SERCLE, INC. SOFTWARE APPLICATION TERMS AND CONDITIONS OF USE


THIS SOFTWARE APPLICATION AND RELATED SERVICES ARE PROVIDED SUBJECT TO YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE READ THE FOLLOWING INFORMATION CAREFULLY. YOUR CONTINUED USE OF THE SOFTWARE WILL INDICATE YOUR AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, PROMPTLY UNINSTALL SAME.
1. Contractual Relationship
These Terms of Use ("Terms") govern the access or use by you, an individual, from within the United States and its territories and possessions of software applications, any websites, content, products, and related services (jointly "Application") made available in the United States and its territories and possessions by SerCle, Inc. and its subsidiaries and affiliates (collectively, the “Company”). PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. In these Terms, the words "including" and "include" mean "including, but not limited to."
Your access and use of the Application constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and the Company. If you do not agree to these Terms, you may not access or use the Application. These Terms expressly supersede prior agreements or arrangements with you. The Company may immediately terminate these Terms or use of the Application with respect to you, or generally cease offering or deny access to the Application or any portion thereof, at any time for any reason.
The Company may amend the Terms related to the Services from time to time. Amendments will be effective upon the Company’s posting of such updated Terms at this location or the amended policies or supplemental terms on the Application. Your continued access or use of the Application after such posting constitutes your consent to be bound by the Terms, as amended.
2. The Application
The Application constitute a technology platform that enables users of the Company’s software applications or websites provided to arrange and schedule a variety of service contractors under agreement with the Company or certain of the Company’s affiliates (jointly “Service Provider”).
Subject to full compliance with these Terms of Use, the Company grants you a personal, nonexclusive, nontransferable, nonsublicensable, terminable license to access and use the Application. You agree to not access, reproduce, duplicate, copy, sell, re-sell, modify, distribute, transmit, or otherwise exploit the Application or any of its content for any purpose except for your personal use and as described in this Terms of Use, without the express written consent of the Company. The Company may modify, update, suspend or discontinue the Application, in whole or in part, at our sole discretion for any or no reason, at any time and with or without notice. The Company shall not be liable to any user or other third party for any such modification, update, suspension or discontinuance.
3. USER ACCOUNTS.
In order to use most aspects of the Application, you must register for and maintain an active personal user account ("Account"). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to the Company certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Application or the Company's termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by the Company in writing, you may only possess one Account.
4. MESSAGING
By creating an Account, you agree that the Services may send you informational messages as part of the normal business operation of your use of the Services, either as messages in the application or as text (SMS) messages. You may opt-out of receiving text (SMS) messages from the Company at any time. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Application.
5. USER CONDUCT
As a condition of your access and use of the Application and your submission or access to any ratings, reviews, communications (including messages through the Service) and text (SMS) messages), information, data, text, photographs, audio clips, audiovisual works, or other materials on the Application (collectively, the “Content”), you agree not to use the Application for any purpose that is unlawful, objectionable, or prohibited by these Terms of Use, or any other purpose not reasonably intended by the Company. By way of example, and not as a limitation, you agree not to:
a. intentionally or unintentionally violate these Terms of Use, other applicable agreement with the Company, and any applicable local, state, national or international law, and any rules and regulations having the force of law;
b. use the Application in any manner that violates any relevant law or that infringes, misappropriates or violates any third party's rights, including, but not limited to, transmitting any Content that may infringe, misappropriate or violate a third party's rights of publicity, contractual rights, fiduciary rights or intellectual property rights;
c. use the Application or its Content for any purposes not authorized by this Terms of Use, including commercial, political, or religious purposes, including the submission or transmission of any Content that contains advertisements, promotional materials, junk mail, or any other form of solicitation;
d. reproduce, duplicate, copy, modify, sell, re-sell or exploit any Content or the Application for any commercial, educational, or any other non-personal purpose or any for any purpose unrelated to your personal purchasing decisions, without the express written consent of the Company, which consent may be withheld by the Company in our sole discretion;
e. post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure, interfere or attempt to interfere with the proper working of the Application or any activities conducted on the Application;
f. harass, threaten, intimidate, impersonate, or attempt to impersonate, any other person, falsify your contact or other information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with the Company, or otherwise attempt to mislead others as to the identity of the sender or the origin of a review or rating;
g. knowingly provide or submit false or misleading information;
h. use the Application if you are under the age of eighteen (18);
i. take any action that would undermine the review and rating process of the Application;
j. attempt to gain unauthorized access to the Application, other user accounts, or other computer systems or networks connected to the Application;
k. use the Application in any way that could interfere with the rights of the Company or the rights of other users of the Application;
l. attempt to gain unauthorized access to any portion or feature of the Application, or any other systems or networks connected to the Application or to any server used by the Company by hacking, password 'mining' or any other illegitimate or unauthorized means, including attempting to obtain password, account, or any other personal or private information from any other Application user;
m. sell, share, or otherwise transfer your account username, password, other information, or your rights or obligations under these Terms of Use;
n. transmit or submit any transmission or other materials that are encrypted or that contains viruses, Trojan horses, worms, time bombs, spiders, cancelbots or other computer programming routines that is likely or intended to damage, interfere with, disrupt, impair, disable or otherwise overburden the Application;
