1. Use of the Platform; Accounts. You may only view, download, print one copy of the materials from, and use the Platform subject to the following conditions: (a) the Platform and any materials may be used solely for Your mover business purposes; and (b) You may not modify or remove any copyright and other proprietary notices contained in any materials provided through the Platform and on any copies of such materials. Any use of the Platform not expressly granted herein is prohibited. You may not (a) reproduce, republish, publicly display, perform, distribute, exploit, or otherwise use the materials or the Platform for any public or commercial purpose (except as provided above) or prepare any modification or prepare derivative works based on the contents from the Platform; (b) propagate any virus, worms, trojan horses, or other programming routine intended to damage any system or data; (c) access the Platform for the purpose of building a competitive product or service or copying its features or user interface; or (d) use the Platform, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Oncue ’s prior written consent. You may authorize third-parties (which may include Oncue Enterprises), as Your agent(s) to use the Platform on Your behalf, subject to You being responsible to Oncue Enterprises for any such use by Your agents. You also agree that You will not use the Platform for any unlawful purposes.
You agree that the Platform is solely a means for communicating with customers that are not affiliated with Oncue Enterprises (“Customers”). You may be presented with opportunities for You to provide moving services (a “Move”) to Customers. It is up to You whether you choose to accept a Move. If You accept the Move, Oncue Enterprises will not forward the Move information to any other party. In the event You decline a Move, You may be paid a smaller Fee under Section 2 as determined by Oncue Enterprises. Any agreement for a Move is between You and the applicable Customer (“Mover Agreement”). Oncue Enterprises is not a party to, takes no liability under, and has no obligations under any Mover Agreement and/or for a Move.
Use of certain portions of the Platform may require registration and registration information in order to access them (“Registration Information”). It is entirely up to You whether You register and provide the Registration Information. Oncue Enterprises may initially and on an ongoing basis, accept or reject a registration in its sole discretion. You agree that any and all Registration Information will be true, accurate, and complete, and that You will update the Registration Information immediately when it changes. You may not share Your account with any other party and You are responsible for maintaining the confidentiality of Your username, password and other account information. Oncue Enterprises is not responsible for any of the foregoing. If You believe Your account information has been compromised, You are responsible for contacting Oncue Enterprises immediately at [email protected]
You acknowledge and agree that Oncue Enterprises has the right to perform background checks on Your organization and any of Your employees and contractors, investigate the results of any such background checks, and decline You as a mover (and Your right to use the Platform) for any failure of the foregoing, at any time. You agree to follow Oncue Enterprises’ standard guidelines for moving companies as provided by Oncue Enterprises to You, from time to time (“Requirements”). Oncue Enterprises may terminate Your right to use the Platform for any failure of the foregoing.
2. Fees; Payments. For each Move You accept, You will be paid the Fees corresponding to the Move as presented to You through the Platform and after the Customer has paid Oncue Enterprises and You have successfully completed the Move for the Customer. Without limiting the generality of the foregoing, please be aware that Customers have certain termination and rescheduling rights prior to the Move occurring. You agree to use commercially reasonable efforts to accommodate any rescheduling requests.
3. Intellectual Property Rights; Confidentiality. The underlying software, algorithms (and the output of the algorithms and the Platform), materials on the Site, and other materials accessed through the use of the Platform are the exclusive property of Oncue Enterprises, and are protected by US Copyright Laws and international treaties. Oncue Enterprises owns and retains any and all patent, trademark, trade secret, and other intellectual property rights in the Platform and the Site and has a royalty free, worldwide, non-exclusive, and unrestricted license to any information it collects on behalf of You. You own all data you input into the Platform (“Your Data”).
As used herein, “Confidential Information” means all proprietary information of Oncue Enterprises (“Disclosing Party”) disclosed to You (“Receiving Party”), whether orally or in writing. Confidential Information may include business information, information relating to a Customer, the Platform, other technology and technical information, product designs, business processes, Your Data, and the terms and existence of this Agreement. Receiving Party agrees that it shall not disclose any Confidential Information of Disclosing Party except to exercise its rights under this Agreement. Oncue Enterprises may use, for its business purposes, data (including geo-location information), text, and files that pass through and/or may be generated by the use of the Platform, in anonymized format. Disclosing Party represents and warrants that it will maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
4. Trademarks. Oncue Enterprises is a service mark and trademark of Oncue Enterprises. Other marks, graphics, and logos used in the provision of the Platform are Oncue Enterprises’ (or its licensor’s) service marks, trademarks, and trade dress (“Marks”) and are the sole and exclusive property of Oncue Enterprises (or its licensor’s). Except to list that You provide the Services as referenced under this Agreement, Oncue Enterprises’ Marks may not otherwise be used in any manner by You.
