Effective Date: May 15, 2018
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND toSERVO HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 26 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST toSERVO 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. AS A PROVIDER, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 26.
MATERIAL TERMS AND NOTICES
Providers using the toSERVO must fully comply with Title 16 Occupational and Professional Licensing, Chapter 48 Private Law Enforcement Practitioners of the New Mexico Administrative Code (“16.48.1 NMAC”), including holding an active security guards license. Failure to be in full compliance with 16.48.1 NMAC will result in immediate suspension from performing further patrols for toSERVO until compliance can be shown.
ANY DECISION BY USERS TO OFFER OR ACCEPT SERVICES THROUGH THE toSERVO PLATFORM IS A DECISION MADE IN SUCH USER'S SOLE DISCRETION. EACH SERVICE PROVIDED BY A PROVIDER TO ITS CUSTOMER SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN THAT PROVIDER AND CUSTOMER. PROVIDERS ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR SUBCONTRACTORS OF toSERVO. toSERVO MAKES NO REPRESENTATION AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OF USERS, NOR DOES IT HAVE CONTROL OVER OR MAKE REPRESENTATIONS REGARDING THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER RELATING TO ANY SERVICES. toSERVO DOES NOT HAVE CONTROL OVER THE QUALITY, TIMING OR LEGALITY OF SERVICES DELIVERED BY PROVIDERS. toSERVO HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICES PROVIDED TO CUSTOMERS BY PROVIDERS, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANT OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE. EXCEPT AS OTHERWISE SET FORTH HEREIN, toSERVO IS NOT AFFILIATED WITH, ENDORSED OR SPONSORED BY ANY PROVIDER.
toSERVO requires all Providers using our platform to hold on their person while performing services for toSERVO an active New Mexico Security Guard License. This license requires a background check and must be renewed with a new background check every two years. toSERVO also requires each Provider to submit to toSERVO a government-issued photo ID. Although toSERVO performs background and identity checks on each Provider, toSERVO cannot confirm that each Provider is who they claim to be, and therefore, toSERVO cannot and does not assume any responsibility for the accuracy or reliability of the identity or background check information or any information provided through the Service.
YOU ACKNOWLEDGE AND AGREE THAT toSERVO IS NOT LIABLE FOR DAMAGE THAT MIGHT ARISE OUT OF THE SERVICES. toSERVO IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING PROVIDERS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY SERVICES. Each User should exercise caution and common sense to protect their personal safety and property, just as you would when interacting with any person with whom you do not know.
Users of the toSERVO Platform contract for the Services directly with other Users. toSERVO is not a party to any contracts for the Services. The toSERVO Platform facilitates these contracts by supplying a medium through which Customers can connect with Providers, schedule the Services, and make payments for the Services directly from the Customer to the Provider. Notwithstanding the foregoing, Customers may not circumvent the toSERVO Platform by using the toSERVO Platform to connect with Providers and then engage those Providers for Services outside of the toSERVO Platform.
No refunds or credits will be provided once the Customer's credit card has been charged. While we will use commercially reasonable efforts to protect 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.
toSERVO's cancellation policy for specific Services is as follows:
toSERVO cannot guarantee that a cancelled Service appointment will be selected by another Provider and rescheduled or that the Service request will be completed. Thus, your cancellation or failure to timely show up to perform a scheduled appointment could negatively impact your Customer and the toSERVO Platform.
We may, without further notice or warning and in our discretion, monitor or record telephone conversations that we have with you or anyone acting on your behalf for quality control and training purposes or to protect our rights. We may, without further notice or warning, and in our discretion, access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users that occur through the toSERVO Platform for our business purposes, including to provide and improve customer service and the toSERVO Platform, fraud prevention, and to identify violations of this Agreement.
As a Provider, you hereby acknowledge and consent to toSERVO's collection of the latitude and longitude location ("Location Coordinates") of your Mobile Device so that we can provide our services to you and your Customers. For example, we may collect Location Coordinates when you report the status of a checkpoint. toSERVO does not collect or use Location Coordinates data for the purpose of controlling or monitoring the manner and means by which you provide the Services contemplated by this Agreement, or the frequency with which you use the toSERVO Platform to book Patrols. By executing this Agreement, you agree to the use and disclosure of Location Coordinates information as described above.