o. access, download, monitor, or copy any information contained in the Application through artificial means (including but not limited to use any 'deep-link', 'scraper', 'robot', 'spider' or other automatic device, program, algorithm or methodology, or any similar or equivalent automatic or manual process, or in any way reproduce or circumvent the navigational structure or presentation of the Application or any content, to obtain or attempt to obtain any Content, materials, documents or information through any means not purposely made available through the Application; or
p probe, scan or test the vulnerability of the Application or any network connected to the Application, nor breach the security or authentication measures on or of the Application or any network connected to the Application. You may not reverse look-up, trace or seek to trace any information on any other user of the Application, or any other customer of the Company, including any the Company account not owned by you, to its source, or exploit the Application or any service or information made available or offered by or through the Application, in any way where the purpose is to reveal any information, including but not limited to personal identification or information other than your own information, except as expressly authorized by the Company and provided for by the Application;
6. SUBMITTING CONTENT
As a condition of submitting any Content or other materials to the Application, you agree that:
a. you grant to the Company a royalty free, perpetual, irrevocable, worldwide, nonexclusive, transferable, and sublicensable license to use, reproduce, copy, adapt, modify, merge, distribute, publicly display, create derivative works from, incorporate such Content into other works; grant to the Company all rights necessary to publish or refrain from publishing your name and address in connection with your Content; sublicense through multiple tiers the Content, and acknowledge that this license cannot be terminated by you once your Content is submitted to the Application;
b. you grant to the Company all rights necessary to prohibit the subsequent aggregation, display, copying, duplication, reproduction, distribution, or exploitation of your Content by any other party;
c. your name and report information may be made available to the public and to the Service Providers on which you report;
d. you represent that you own or have secured all legal rights necessary for the Content submitted by you to be used by you, the Company, and others as described and otherwise contemplated in these Terms of Use;
e. You represent and warrant that each person identified, depicted, or shown in in your Content, if any, (and if a minor, the parent or guardian of the minor) has provided consent to the use of the Content consistent with these Terms of Use.
f. you are solely responsible for your reviews and ratings;
g. the Company may, in its sole discretion, choose to remove or not to remove reviews and ratings once published;
h. you will not submit any reviews that may be considered by the Company to be infringing, harassing, libelous, abusive, threatening, obscene, profane, hateful, offensive, harmful, vulgar, distasteful, defamatory, or otherwise violates any relevant law or right of any other party, or racially, ethnically or otherwise objectionable;
i. all of your reviews and ratings will either be based upon (i) your actual first-hand experiences with the Service Providers you are reviewing or (ii) an individual and that individual's actual first-hand experience whereby you have the legal authority to disclose such health information and experience of such individual;
j. all of your reviews and ratings of the Service Providers that you are rating will be accurate, honest, truthful, and complete in all respects;
k. you do not work for, own any interest in or serve on the board of directors of, any of the Service Providers for which you submit reviews and ratings;
l. you are not in any way related (by blood, adoption or marriage, if the Service Provider is an individual) to any of the Service Providers for which you submit reviews or ratings;
m. you have not received any form of compensation to post reviews and ratings;
n. you will submit thorough and thoughtful reviews of the Service Providers you review (for example, submitting a review describing a service contractor as "He/She is great." without additional commentary is not a thorough and thoughtful review);
o. you will not submit reviews that comment on other users or the reviews of other users;
p. you will not submit reviews with hyperlinks; or
q. The reviews and ratings that you provide do not reflect the views of the Company, its officers, managers, owners, employees, agents, designees or other users.
7. SERVICE PROVIDERS
The Company does not endorse and is not responsible or liable for any Content, data, advertising, products, goods or services available or unavailable from, or through, any third party or Service Provider. You agree that should you use or rely on such Content, data, advertisement, products, goods or services, available or unavailable from, or through any third party or Service Provider, the Company is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any Service Provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Service Provider exclusively and do not involve the Company. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging Service Providers.
Third parties and Service Providers may link or otherwise direct users to our Application for the purpose of utilizing one or more of the services we provide on behalf of others. Additionally, we may provide links or otherwise direct you to third party or Service Provider websites. The Company does not control or operate any such third party or Service Provider websites. Any information you provide to these third party or Service Provider websites while on these third party or Service Provider websites is subject to the respective policies of those third parties or Service Providers, and not the Company's policies. It is your responsibility to review such third party or Service Provider policies, including any relevant privacy policies. You agree that the Company will not be responsible or liable for, and does not endorse any content, advertising, goods or services provided on or through these outside websites or for your use or inability to use such websites. The Company does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give to any third party or Service Provider sites. You use these third party or Service Provider websites at your own risk.
You agree that the Company is not responsible for the accessibility or unavailability of any Service Provider or for your interactions and dealings with them, waive the right to bring or assert any claim against the Company relating to any interactions or dealings with any Service Provider, and release the Company from any and all liability for or relating to any interactions or dealings with Service Providers.
Without limiting the foregoing, your correspondence or business dealings with, consumption of products or services of, or participation in promotions of, third parties or Service Providers found on or through the use of the Application, including payment for and delivery or fulfillment of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. You agree that the Company shall not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties or Service Providers on the Application.