5. Postings and Feedback. If You submit any postings, feedback, ideas, or the like (“Information”) through the use of the Platform, You acknowledge and agree that: (a) You have the right to provide the Information free of any restriction, (b) the Information is true and accurate, and (c) upon submission, the Information then becomes the property of Oncue Enterprises without any obligation of Oncue Enterprises to You of any kind, and Oncue Enterprises may use the Information in any manner without any compensation or reimbursement of any kind from Oncue Enterprises.
7. Links. The Platform may contain links to other websites, including to other goods sold or bought or parties referred through the use of the Platform (“Third-Party Facilitator”). Any such links do not represent an endorsement, sponsorship, or approval of the material on and/or generally of such website. Without limiting the generality of the foregoing, please be aware that Third-Party Facilitator’s are solely responsible for any goods sold or purchased from or referral provided by them through the Platform and for the delivery thereof.
8. WARRANTIES AND DISCLAIMER. You represent and warrant that (i) You are licensed and are otherwise authorized to provide moving services and all Moves (including but not limited to having any and all licenses and other authorizations); (ii) You comply with all federal, state, and local laws, rules, and regulations, including the laws related to moving services (including but not limited to providing Your Mover Agreement, move documents, and other disclosure documents); (iii) You understand that Oncue Enterprises in no way screens Customers; (iv) You will provide minimum liability of .60 per pound per article for each Move; and (v) You and your personnel have and will maintain a valid policy for general liability, transportation, personal injury, workers’ compensation, and other insurances applicable to Your business and consistent with industry practices. You shall also name Oncue Enterprises as an additional insured under such policies and provide Oncue Enterprises with a copy of such polices within ten (10) days of execution of this Agreement and thereafter, upon request.
THE MATERIALS ON THE SITE AND THE PLATFORM ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ONCUE ENTERPRISES DISCLAIMS ANY AND ALL LIABILITY FROM ANY INACCURACIES RELATED TO THE PLATFORM, THAT THE PLATFORM AND/OR CUSTOMERS WILL MEET YOUR REQUIREMENTS, THE CONDUCT OF CUSTOMERS, THE ACCURACY OF ANY INFORMATION SUBMITTED BY CUSTOMERS THROUGH THE PLATFORM, UNDER ANY MOVER AGREEMENT, AND/OR THE PLATFORM COMPLY WITH ANY LAW, REGULATION, OR CODE. CERTAIN STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES AND/OR LIMITATIONS ON CERTAIN DAMAGES. IF ANY OF THESE LAWS APPLY TO YOU, SOME OF THE PROVISIONS IN THIS SECTION MAY NOT APPLY NOT YOU.
9. LIMITATIONS. IN NO EVENT SHALL ONCUE ENTERPRISES OR ITS EMPLOYEES, DIRECTORS, OFFICERS, CONTRACTORS, OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE MATERIALS PROVIDED ON, OR OTHERWISE RELATED TO, THE PLATFORM OR ARISING UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, EVEN IF ONCUE ENTERPRISES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ONCUE ENTERPRISES’ LIABILITY FOR DIRECT DAMAGES SHALL BE LIMITED TO THE FEES PAID TO YOU IN THE TWELVE MONTHS PRIOR TO WHEN THE CLAIM ACCRUED. ONCUE ENTERPRISES TAKES NO LIABILITY FOR ANY MOVER, THE SERVICES, AND DAMAGE TO YOU AND/OR ANY OF YOUR GOODS OR PROPERTY.
10. Indemnity. You shall defend, indemnify and hold Oncue Enterprises and its employees, contractors, shareholders, subsidiaries, affiliates, and officers harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any claims made or brought against Oncue Enterprises by a third party (i) resulting from Your or Customers use of the Platform or the Services, (ii) the actions or inactions of any Customers, (iii) Your representations and obligations under this Agreement or the Mover Agreement, and (iv) any allegations that any Information or Registration Information infringes the rights of such third party. You will not, in any event, settle any such claim or matter without the prior written consent of Oncue Enterprises.
