any additional accounts.
YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN CHILD CARE AND/OR HOUSEHOLD SERVICES THROUGH THE USE OF THE Call Emmy PLATFORM DOES NOT ESTABLISH Call Emmy AS A PROVIDER OF SERVICES.
Based on the information provided by Users, Call Emmy matches Clients with Service Providers who meet the Client’s criteria, and sends information about the time, date, and location of the needed Services (the "Booking") to all such Service Providers. Service Providers are matched with Clients on a first-to-respond basis. Call Emmy does not utilize discretion in screening which Service Providers are appropriate for a Client’s specific needs, other than applying the criteria provided by the Client. Neither Call Emmy, nor our respective employees, are making a referral to, or endorsing, any individual, company or agency, nor are we providing any medical, diagnostic, treatment or clinical service or engaging in any conduct that requires a professional license.
For purposes of this Agreement, the Services provided by Service Providers to Clients that are matched through the Call Emmy Platform shall be referred to collectively as the “Services.” Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each Booking in which a Service Provider provides Services to a Client shall constitute a separate agreement between such persons.
The Services do not include medical care of any kind, including emergency care, and no part of the Service Provider Fees or the Service Fees constitutes compensation for any medical or emergency care. If an emergency occurs during a Booking, neither the Service Provider nor Call Emmy shall be liable for any damages resulting from any act or omission of the Service Provider. In the event that a Service Provider renders emergency care during a Booking, such Service Provider and, if applicable Call Emmy, shall be entitled to the full benefit of any "Good Samaritan" laws.
ANY CHILD FOR WHICH A CLIENT USES Call Emmy TO ARRANGE CHILD CARE SERVICES (EACH A "CHILD") MUST BE A CHILD FOR WHOM THAT CLIENT HAS THE AUTHORITY TO ORDER CHILD CARE SERVICES, EITHER IN THAT CLIENT’S CAPACITY AS A PARENT, LEGAL GUARDIAN OR OTHER RELATIVE, OR FOR ON-SITE CHILDCARE WHERE THE CHILD’S PARENT, LEGAL GUARDIAN OR OTHER RELATIVE WILL BE PRESENT ON PREMISES AND/OR WILL GIVE AFFIRMATIVE CONSENT FOR THE PROVISION OF CARE.
Subject to your compliance with this Agreement, Call Emmy grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Call Emmy Platform on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Call Emmy and Call Emmy's licensors.
Call Emmy may from time to time provide certain services, programs, promotions, opportunities and contests to Clients and/or Service Providers ("Call Emmy Programs"). Call Emmy may at any time in its sole discretion, change, modify, add to, supplement or delete the terms and conditions of any Call Emmy Program, including without limitation changing the name, fees and eligibility requirements to participate in such Call Emmy Program. Call Emmy will endeavor to notify you of any material changes by email, but will not be liable for any failure to do so. In any case, the liability of any of Company’s partners pursuant to such Call Emmy Programs shall be limited as described in this Agreement, including but not limited to Section 14 of this Agreement.
- Modification to the Agreement
Call Emmy reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Call Emmy Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
- Eligibility and Status
To be eligible to use our Services, you must meet the following criteria:
- You must be eighteen (18) years of age or older.
- If you are registering to be a Service Provider, you must be permitted to legally work within the United States.
- Neither you nor any member of your household may have ever been (i) the subject of a complaint, restraining order or any other legal action involving, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, dishonesty, negligence or drugs, or (ii) registered, or currently required to register, as a sex offender with any government entity.
- You must not be a competitor of Call Emmy or using our Services for reasons that are in competition with Call Emmy.
- If you are an individual User, you must not have had fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year (or five or more if you are seeking services in the State of California).
- You must comply with any and all regulations related to the provision of child care services in your state and/or local jurisdiction.
Notwithstanding the foregoing, Call Emmy reserves the right to restrict access to the Services to any person or persons, at any time, at our sole discretion.
Call Emmy does not employ any Service Providers. Clients are the potential employers of Service Providers and are responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish (such as applicable payroll, tax and minimum wage laws).