8. HEALTH RELATED PROVIDERS
The Application and its Content are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of information available on the Application.
If you think you may have a medical emergency, call your doctor or 911 immediately. The Company does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Application. The Company is not a health or wellness provider and cannot recommend or refer you to any health or wellness provider. Reliance on any information provided by the Company, its employees and others appearing on the Application at the invitation of the Company, or other users of the Application is solely at your own risk.
You should be aware that if you post any health-related information about yourself or anyone else on the Application, you do so at your own risk. If you post health information about services rendered to another individual, you represent that you have the legal authority to receive health information about that individual from that individual's health care providers and that you have the legal authority to further disclose such health information. If you post health-related information, you will be placing it into the public domain which may violate federal or state laws that protect the privacy of health information. You also acknowledge that the health care or wellness provider about whom you submit Content may submit Content that contain your private or confidential health information in response to Content you submit. The Company is not liable for any such Content. The Company cannot be expected to keep you health information confidential if you post it to the Application or otherwise make it available to others.
9. TERMINATION OF ACCESS
The Company may terminate your privilege to use or access the Application immediately and without notice for any reason whatsoever. Upon such termination, you must immediately cease accessing or using the Application and agree not access or make use of, or attempt to use, the Application. Furthermore, you acknowledge that the Company reserves the right to take action -- technical, legal or otherwise -- to block, nullify or deny your ability to access the Application. You understand that the Company may exercise this right in its sole discretion, and this right shall be in addition to and not in substitution for any other rights and remedies available to the Company.
All provisions of these Terms of Use which by their nature should survive termination shall survive the termination of your access to the Application, including, without limitation, provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
10. OWNERSHIP
The Application, Content, and all rights therein are and shall remain the Company’s property or the property of the Company’s licensors. Neither these Terms nor your use of the Application convey or grant to you any rights: (i) in or related to the Application except for the limited license granted above; or (ii) to use or reference in any manner the Company’s company names, logos, product and service names, trademarks or services marks or those of the Company’s licensors.
The Application contains the logos, trademarks, and service marks of the Company. All other trademarks, service marks and logos used in the Application are the trademarks, service marks or logos of their respective owners. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Application or Content.
11. WARRANTY DISCLAIMER
Although the Company attempts to ensure the integrity and accurateness of the Application, it makes no guarantees whatsoever as to the correctness or accuracy of the information on the Application. It is possible that the Application could include inaccuracies or errors, and that unauthorized additions, deletions and alterations could be made to the Application by third parties. In the event that an inaccuracy arises, please inform the Company so that it can be corrected. Information contained on the Application may be changed or updated without notice. Content on the Application is not intended to substitute for advice given by a medical practitioner, pharmacist or other licensed healthcare professional. Please contact your healthcare provider immediately if you suspect that you have a medical problem. Information and statements about services and products are not intended to be used to diagnose, treat, cure or prevent any disease or health condition. We accept no liability for inaccuracies or misstatements about services by any third party. This does not affect your statutory rights.
THIS APPLICATION, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY APPLICATION-RELATED SERVICE, IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS APPLICATION, APPLICATION-RELATED SERVICES, AND HYPERLINKED WEBSITES.
IN NO EVENT SHALL THE COMPANY, ITS SUBSIDIARIES, AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF THE APPLICATION, THE CONTENT, STATEMENTS AND OTHER INFORMATION CONTAINED THEREIN, THE PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE APPLICATION OR THESE TERMS OF USE. IN NO EVENT WILL THE COMPANY’S LIABILITY IN CONNECTION WITH A SERVICE EXCEED THE AMOUNTS PAID FOR SUCH SERVICE. TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY YOU DURING THE SIX MONTHS PRECEDING THE BRINGING OF ANY CLAIM, OR FIVE HUNDRED DOLLARS, WHICHEVER IS LESS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 11 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
12. Confidential and Proprietary Information
The Company does not want to receive confidential or proprietary information from you through the Application. Please note that any information or material sent to the Company through the Application will be deemed NOT to be confidential.
13. Choice of Law and Venue
These Terms and Conditions are entered into in the State of California and shall be governed by and construed in accordance with the laws of the State of California, exclusive of its choice of law rules. Each party to these Terms and Conditions submits to the exclusive jurisdiction of the state and federal courts sitting in the County of Alameda in the State of California, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. In the event that any of the Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, those provisions shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect.
14. Indemnification and Release
You agree to defend, indemnify and hold harmless the Company, its subsidiaries, affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to any products or services purchased by you, or any statements submitted or posted by you, in connection with the Application or any use of the Application in violation of these Terms.
You are solely responsible for your interactions with Service Providers and other users of the Application. To the extent permitted under applicable laws, you hereby release the Company from any and all claims or liability related to any product or service of a Service Provider, any action or inaction by Service Provider, including the Service Provider’s failure to comply with applicable law and/or failure to abide by the Company’s Terms and Conditions, and any conduct, speech, or statements, whether online or offline, of any other user.