11. Term and Termination. This Agreement is effective upon Your first access to or use of the Platform. Oncue Enterprises may suspend or discontinue all or part of the Platform (in general or specifically for You) for any reason, with or without notice to You, except that this Agreement shall remain in full force and effect for any Moves that You have already accepted. Notwithstanding the foregoing, Oncue Enterprises will attempt to notify You at the e-mail address You have on file with Oncue Enterprises. Subject to You meeting Your pre existing Services obligations, You may stop using the Platform at any time.
12. Publicity. Each party may include the other’s name in its customer or vendor lists. You agree to act as a reference for Oncue Enterprises and Oncue Enterprises may issue a press release and engage in other promotions related to this Agreement.
13. Modifications. Oncue Enterprises may make changes to the Platform and/or the Agreement at any time and by posting notice of a new version of the Agreement on the Site. You must check the Agreement before each use of the Platform.
14. Governing Law; Disputes. Any disputes arising out of the use of the Platform shall be governed by the laws of California, without regard to any conflict of laws principles. The parties agree to exclusively resolve any and all causes of action, disputes, or other claims or actions arising out of or related to this Agreement (“Disputes”) through final and binding arbitration (“Arbitration”). The parties agree that Arbitration shall solely be governed by the Federal Arbitration Act. Arbitration shall be before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association and, where appropriate, the Supplementary Procedures for Consumer Related Disputes (“AAA Rules”). Arbitration fees and arbitrator compensation will be governed by the AAA Rules. The arbitrator’s decision shall be the final and binding for any and all matters arising under this Agreement. Without limiting the generality of the foregoing, You agree that under no circumstances will You ever be part of a class action against Oncue Enterprises or its employees, contractors, shareholders, subsidiaries, affiliates, and officers. You agree that regardless of any statute or law to the contrary, any Dispute must be filed within one (1) year after such Dispute arose, after which point, it shall be barred.
15. Miscellaneous. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties is created hereby. Each party is correspondingly responsible for any and all taxes, benefits, vacation, and the like for its employees and contractors. Oncue Enterprises may provide notice to You under this Agreement to the latest address it has on file for You. You may provide notice to Oncue Enterprises at the following address: 344 20th St, Oakland CA 94612. This Agreement may only be modified by an agreement signed by an officer of Oncue Enterprises. You may not assign this Agreement for any reason whatsoever. No failure or delay in exercising any right by Oncue Enterprises shall constitute a waiver of such right. If any provision of this Agreement is held by the arbitrator to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. Oncue Enterprises shall not be liable to You for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents it in performing any of its obligations, (ii) is beyond the control of, and without the fault or negligence of, Oncue Enterprises, or (iii) by the exercise of reasonable diligence Oncue Enterprises is unable to prevent or provide against. You represent and warrant that You are not listed on any U.S. Government list of prohibited or restricted entities. You also acknowledge that the Platform may be subject to other U.S. and foreign laws and regulations governing the use of the Platform and agree to comply with all such laws.During the period commencing on the Effective Date and ending one (1) year after Your last use
of the Platform (the “Restricted Period”), You agree to not hire or solicit, directly or indirectly,
any employees or contractors of Oncue Enterprises (collectively, “Personnel”). If you violate
this paragraph, Oncue Enterprises may seek available recourse in its sole discretion.
Additionally, if during the Restricted Period, You hire any Personnel, in addition to any remedies
available to Oncue Enterprises, You shall pay Oncue Enterprises a fee equal to $12,000 for each
such hire of Personnel within fifteen days of such hire; provided, further, that if You are still
using the Platform at the time of such breach of the preceding sentence, Oncue Enterprises may
immediately terminate your use of the Platform without any refund for prepaid services. This Agreement constitutes the entire agreement between Oncue Enterprises and You, and supersedes any and all prior or contemporaneous agreements, understandings, and representations with respect to the information on and the use of the Platform.
16. Authority. By accessing and/or using the Platform, You represent and warrant that: (i) You are at least 18 years old; and (ii) You have the right and capacity to enter into this Agreement on behalf of Yourself or the entity You are entering into it on behalf of.