Call Emmy does not have control over the quality, timing, or legality of the services actually delivered by Service Providers, nor of the responsibility or actions of Clients or Service Providers, and we neither refer or recommend Clients or Service Providers nor make any representations about the suitability, reliability, timeliness, and accuracy of the services provided by Service Providers or the responsibility or actions of Clients or Service Providers whether in public, private or offline interactions. Call Emmy does not provide any training or equipment to Service Providers, nor does Call Emmy have the right to direct and control the work performed by Service Providers or the financial and business aspects of Service Providers’ work.
As a Service Provider on the Call Emmy Platform, you acknowledge and agree that the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Call Emmy expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Call Emmy; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Call Emmy, and you undertake not to hold yourself out as an employee, agent or authorized representative of Call Emmy.
All Users hereby agree and acknowledge that Call Emmy is not responsible for ensuring compliance with federal, state or local laws regarding employment classification, overtime, workers’ compensation, income tax withholding or any other tax matters, and that all Users will indemnify and hold harmless Call Emmy, its employees, directors, consultants and shareholders, with respect to any all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of or relating to the foregoing.
If you are a Service Provider, you hereby expressly acknowledge and agree that you are not entitled to unemployment insurance benefits through Call Emmy, and that unless you have entered into an express written agreement with a Client or Clients, you are obligated to pay federal and state income tax on any moneys you receive through the Call Emmy Platform. You also acknowledge that providing Child Care Services through the Call Emmy Platform does not constitute your primary source of income, and that your work for Clients is on an informal, occasional basis.
- Background Checks
Call Emmy conducts periodic criminal background checks as discussed below (each a "Background Check") on all Service Providers as a condition to being eligible to accept Bookings on the Call Emmy Platform, and in most cases on Clients as a condition to being eligible to request Bookings on the Call Emmy Platform.
By registering for and using the Call Emmy Platform or Services, you hereby acknowledge and agree (a) that Call Emmy has the right to engage a third-party consumer reporting agency on an ongoing basis to use your personal information to run periodic Background Checks on you, (b) that these Background Checks are for the legitimate business purpose of protecting the safety and integrity of the Call Emmy Platform, all Users, and all Children for whom Child Care Services are requested through the Call Emmy Platform, (c) that Call Emmy may deny or revoke your access to the Call Emmy Platform on the basis of the results of these Background Checks, even if such information was subsequently dismissed, and (d) that any such denial or revocation of access would not be for credit, insurance, or employment purposes, or for any other purpose regulated by the Fair Credit Reporting Act ("FCRA"). Call Emmy may order Background Checks when you register with Call Emmy and thereafter in connection with your continued use of our Services and/or interaction with the Call Emmy Platform (such as by creating or accepting a Booking, contacting or communicating with other members, posting or updating a job or profile, etc.). The Background Checks may include, without limitation, information in the following areas: verification of Social Security number; current and previous residences; employment history, including all personnel files; education; references; credit history and reports; criminal history, including records from any criminal justice agency in any or all federal, state or county jurisdictions; birth records; motor vehicle records, including traffic citations and registration; and any other public records.
The Background Checks may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers' compensation, driving, employment, military, civil, and educational data and reports.
By using the Call Emmy Platform, you (a) authorize the complete release of all records or data pertaining to you that an individual, company, firm, corporation or public agency may have, except to the extent such records or data are governed by contractual or statutory privacy or confidentiality requirements, and (b) hereby authorize and request any present or former employer, school, police department, financial institution or other persons having personal knowledge of you to furnish Call Emmy's third-party vendors or their designated agents with any and all such information in their possession regarding you in connection with the use of the Call Emmy Platform.
You hereby represent, understand and expressly agree that Call Emmy does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these Background Checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it and not Call Emmy.