15. Entire Agreement
These Terms and Conditions constitute the entire agreement between the Company and you pertaining to the subject matter of this Agreement. In its sole discretion, the Company may modify these Terms and Conditions by posting the revised version on the Application and you agree that each use of the Application is a new transaction governed by the terms of use at that time.
16. No Unlawful or Prohibited Purpose
As a condition of your use of the Application, you warrant to the Company that you will not use the Application for any purpose that is unlawful or prohibited by these Terms and Conditions.
17. Notifications
Correspondence should be directed to:
SerCle, Inc
39180 Libert Street, Suite 220D
Fremont California 94538

18. Arbitration Provision
Important Note Regarding this Arbitration provision:
• Arbitration does not limit or affect the legal claims you may bring against the Company. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved. 

• Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein. 

• Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with the Company. 

• IMPORTANT: This arbitration provision will require you to resolve any claim that you may have against the Company on an individual basis pursuant to the terms of the Agreement unless you choose to opt out of the arbitration provision. This provision will preclude you from bringing any class, collective, or representative action against the Company. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against the Company by someone else. 

WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ABRITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT LIFE DECISION.
i. How This Arbitration Provision Applies.
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and evidences a transaction involving commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.
Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to disputes arising out of or related to these Terms and disputes arising out of or related to your relationship with the Company, including termination of the relationship.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
ii. Limitations On How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
Regardless of any other terms of this Arbitration Provision, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this Arbitration Provision 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;
Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Arbitration Provision;
Disputes regarding your or the Company’s intellectual property rights;
iii. Selecting The Arbitrator and Location of the Arbitration.
The Arbitrator shall be selected by mutual agreement of the Company and you. Unless you and the Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply. Those rules are available here:
http://www.jamsadr.com/rules-streamlined-arbitration/
The location of the arbitration proceeding shall be no more than 45 miles from the place where you last received services from a Service Provider, unless each party to the arbitration agrees in writing otherwise.
iv. Starting The Arbitration.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to the Company shall be provided to Sercle, Inc., 39180 Liberty Street, Suite 220D, Fremont, California 94538. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
v. How Arbitration Proceedings Are Conducted.
In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.
You and the Company agree to resolve any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the Arbitration may still proceed on an individual basis only.
The Company shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.
vi. Paying For The Arbitration.
Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, the Company will pay the Arbitrator's and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. Any disputes in that regard will be resolved by the Arbitrator.
vii. The Arbitration Hearing And Award.
The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
viii. Your Right To Opt Out Of Arbitration.
Arbitration is not a mandatory condition of your contractual relationship with the Company. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying the Company in writing of your desire to opt out of this Arbitration Provision, either by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.), or by hand delivery to:
Jimmy Ma, Sercle, Inc., 39180 Liberty Street, Suite 220D, Fremont, California 94538.
In order to be effective, the letter must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-marked within 30 days of the date this Agreement is accepted by you. Your writing opting out of this Arbitration Provision will be filed with a copy of this Agreement and maintained by the Company. Should you not opt out of this Arbitration Provision within the 30-day period, you and the Company shall be bound by the terms of this Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision.
ix. Enforcement Of This Agreement.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
The provisions of these Terms and Conditions apply equally to and are for the benefit of the Company, its subsidiaries, affiliates, and each shall have the right to assert and enforce such provisions directly or on its own behalf.

Software Sublicense & Online Services Agreement
The terms and conditions stated herein (“Agreement”) constitute a legal agreement between you, an independent provider of services (“Service Contractor” or “You”), and SerCle, Inc. (the “Company”):
Upon your execution of this Agreement, you and the Company shall be bound by the terms and conditions set forth herein. 

RECITALS 

The Company is engaged in the business of providing lead generation to the Service Contractor comprised of requests for service made by individuals using the Company’s software application (“Users”). Through its license of said application (“Software”), the Company provides a platform for Users to connect with independent Service Contractors. The Company does not provide services, and is not a Service Contractor. The Company’s business is solely limited to providing Service Contractors with access to the lead generation service provided by the Software (“Service”). 
You are an independent Service Contractor who offers services (including, but not limited to, health-related services such as dentistry and beautification, and finance-related services such as accounting), which business you are authorized to conduct in the state(s) in which you operate. 
You are the owner or lessee, or are otherwise in lawful possession of equipment and qualifications suitable for performing the services contemplated by this Agreement, which equipment and qualifications complies with all applicable federal, state and local laws. 
You desire to enter into this Agreement as a Service Contractor for the purpose of receiving the Service from the Company. 
In consideration of the above representations and the mutual covenants set forth below, and for other good and valuable consideration, the Company and you (collectively “Parties”) agree as follows: 

IMPORTANT: PLEASE NOTE THAT TO USE THE SERVICE, YOU MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION UNLESS YOU CHOOSE TO OPT OUT OF THE ARBITRATION PROVISION. BY VIRTUE OF YOUR ELECTRONIC EXECUTION OF THIS AGREEMENT, YOU WILL BE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING THE ARBITRATION PROVISION) AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW. 