We reserve the right to withdraw or amend the toSERVO Platform, and any service we provide on the toSERVO Platform in our sole discretion without notice. We will not be liable if for any reason that all or any part of the toSERVO Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the toSERVO Platform, or the entire toSERVO Platform, to Users for any reason or no reason.
You are responsible for:
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the toSERVO Platform or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.
THE SERVICE IS ONLY A VENUE FOR CONNECTING USERS. EXCEPT AS OTHERWISE SET FORTH HEREIN, toSERVO IS NOT AFFILIATED WITH ANY CARRIER, PROVIDER, OR THIRD PARTY SERVICE. ANY DISPUTE YOU HAVE WITH ANY CARRIER, PROVIDER, OR THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE toSERVO (AND OUR OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
You may not modify, alter, reproduce, or distribute the toSERVO Platform. You may not directly rent, lease, lend, sell, redistribute, or sublicense the toSERVO Platform. You must not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the toSERVO Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service), nor attempt to disable or circumvent any security or other technological measure designed to protect the toSERVO Platform or any content available through the toSERVO Platform.
The toSERVO Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by toSERVO, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You must not:
Except as permitted herein, you must not access or use for any commercial purposes any part of the toSERVO Platform or any services or materials available through the toSERVO Platform.
You may use the toSERVO Platform only for lawful purposes and in accordance with this Agreement. You agree not to use the toSERVO Platform:
Additionally, you agree not to:
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the toSERVO Platform, you may contact us at toSERVO, LLC, Attn: Copyright Compliance, PO Box 91674, Albuquerque, NM 87199 or admin@toSERVO.com.
Any notice alleging that materials hosted by or distributed through the toSERVO Platform infringe intellectual property rights must include the following information:
Repeat Infringers. toSERVO will promptly terminate without notice the accounts of Users that are determined by toSERVO to be "Repeat Infringers" to the fullest extent permitted under applicable law. A Repeat Infringer is a User who has been notified of infringing activity or has had User Contributions (as defined in Section 17 below) removed from the toSERVO Platform at least twice.
The toSERVO Platform may contain profiles and other interactive features (collectively, "Interactive Services") that allow Users to post, submit, publish, display or transmit to other Users (hereinafter, "post") content, photographs, images, or other related materials (collectively, "User Contributions") on or through the toSERVO Platform, including User-supplied profile pictures and patrol/service-related photos.
You represent and warrant that:
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not toSERVO, are fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other User of the toSERVO Platform.
In exchange for the right to use the toSERVO Platform, Users who post their User Contributions hereby irrevocably grant to toSERVO the following rights in connection with the display, distribution, transmission, or broadcasting on any media, including the Internet, of their User Contributions in connection with the toSERVO Platform:
Such right applies in any media now known or not currently known, and such right is hereby deemed to be perpetual, non-exclusive, unrestricted, royalty-free, worldwide, irrevocable, transferable, and sub-licensable (through multiple tiers). User hereby releases toSERVO from (and shall not bring any) proceeding, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon the use of your User Contributions.
We have the right to:
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the toSERVO Platform. YOU WAIVE AND HOLD HARMLESS toSERVO AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
We understand that occasionally disputes may arise between or among our Users. In the event a dispute initiated by either a Provider or a Customer cannot be resolved independently, you hereby agree, at toSERVO’s request, to participate with good faith, to the extent you are reasonably able to do so, in a neutral resolution, mediation, or arbitration process conducted by toSERVO or a neutral third-party mediator or arbitrator selected by toSERVO. Notwithstanding the foregoing, you acknowledge and agree that toSERVO is under no obligation to become involved in or impose resolution in any dispute between or among Users or any third party.
This Agreement is effective upon your creation of a User account, as amended by any modifications made pursuant to Section 1. You may discontinue your use of the toSERVO Platform or participation in the Services at any time, for any reason. We may suspend or deactivate your User account (either as a Provider and/or Customer), or revoke your permission to access the toSERVO Platform, at any time, for any reason, upon notice to you. We reserve the right to refuse access to the toSERVO Platform to any User for any reason not prohibited by law. Either party may terminate the Agreement for any reason upon written notice to the other party. The terms of this Agreement, and any subsequent modifications of this Agreement, shall remain in effect at all times after you or toSERVO terminate your participation or access to the toSERVO Platform or Services.