BY AGREEING TO THESE TERMS AND USING OUR SITE, YOU AGREE TO ALLOW Call Emmy TO PERFORM THESE INTERNAL BACKGROUND CHECKS FOR THE PURPOSES DESCRIBED ABOVE. IF YOU DO NOT WANT THESE INTERNAL BACKGROUND CHECKS TO BE PERFORMED, YOU SHOULD NOT USE THE SERVICE. NO FURTHER CONSENT FROM YOU IS REQUIRED FOR THESE CHECKS TO BE PERFORMED.
By registering for and using the Call Emmy Platform or Services as a User, you hereby represent, understand and expressly agree that all Background Checks are completed by a third party consumer reporting agency (not Call Emmy), that the specific records searched, and the comprehensiveness of the search, varies by the type of Background Check ordered as well as the state and county where the check is performed, and that the checks are not always accurate or a complete compilation of a person's criminal history. In addition to legal and reporting system limitations of Background Checks, each check is performed with the consent of the person being checked, using information he or she provides, such as home address, social security number, date of birth, and name. If a User provides incorrect information, the check might be run with inaccurate identifying data, which can impact the validity of the criminal check. Finally, criminal records are not always reported accurately or promptly, and human and electronic error can result in inaccurate or incomplete reporting. Consequently, even the most comprehensive background check offered may not disclose the existence of all criminal records in all jurisdictions. Therefore, you agree to release, indemnify and hold harmless Call Emmy from any loss, liability, injury, death, damage, or costs that may result from reliance on a Background Check regardless of the cause, including, without limitation, due to the inaccuracy or incompleteness of any such information.
Regardless of how payment is processed, Clients contract for Services directly with the Service Provider with whom they are paired through the Call Emmy Platform.
In most cases, Clients will be required to provide their credit card to the Payment Service Provider retained by Call Emmy (the "PSP"). The PSP will charge Clients’ credit cards according to the rates for Services published on the Call Emmy Platform and mobile application from time to time (the “Client Fee”). All published rates are inclusive of the fees paid to the Service Providers for the Services (the “Service Provider Fees”) and Call Emmy’s fees for usage of the Call Emmy Platform ("Service Fees”). Within 24 hours after completion of a Booking, the PSP will release the portion of the Client Fee for that booking that constitutes Service Provider Fees to the Service Provider and the portion that constitutes Service Fees to Call Emmy.
Client shall make all payments relating to, or in any way connected with, the Services through the Call Emmy Platform. Any action that encourages or solicits complete or partial payment outside of the Call Emmy Platform is a violation of this Agreement. Should a Client or Service Provider be found in violation of this section of this Agreement, it will owe Call Emmy an amount equal to the greater of a) $500; or b) the applicable fees had the payments been processed through the Call Emmy Platform, plus 18%.
In certain situations, where processing payment through the PSP is not possible, Call Emmy may agree to act as payment service provider, receiving the Client Fee directly through check or credit card, distributing the Service Provider Fees through the PSP and retaining the Service Fees. In no circumstance shall any such alternative payment process constitute or imply a direct contractor relationship between Call Emmy and the Client.
In order to receive payment, Service Providers are required to register with the PSP, agree to Terms of Service of the PSP and go through a vetting process to set up their account with the PSP. Terms of Service between Service Providers and the PSP retained by Call Emmy are available here: https://stripe.com/us/connect-account/legal (the "PSP Agreement"). By accepting this Agreement, each Service Provider agrees that they have downloaded or printed, and reviewed and agreed to the PSP Agreement. Please note that Call Emmy is not a party to the PSP Agreement and that the Service Provider, the PSP and any other parties listed in the PSP Agreement (currently, Stripe) are the parties to the PSP Agreement and that Call Emmy has no obligations or liability to any Service Provider under the PSP Agreement.
Call Emmy reserves the right, in its sole discretion (but not the obligation), to (i) place on hold any out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so, in either case with respect to both Clients and Service Providers.
No refunds or credits will be provided once a Client’s credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made.