Service Arrangement
TERMS

Subject to the terms and conditions contain herein, this Agreement shall give you the right to accept requests to perform on-demand services (“Requests”) received by you via the Software, for which you shall be paid a Service Fee (as described more fully below). Each Request that you accept shall constitute a separate contractual engagement.
The Company will offer the Service to you during those times you choose to be available to receive the Requests. You shall have no obligation to use the Service at any specific time or for any specific duration. You shall have complete discretion to determine when you will be available to receive the Requests. If, however, you agree to be available to receive the Requests, you shall be obligated to abide by the terms of this Agreement.
You shall be entitled to accept, reject, and select among the Requests received via the Service. You shall have no obligation to the Company to accept any Request. Following acceptance of a Request, however, you must perform the Request in accordance with the User’s specifications. Failure to provide promised services on an accepted Request shall constitute a material breach of this Agreement, and may subject you to damages.
Nothing in this Agreement shall be construed as a guarantee that you shall be offered any particular number of Requests during any particular time period.
Performance of Contracted Services
You agree to fully perform all accepted Requests in accordance with the job parameters and other specifications established by the User. Full performance of a Request shall typically include, but is not limited to:
i. notification to the User of arrival using the Company’s software application; 

ii. waiting at least 10 minutes for a User to show up at the requested location; 

iii. performance of the requested service in professional manner, while complying with all state, federal, and local laws and regulations; and 

iv. timely submission of all necessary documentation required by the Company. 