We may update the content on this toSERVO Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the toSERVO Platform may be out of date at any given time, and we are under no obligation to update such material.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the toSERVO Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT (INCLUDING MOBILE DEVICES), COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE toSERVO PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE toSERVO PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY toSERVO PLATFORM LINKED TO IT.
YOUR USE OF THE toSERVO PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE toSERVO PLATFORM IS AT YOUR OWN RISK. THE toSERVO PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE toSERVO PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER toSERVO NOR ANY PERSON ASSOCIATED WITH toSERVO MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE toSERVO PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER toSERVO NOR ANYONE ASSOCIATED WITH toSERVO REPRESENTS OR WARRANTS THAT THE toSERVO PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE toSERVO PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE toSERVO PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE toSERVO PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
toSERVO HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
IN NO EVENT WILL toSERVO, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE toSERVO PLATFORM, ANY toSERVO PLATFORMS LINKED TO IT, ANY CONTENT ON THE toSERVO PLATFORM OR SUCH OTHER toSERVO PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE toSERVO PLATFORM OR SUCH OTHER toSERVO PLATFORMS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
You agree to defend, indemnify and hold harmless toSERVO, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of this Agreement or your use of the toSERVO Platform, including, but not limited to, any use of the toSERVO Platform's content, Services and products other than as expressly authorized in this Agreement or your use of any information obtained from the toSERVO Platform.
Generally, in the interest of resolving disputes between you and toSERVO in the most expedient and cost effective manner, YOU AND toSERVO MUTUALLY AGREE THAT EVERY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND toSERVO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
If you do not want to be subject to this Dispute Resolution provision with respect to Provider Claims, you may opt out by notifying the Company in writing of your decision, either by sending, within thirty (30) days of the date you receive this Agreement, (1) an electronic mail to legal@toSERVO.com, stating clearly your name and intent to opt out of this Dispute Resolution provision or (2) by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.), to: Legal Department, toSERVO, LLC, PO Box 91674, Albuquerque, NM 87199. To be effective, the letter under option (2) must clearly indicate your intent to opt out of this Dispute Resolution Provision, and must be dated and signed. If sent by mail, the letter must be post-marked with a date less than thirty (30) days from the date you receive this Agreement. Should you choose not to opt out of this Dispute Resolution Provision within the 30-day period, you and toSERVO will be bound by the terms of this Dispute Resolution Provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution Provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution Provision.
Except as set forth in Section 26 entitled "Dispute Resolution; Arbitration of Claims,” this Agreement is governed and interpreted pursuant to the laws of the State of New Mexico, United States of America, notwithstanding any principles of conflict of law. For all disputes, not subject to arbitration under Section 30 hereof, you agree to submit to the personal jurisdiction and venue of the courts located within Bernalillo County, New Mexico, and waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
No waiver by toSERVO of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of toSERVO to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
This Agreement may not be assigned or transferred by you without toSERVO's prior written consent. You agree that this Agreement and all incorporated agreements may be automatically assigned by toSERVO, in our sole discretion, in accordance with the "Notice" section of this Agreement.
You and toSERVO are independent contractors, and no agency, partnership, joint venture, employer-employee, contractor-subcontractor, or franchisor-franchisee relationship is intended or created by this Agreement.
All other feedback, comments, requests for technical support and other communications relating to the toSERVO Platform should be directed to: support@toSERVO.com.
Except as explicitly stated otherwise, any notice to toSERVO shall be given by certified mail, postage prepaid and return receipt requested to:
P.O. Box 91674
Albuquerque, NM 87199
Such notices shall be deemed given three days after the date of mailing. Any notices to you shall be provided to you through the toSERVO Platform or given to you via the email address you provided to toSERVO during the registration process or as otherwise listed in your User or Provider account, and such notice shall be deemed given immediately upon sending. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to toSERVO during the registration process. In such case, notice shall be deemed given three days after the date of mailing.