- Non-Circumvention; Prohibited Uses; Reporting Abuse
Except with required notice to Call Emmy and payment of the Platform Buyout Fee (as defined below), Client will not, during the term of this Agreement and for twelve (12) months thereafter, directly or indirectly, encourage, solicit, hire, or otherwise contract or engage for performance of services outside of the Call Emmy Platform, any Service Provider who Client becomes aware of in connection with the Call Emmy Platform or otherwise pursuant to this Agreement (a "Call Emmy-Sourced Service Provider"). Client also agrees that it will not refer any Call Emmy-Sourced Service Provider directly or indirectly to any related parties or affiliates except through the Call Emmy Platform. In the event a Client wishes to hire a Call Emmy-Sourced Service Provider outside the Call Emmy Platform, Client shall pay to Call Emmy a one-time fee of $300, representing Call Emmy's expenses incurred to source, recruit, screen, and replace such Call Emmy-Sourced Service Provider.
Without limitation, while using the Call Emmy Platform, neither Users nor Service Providers may:
- Publish, post, upload, distribute or disseminate any image, name, material or information regarding any other User or any Child without the express permission of such User or, in the case of a Child, such Child's legal guardian.
- 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 Users, Service Providers, Children and Call Emmy staff.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
- Use the Call Emmy Platform for any purpose, including, but not limited to posting or completing a Booking, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Provide false or inaccurate information when registering an account on the Call Emmy Platform, using the Services or communicating with other Users or Service Providers.
- Impersonate another person or a User or Service Provider, or allow any other person or entity to use your identification to post or view comments.
- Download any file posted by another User or Service Provider that a User or Service Provider knows, or reasonably should know, cannot be legally distributed through the Call Emmy Platform.
- Restrict or inhibit any other User or Service Provider from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Call Emmy, without the prior written consent of Call Emmy.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Call Emmy Platform in any manner.
- Hack or interfere with the Call Emmy Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the Call Emmy Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by Call Emmy.
- 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.
- Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
- Use the Call Emmy Platform to solicit for any other business, website or service, or otherwise contact Users or Service Providers for employment, contracting or any purpose not related to use of the Call Emmy Platform as set forth herein.
- Use the Call Emmy Platform to collect usernames and or/email addresses of Users or Service Providers by electronic or other means.
- Register under different usernames or identities, after your account has been suspended or terminated, or terminate your registration and re-register in order to prevent a review from being associated with your account.
BY USING THE SITE OR THE SERVICES, YOU AGREE TO REPORT ANY ALLEGED IMPROPRIETIES OF ANY USERS TO Call Emmy IMMEDIATELY VIA ELECTRONIC CORRESPONDENCE. IN THE EVENT THAT ANY ALLEGATION OF IMPROPER CONDUCT BY ANY USER IN VIOLATION OF THESE TERMS OR OF APPLICABLE LAW, Call Emmy WILL IMMEDIATELY SUSPEND THE ACCOUNT OF SUCH USER PENDING A FULL INVESTIGATION INTO SUCH ALLEGATIONS.
- Public Content
The Call Emmy Platform may contain profiles, reviews, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities ("Public Areas") that allow Call Emmy and Users to communicate among each other. Users may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. You understand that all submissions made to Public Areas by Users ("Public Content") will be public and not confidential, that you may be publicly identified by your name or login identification on the Call Emmy Platform, including, with respect to Service Providers, information regarding ratings, reviews and performance of Services, and that Call Emmy will not be responsible for any damage or injury to occur as a result of Public Content or use of Public Areas.
- Account, Password, Security and Communication
You must register with Call Emmy and create an account to use certain features of the Call Emmy Platform and to use the Services. If you are a Client, you may use your account only to find care for your children for whom you are the legal guardian or to find service providers for your household tasks. If you are a Service Provider, you may use your account only to find Bookings for yourself. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Call Emmy for accessing the Call Emmy Platform. You are solely and fully responsible for all activities that occur under your password or account. Call Emmy has no control over the use of your account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you must contact Call Emmy immediately.