Failure to comply with this paragraph shall constitute a material breach of this Agreement.
The Company shall have no right to require you to display the Company’s name, logo or colors on your office or equipment or to require that Service Contractors wear a uniform or any other clothing displaying the Company’s name, logo or colors.
The Company shall have no right to, and shall not, control the manner or prescribe the method you use to perform accepted Requests, subject to the terms of this Agreement. You shall be solely responsible for determining the most effective, efficient and safe manner to perform the services relating to each Request, subject to the terms of this Agreement and the applicable User specifications. The Parties acknowledge that any provisions of this Agreement reserving certain authority in the Company have been inserted solely to achieve compliance with federal, state, or local laws, rules, and interpretations thereof.
You represent that you are an independent contractor engaged in the independent business of providing the services described in this Agreement and further represent that, as of the date of execution of this Agreement, you currently possess all licenses, permits and other legal prerequisites necessary to perform the requested services, as required by the states and/or localities in which you operate. To ensure your compliance with all legal requirements, you must provide written copies of all such licenses, permits and other legal prerequisites prior to the date of execution of this Agreement. Thereafter, you must submit to the Company current copies of such licenses, permits, etc., as they are renewed. To ensure all such permits and licenses remain current, the Company shall, upon request, be entitled to review such licenses and permits from time to time. Failure to maintain current licenses, permits or other legal prerequisites, or failure to comply with any other provision of this paragraph, shall constitute a material breach of this Agreement.
In signing this Agreement, you certify that the equipment you use in performing services pursuant to this Agreement meet all industry and regulatory standards and qualifications. You acknowledge and agree that the Company may release your contact or insurance information to a User upon User request.
The Parties recognize that both you and the Company are, or may be, engaged in similar agreements with others. Nothing in this Agreement shall preclude the Company from doing business with other independent service providers, nor preclude you from entering into contracts similar to this Agreement with other lead generation providers. The Company neither has nor reserves the right to restrict you from performing other services for any company, business or individual, or from being engaged in any other occupation or business. However, during the time you are actively signed into the Software, you shall perform services only for Requests received by you via the Software. Additionally, during the time you are actively signed into the Application, you shall not display in your office any removable insignia provided by third-party service providers, other lead generation providers, or similar. You understand that you shall not during the term of this Agreement use your relationship with the Company (or the information gained therefrom) to divert or attempt to divert any business from the Company to a company that provides lead generation services in competition with the Company.
You agree to faithfully and diligently devote your best efforts, skills and abilities to comply with the job parameters and User specifications relating to any Request accepted by you.
You have complete discretion to operate your independent business in good faith including providing services separate from those obtained using the Service. Access to the Service may be suspended or revoked, however, if you unlawfully, unfairly or in bad faith disparage the Company.
You represent that you carry adequate liability insurance to cover performance of the requested services. Such insurance shall have a combined single limit and general aggregate limit of not less than One Million Dollars ($1,000,000.00) per occurrence, including professional liability, personal injury, products liability and other potential liability resulting from performance of services requested by Users.
Service Contractor’s Equipment
You agree that you shall maintain an office and/or equipment that shall be in good operating condition. Prior to execution of this Agreement, you shall provide to the Company a description of your office and/or equipment you intend to use to provide service under this Agreement. You agree to notify the Company of any change in your office by submitting to the Company an updated description under this Agreement. The purpose of this provision is to enable the Company to determine whether your equipment meets industry standards. Any intentional misrepresentation regarding the nature or condition of your equipment shall be deemed a material breach of this Agreement.
Subject only to requirements imposed by law, Request parameters, User specifications, and/or as otherwise set forth in this Agreement, you shall direct in all aspects the operation of the equipment used in the performance of this Agreement and shall exercise full discretion and judgment as an independent business in determining the means and methods of performance under this Agreement.
Except as specifically set forth in this Agreement, you are solely responsible for all costs and expenses incident to your personnel and equipment in performing services under this Agreement, including, but not limited to, wages, employment taxes, excise taxes, permits of all types, gross revenue taxes, equipment use fees and taxes, licensing, insurance coverage and any other tax, fine or fee imposed or assessed against the equipment or you by any state, local, or federal authority as a result of an action by you or your employees, agents, or subcontractors in the performance of this Agreement.
Service Contractor Personnel
You shall furnish at your own discretion, selection, and expense any personnel required or incidental to the performance of the Services contemplated by the performance of this Agreement. You shall be solely responsible for the direction and control of your employees, agents and subcontractors, if any, including their selection, hiring, firing, supervision, assignment, and direction, the setting of wages, hours and working conditions, and addressing their grievances. You shall determine the method, means and manner of the performance of the work of your employees, agents and subcontractors.
You assume full and sole responsibility for the payment of all wages, benefits and expenses of your employees, agents, or subcontractors, if any, and for all state and federal income tax withholdings, unemployment insurance, and social security taxes as to you and all persons employed by you in the performance of services under this Agreement, and you shall be responsible for meeting and fulfilling the requirements of all regulations now or hereafter prescribed by law. The Company shall not be responsible for the wages, benefits or expenses due your employees, agents, or subcontractors nor for income tax withholding, social security, unemployment, or other payroll taxes of your employees, agents, or subcontractors.
The Company shall neither have nor exercise disciplinary authority or control over you, your employees, agents, or subcontractors, shall have no authority to supervise or direct your employees, agents, or subcontractors, and shall have no authority or right to select, approve, hire, fire or discipline any of your employees, agents, or subcontractors.
You shall not allow any other person, including any employee, agent, or subcontractor, to access the Service to accept requests using the Application or your Merchant ID. You acknowledge and agree that this Agreement only enables you, not any other person, to access the Services and Software, and to use the Application and your Merchant ID to receive requests for services.
The Company is not authorized to withhold state or federal income taxes, social security taxes, unemployment insurance taxes, or any other local, state or federal tax on behalf of you or your employees, agents, or subcontractors. If mandated by a court of law with proper authority and jurisdiction, the Company shall comply with the terms of a garnishment order, as required by law. The Company will comply with any and all applicable requirements of local, state, or federal law to report payments the Company makes to independent contractors. You will be notified of any such reports made by the Company regarding your services to the extent required by applicable law.
Merchant ID
Company will issue identification and password keys (each, a “Merchant ID”) to the Service Contractor to enable you to access the Service. You will ensure the security and confidentiality of each Merchant ID. ONLY YOU may use the Merchant ID. Sharing your Merchant ID with someone else constitutes a material breach of this Agreement. The Company will have the right, at all times and in the Company’s sole discretion, to prohibit or otherwise restrict you or anyone else from accessing the Service for any reason.
The Company’s approval and authorization of a Service Contractor may be conditioned upon terms and conditions including, without limitation, a requirement that such Service Contractor, at his own cost and expense, undergo the Company’s screening process and attend the Company’s informational session regarding the use of the Company’s mobile application. The Company reserves the right to withhold or revoke its approval and authorization of any Service Contractor at any time, in its sole and unreviewable discretion.
Intellectual Property Ownership
The Parties understand that to perform the services contemplated by this Agreement, it may be necessary for the Parties to exchange certain confidential and proprietary information regarding their operations, Users and other sensitive details that the Parties consider confidential. This confidential and proprietary information (“Confidential Information”) includes, but is not limited to, the following:
i. Company’s Information. (1) the Service, and related methods, processes and technology; (2) pricing, pricing methods and billing practices; (3) marketing and financial plans; (4) letters, memoranda, agreements, and other internal documents; and (5) financial or other information regarding the Company or Users that has not been disclosed to the public. 

ii. Service Contractor Information. (1) your billing practices; (2) your business proposals and bids and any related letters, memoranda, agreements, and other internal documents maintained in confidence; and (3) financial information regarding you that has not been disclosed to the public. 