By entering into this Agreement or using the Call Emmy Platform, you agree to receive communications from us, including via e-mail, text message, telephone, and push notifications. You agree that text messages, telephone calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Call Emmy, its affiliated companies and/or Users, may include but are not limited to: operational communications concerning your User account or use of the Call Emmy Platform or Services, updates concerning new and existing features on the Call Emmy Platform, communications concerning promotions run by us or our third-party partners, and news concerning Call Emmy and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF, HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL EMAIL MAY IMPACT YOUR USE OF THE Call Emmy PLATFORM OR THE SERVICES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS, EMAILS OR CALLS AS A CONDITION OF USING THE Call Emmy PLATFORM OR THE SERVICES.
- Child Information and Personal Information
"Personal Information" is defined as any information and materials other than Child Information that you provide to Call Emmy or other Users in connection with your registration for and use of the Call Emmy Platform, including without limitation Public Content.
You hereby grant Call Emmy a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in your Personal Information, in any media now known or not currently known in order to market, promote, perform and improve upon the Call Emmy Platform.
Public Content is primarily user generated, and we do not control or vet user generated content for accuracy. Call Emmy does not assume any responsibility for the accuracy or reliability of any information provided by Users on or off the Call Emmy Platform.
- Termination and Suspension
Call Emmy may terminate or suspend your right to use the Call Emmy Platform at any time for any or no reason, with or without notice. Call Emmy is not obligated to provide you with an explanation for suspension or termination.
Without limiting the foregoing, Call Emmy may terminate or suspend your right to use the Call Emmy Platform if you breach any term of this Agreement or any policy of Call Emmy posted through the Call Emmy Platform from time to time, or if Call Emmy otherwise finds that you have engaged in inappropriate and/or offensive behavior. If Call Emmy terminates or suspends 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, Call Emmy reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Should Call Emmy find that you violated these Terms, Call Emmy reserves the right, at its sole discretion, to immediately terminate your use of the Call Emmy Platform and Services. By using the Call Emmy Platform and/or Services, you agree that Call Emmy may assess, and you will be obligated to pay, $10,000 per each day that you: (i) maintain User, Service Provider or Child information (including but not limited to, names, addresses, phone numbers, or email addresses) or copyrighted material that you scraped (either directly or indirectly in a manual or automatic manner) from the Call Emmy Platform, or (ii) otherwise mis-use or mis-appropriate Call Emmy Platform content, including but not limited to, use on a "mirrored", competitive, or third party site. This obligation shall be in addition to any other rights Call Emmy may have under these Terms or applicable law. Further, in order to protect the integrity of the Call Emmy Platform and the Services, Call Emmy reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Call Emmy Platform.
Even after your right to use the Call Emmy Platform is terminated or suspended, this Agreement will remain enforceable against you.
You may terminate this Agreement at any time by ceasing all use of the Call Emmy Platform. All sections which, (a) expressly survive termination of this agreement, (b) apply to activities that may be conducted without access to the Call Emmy Platform, or (c) by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
- Links to Other Websites
Links (such as hyperlinks) from the Call Emmy Platform to other sites on the Web do not constitute the endorsement by Call Emmy of those sites or their content. Such links are provided as an information service, for reference and convenience only. Call Emmy does not control any such sites, and is not responsible for their content. The existence of links on the Call Emmy Platform to such websites (including without limitation external websites that are framed by the Call Emmy Platform as well as any advertisements displayed in connection therewith) does not mean that Call Emmy endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
As part of the functionality of the Call Emmy Platform, you may link your account with online accounts you may have with third party service providers (each such account, a "Third Party Account") by either: (i) providing your Third Party Account login information through the Call Emmy Platform; or (ii) allowing Call Emmy to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Call Emmy and/or grant Call Emmy access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Call Emmy to pay any fees or making Call Emmy subject to any usage limitations imposed by such third party service providers. By granting Call Emmy access to any Third Party Accounts, you understand that (i) Call Emmy may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the "SNS Content") so that it is available on and through the Call Emmy Platform via your account, including without limitation any friend lists, and (ii) Call Emmy may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered Personal Information for all purposes of this Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Call Emmy Platform. Please note that if a Third Party Account or associated service becomes unavailable or Call Emmy’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Call Emmy Platform. You will have the ability to disable the connection between your account on the Call Emmy Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Call Emmy makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Call Emmy is not responsible for any SNS Content. You acknowledge and agree that Call Emmy may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Call Emmy Platform. At your request made via e-mail to support@CallEmmy.com, Call Emmy will deactivate the connection between the Call Emmy Platform and your Third Party Account and delete any information stored on Call Emmy’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
- Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively "Proprietary Material") that Users see or read through the Call Emmy Platform is owned by Call Emmy, excluding Personal Information that Call Emmy has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Call Emmy owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Call Emmy Platform without Call Emmy's express prior written consent and, if applicable, the holder of the rights to the Personal Information. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Call Emmy and, if applicable, the holder of the rights to the Personal Information.