Except upon order of government authority having jurisdiction or upon written consent by the other party, the Company and you covenant and agree that they will not disclose to third parties or use for their own benefit or the benefit of any third party, any Confidential Information entrusted by the other party or Users in the performance of services pursuant to this Agreement.
This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or Application, or any intellectual property rights owned or licensed by the Company. The Company name, the Company logo, and the product names associated with the Service and Application are trademarks of the Company or third parties, and no right or license is granted to use them.
Indemnification
By entering into this Agreement, you agree to defend, indemnify, protect and hold harmless the Company, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents, from any and all claims, demands, damages, suits, losses, liabilities, expenses (including attorneys’ fees and costs), and causes of action arising directly or indirectly from out of or in connection with (a) your actions (or omissions) arising from the performance of services under this Agreement, including personal injury or death to any person (including you and/or your employees); (b) liability for civil and/or criminal conduct (e.g., assault, battery, fraud); (c) any liability arising from your failure to comply with the terms of this Agreement, including with respect to payment of wages, benefits or expenses due your employees, agents, or subcontractors; and (d) your use (or misuse) of the Software or Service.
Damage or Injury Claims
You shall be liable to the User for all claims of damage and/or injury to any User sustained. You agree to notify the Company of any damage or injury as soon as practicable after the damage or injury occurs. You understand that insurance may or may not provide coverage for damage or injury, or it may provide coverage for some, but not all, damage or injury.
You agree to fully cooperate with the User and/or the Company to resolve injury or damage claims as quickly as possible. You further acknowledge that, in the event of damage or an insurance claim, the Company may inform your insurance provider, or the insurance provider of any other party involved, of the claim and provide information about your acceptance or performance of a Request at the time of the damage or incident underlying a claim.
You agree that, in the event the Company is held liable for any injury or damage to any person caused by you, the Company shall have the right to recover such amount from you. Similarly, should the Company voluntarily elect to pay any amount owed to any person for damage or injury to that person caused by you or for which you are responsible and/or liable, the Company shall have the same right as the injured party to recover from you (i.e., the Company stands in the shoes of the injured party).
Relationship of Parties
This Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The Parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. The Parties are not employees, agents, joint venturers or partners of each other for any purpose.
As an independent contractor, you recognize that you are not entitled to unemployment benefits following termination of the Parties’ relationship.
Termination of Agreement
This Agreement shall remain in effect until terminated as follows:
i. At any time upon mutual written consent of the Parties hereto. 

ii. If one party has materially breached the Agreement, upon seven (7) days’ written notice to the breaching party, with such notice specifying the breach relied upon. 

iii. By either party without cause upon thirty (30) days’ prior written notice to the other party, with the date of mailing commencing the thirty (30) day period. 

iv. The Agreement shall be automatically terminated for inactivity of more than 180 days, with the date of termination being the 180th day following the date of the last Request accepted and performed by you. 

The following acts or occurrences shall constitute a material breach of this Agreement:
i. Your failure to maintain current insurance coverage in the amounts and types required herein. 

ii. Failure by the Company to remit to you all service fees due and owing within 30 days of the date the amount became due. 

iii. Your refusal to reimburse a User or the Company for any damage or injury caused by you. 

iv. Refusal by the Company to provide documentation requested by you reasonably relating to a damage or injury claim arising under this Agreement. 

v. Your refusal to fully complete Request after acceptance without waiver by the User or the Company. 

vi. Failure by either party to maintain all licenses and permits required by law and/or this Agreement. 

vii. Your allowing any other person to access the Application to receive requests for services, or allowing anyone to log into the Software using your Merchant ID. 
 

viii. Your loss of license, or your use of an employee who is not fully and properly licensed and approved by the Company to perform the job offered through the Service. 

ix. Intentional misrepresentations by you, your employees, agents or subcontractors to a User or the Company. 

x. Documented complaint by a User that you and/or your employee or subcontractor engaged in conduct that a reasonable person would find physically threatening, highly offensive or harassing;
xi. Advertising your services through the Software, submitting or posting any information through the Software in a manner that is determined to be objectionable, offensive, or otherwise inappropriate at sole discretion of the Company.
xii. Any other acts in violation of the terms and conditions set forth in this Agreement.
Arbitration Provision
Important Note Regarding this Arbitration provision:
• Arbitration does not limit or affect the legal claims you may bring against the Company. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved. 

• Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein. 

• Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with the Company. 

• IMPORTANT: This arbitration provision will require you to resolve any claim that you may have against the Company on an individual basis pursuant to the terms of the Agreement unless you choose to opt out of the arbitration provision. This provision will preclude you from bringing any class, collective, or representative action against the Company. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against the Company by someone else. 

WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ABRITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
i. How This Arbitration Provision Applies.
This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”) and evidences a transaction involving commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge.
Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with the Company, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
ii. Limitations On How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
Claims for workers compensation, state disability insurance and unemployment insurance benefits;
Regardless of any other terms of this Arbitration Provision, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this Arbitration Provision 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;
Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Arbitration Provision;
Disputes regarding your or the Company’s intellectual property rights;
This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2010 (Pub. L. 111-118), section 8102 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2011 (Pub. L. 112- 10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims.
iii. Selecting The Arbitrator and Location of the Arbitration.
The Arbitrator shall be selected by mutual agreement of the Company and you. Unless you and the Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply. Those rules are available here:
http://www.jamsadr.com/rules-streamlined-arbitration/
The location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided services under this Agreement, unless each party to the arbitration agrees in writing otherwise.
iv. Starting The Arbitration.
All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to the Company shall be provided to Sercle, Inc., 39180 Liberty Street, Suite 220D, Fremont, California 94538. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
v. How Arbitration Proceedings Are Conducted.
In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.
You and the Company agree to resolve any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the Arbitration may still proceed on an individual basis only.
While the Company will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, the Company shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.
vi. Paying For The Arbitration.
Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). In all cases where required by law, the Company will pay the Arbitrator's and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. Any disputes in that regard will be resolved by the Arbitrator.
vii. The Arbitration Hearing And Award.
The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
viii. Your Right To Opt Out Of Arbitration.
Arbitration is not a mandatory condition of your contractual relationship with the Company. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying the Company in writing of your desire to opt out of this Arbitration Provision, either by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.), or by hand delivery to:
Jimmy Ma, Sercle, Inc., 39180 Liberty Street, Suite 220D, Fremont, California 94538.

In order to be effective, the letter must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-marked within 30 days of the date this Agreement is accepted by you. Your writing opting out of this Arbitration Provision will be filed with a copy of this Agreement and maintained by the Company. Should you not opt out of this Arbitration Provision within the 30-day period, you and the Company shall be bound by the terms of this Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision.
ix. Enforcement Of This Agreement.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes arising out of this Agreement. Except as stated in subsection v, above, in the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
Notice
The Company may give notice by means of a general notice to you through the Software, electronic mail to your email address on record in the Company’s account information, or by written communication sent by first class mail or pre-paid post to your principal place of business on record in the Company’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or through the Software).
You may give notice to the Company (such notice shall be deemed given when received by the Company) at any time by a letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the Company at the following address: Sercle, Inc., 39180 Liberty Street, Suite 220D, Fremont, California 94538, addressed to the attention of: Jimmy Ma.
Assignment
You may not assign this Agreement without the prior written approval of the Company. Any purported assignment in violation of this section shall be void. The Company shall have the right, without your consent and in its sole discretion, to assign the Agreement or all or any of its obligations and rights hereunder provided that the assignee of the Company’s obligations under such assignment is, in the Company’s reasonable judgment, able to perform the Company’s obligations under this Agreement. Upon such assignment, the Company shall have no further liability to the Service Contractor for the obligations assigned.
Confidentiality Of Agreement
You represent you have not disclosed and agree to maintain in confidence the contents and terms of this Agreement, unless any such information is otherwise publicly available or its disclosure is mandated by law. You agree to take every reasonable precaution to prevent disclosure of the contents and terms of this Agreement, including by your personnel, to third parties, and agree that there will be no publicity, directly or indirectly, concerning any terms and conditions contained herein. You agree to disclose the terms and conditions of the Agreement only to those attorneys, accountants, governmental entities, and family members who have a need to know of such information and then only to the extent absolutely necessary. In the event you must disclose certain terms and conditions of the Agreement to the necessary third parties identified, you agree to inform SerCle, Inc. of the nature and extent of the disclosure and further agree to inform the necessary third parties of this confidentiality provision and take every precaution to ensure those parties do not disclose the terms and conditions of the Agreement themselves.
Modifications
The Company reserves the right to modify or supplement the terms and conditions of this Agreement at any time, effective upon publishing a modified version of this Agreement, or upon publishing the supplemental terms to this Agreement.
You hereby expressly acknowledge and agree that, by using or receiving the Service, and downloading, installing or using the Application, you and Company are bound by the then-current version of this Agreement, including any modifications and supplements to this Agreement or documents incorporated herein. Continued use of the Service or Software after any modifications or supplements to the Agreement shall constitute your consent to such modifications and supplements. You are responsible for regularly reviewing this Agreement.
General
Except as otherwise explicitly set forth in this agreement, if any provision of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and the remaining provisions shall be enforced to the fullest extent under law. The failure of the Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing. This Agreement, including any modifications and supplements to this Agreement or documents incorporated herein, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous negotiations, discussions, agreements, arrangements, offers, undertakings or statements, whether verbal, electronic, or in writing, regarding such subject matter. Except as explicitly set forth in this Agreement, nothing contained in this provision or this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
The interpretation of this Agreement shall be governed by California law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Company’s Application shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of Santa Clara, California. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions are only intended to specify the use of California law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise operate your business in California. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of the Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing.
By choosing “Terms and Conditions”, you expressly acknowledge that you have read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that you agree to be bound by the terms and conditions of the Agreement, and that you are legally competent to enter into this Agreement with the Company.