The service marks and trademarks of Call Emmy, including without limitation the word Call Emmy and the Call Emmy logos, are service marks and trademarks owned by Call Emmy. Any other trademarks, service marks, logos and/or trade names appearing via the Call Emmy Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
- Copyright Complaints and Copyright Agent
Call Emmy respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Call Emmy Platform infringe upon your copyright or other intellectual property right, please send the following information to Call Emmy's Copyright Agent at: Call Emmy, Inc., 601 16th street, suite C251, Golden, CO 80401.
- A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Call Emmy Platform where the material you claim is infringed is located. Include enough information to allow Call Emmy to locate the material, and explain why you think an infringement has taken place;
- A description of the location where the original or an authorized copy of the copyrighted work exist -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
- An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
- Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE SERVICE 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 PURPOSE AND NON-INFRINGEMENT. Call Emmy MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICE OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. Call Emmy DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER Call Emmy NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY TASK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICE.
NEITHER Call Emmy NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. ANY SCREENING OF A USER AND HIS, HER OR ITS INFORMATION BY Call Emmy IS LIMITED AND SHOULD NOT BE TAKEN AS COMPLETE, ACCURATE, UP-TO-DATE OR CONCLUSIVE OF THE INDIVIDUAL'S OR ENTITY'S SUITABILITY AS A PROVIDER OF CHILD CARE SERVICES.
NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.
COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
- No Liability
Call Emmy is not responsible for the conduct, whether online or offline, of any User of the Call Emmy Platform or Services. Moreover, Call Emmy does not assume and expressly disclaims any liability that may result from the use of information provided on the Call Emmy Platform. All Users, including both Clients and Service Providers, hereby expressly agree not to hold Call Emmy (or Call Emmy's officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors, recruiters, corporate partners or resellers, hereinafter "Affiliates") liable for the actions or inactions of any User or other third party or for any information, instruction, advice or services which originated through the Call Emmy Platform, and, to the maximum extent permissible under applicable law, Call Emmy and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
From time to time, third party business entities (“Entity Affiliates”) may facilitate or promote access to the Call Emmy Platform to provide Services for their members, partners, affiliates, contractors, and/or employees. By accessing the Call Emmy Platform through an Entity Affiliate or due to an Entity Affiliates’ promotion, you are agreeing to release, indemnify, and hold harmless the Entity Affiliate from any loss, liability, injury, death, damage, or cost that may result from the use of the Call Emmy Platform or the Services, regardless of the cause. Entity Affiliates are intended third party beneficiaries for purposes of this provision. Nothing in this provision restricts or limits in any way the limitation of liability, indemnification rights, or any other provision of these Terms applicable to Call Emmy.
YOU ACKNOWLEDGE AND AGREE THAT Call Emmy IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABLITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD Call Emmy, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, "LIABILITIES") THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY Call Emmy OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL Call Emmy, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT Call Emmy OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Call Emmy, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys' fees and costs incurred, in connection with (i) your use or inability to use the Call Emmy Platform, or (ii) any content submitted by you or using your account to the Call Emmy Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Call Emmy 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 claim or matter without the written consent of Call Emmy.
- Dispute Resolution and Arbitration Agreement
(a) Agreement to Binding Arbitration Between You and Call Emmy
YOU AND Call Emmy MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Call Emmy ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Call Emmy, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and Call Emmy’s partners and service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND Call Emmy. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Call Emmy Platform, the Services, any other goods or services made available through the Call Emmy Platform, your relationship with Call Emmy, the threatened or actual suspension, deactivation or termination of your User account or this Agreement, background checks performed by or on Call Emmy’s behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Call Emmy, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Call Emmy and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND Call Emmy ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND Call Emmy MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND Call Emmy BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST Call Emmy, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Call Emmy agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Call Emmy agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Call Emmy will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Clients or Service Providers, but is bound by rulings in prior arbitrations involving the same Client or Service Provider to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (i) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Call Emmy agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Call Emmy, Call Emmy will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
If Call Emmy initiates arbitration under this Arbitration Agreement, Call Emmy will pay all AAA filing and arbitration fees.
With respect to any Claims brought by Call Emmy against a Service Provider, or for Claims brought by a Service Provider against Call Emmy that: (A) are based on an alleged employment relationship between Call Emmy and a Service Provider; (B) arise out of, or relate to, Call Emmy’s actual deactivation of a Service Provider’s User account or a threat by Call Emmy to deactivate a Service Provider’s User account; (C) arise out of, or relate to, Call Emmy’s actual termination of a Service Provider’s Agreement with Call Emmy under the termination provisions of this Agreement, or a threat by Call Emmy to terminate a Service Provider’s Agreement; (D) arise out of, or relate to, Service Provider Fees (as defined in this Agreement, including Service Fees related to such Service Provider Fees), tips, or average hourly guarantees owed by Call Emmy to Service Providers for Services, other than disputes relating to referral bonuses, other Call Emmy promotions, or consumer-type disputes, or (E) arise out of or relate to background checks performed in connection with a user seeking to become a Service Provider (the subset of Claims in subsections (A)-(E) shall be collectively referred to as “Service Provider Claims”), Call Emmy shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Call Emmy pursuant to the fee provisions above). However, if you are the party initiating the Service Provider Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Clients, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or as otherwise expressly provided in this subsection (e). Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this Section 17(e), the term “Service Provider” shall be deemed to include both Service Providers and Service Provider applicants who have not been approved to provide Services through the Call Emmy Platform.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws Call Emmy may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, Call Emmy agrees that it will not seek such an award.
If the arbitrator issues you an award that is greater than the value of Call Emmy’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (i) below, then Call Emmy will pay you the amount of the award or U.S. $1,000, whichever is greater.
(f) Location and Manner of Arbitration.
Unless you and Call Emmy agree otherwise, any arbitration hearings between Call Emmy and a Client will take place in the county of your billing address, and any arbitration hearings between Call Emmy and a Service Provider will take place in the county in which the Service Provider provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for an AAA arbitration. If your Claim is for $10,000 or less, Call Emmy agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(g) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; and (3) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(i) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Call Emmy may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Call Emmy. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
- Governing Law
You and Call Emmy agree that if any portion of Section 17 titled "Dispute Resolution" is found illegal or unenforceable, that portion will be severed, and the remainder of the section will be given full force and effect. Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the State of Colorado, without regard to choice of law principles.
- Special Promotions
Call Emmy may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Call Emmy, and can be activated, modified or removed at any time by Call Emmy without advance notification and the liability of any of Call Emmy’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to this Agreement, including but not limited to Section 14 of this Agreement.
- Geographic Restrictions
Call Emmy is based in the State of Colorado in the United States. We provide the Call Emmy Platform for use only by persons located in the United States. We make no claims that the Call Emmy Platform or any of its content is accessible or appropriate outside of the United States. Access to the Call Emmy Platform may not be legal by certain persons or in certain countries. If you access the Call Emmy Platform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
- General Provisions
Failure by Call Emmy to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right, will be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflict of laws rules. This Agreement constitutes the entire agreement between you and Call Emmy 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. This Agreement will inure to the benefit of Call Emmy, its successors and assigns.
- Changes to this Agreement and the Call Emmy Platform