Last Updated: March 28, 2023
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY ACCEPTING THESE TERMS, EITHER BY CLICKING “I ACCEPT,” ENTERING INTO AN AGREEMENT THAT REFERENCES THESE TERMS, OR BY OTHERWISE ACCESSING OR USING THE SERVICE (THE DATE ON WHICH YOU ACCEPT THESE TERMS, THE “EFFECTIVE DATE”), YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THESE TERMS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND BORDERLESS’ PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY BORDERLESS AND YOU TO BE BOUND BY THESE TERMS.
YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF BORDERLESS AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS WILL INCLUDE OPERATIONAL MESSAGES ABOUT THE PLATFORM AND SERVICE. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 21 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND BORDERLESS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
- Borderless Service Overview. Borderless provides a platform (the “Platform”), which: (a) allows company users (each, a “Company”) via its employees or agents authorized to use the Platform (each, an “Authorized User”) to manage its relationships with local and international independent contractors including authorizing and settling payments (such transactions, “Payment Processing Transactions”) and generating documents in connection with the retention of contractors (“Deliverables”) and (b) allows employees and contractors (each, an “Individual User”) to access information about their engagement with a Company that is using the Platform (collectively, the “Service”). The Platform is accessible to: a) companies that accept these Terms of Service; b) companies that have entered into a master services agreement, statement of work, or other written agreement with Borderless (“Agreement”), and c) to Individual Users who create an account on the Platform or are added to the Platform by an Authorized User.
- Not a Substitute for Legal Advice. Borderless does not provide legal services or advice. You acknowledge and agree that the Platform, Deliverables, and Service are provided for your personal or internal business use and do not constitute legal advice. Borderless does not review any information provided by you for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. The Service is not a substitute for you obtaining legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.
- Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
- Accounts and Registration. To access and use the Service, you must register for an account. When you register for an account, you will be required to provide us with personal information including your name, email address, and other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at email@example.com.
4.1 Use Restrictions. Except as otherwise explicitly provided in the Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) rent, lease, sell, or otherwise permit third parties to use the Service; (b) use the Service to provide services to third parties (e.g., as a service bureau); (c) use the Service for any benchmarking activity or in connection with the development of any competitive product; (d) circumvent or disable any security or other technological features or measures of the Service; (e) interfere with operation of the Service or Platform; nor (f) attempt to do any of the acts described in this Section (Use Restrictions) or assist or permit any person to engage in any of the acts described in this Section (Use Restrictions).
4.2 Protection against Unauthorized Use. You will use reasonable efforts to prevent
any unauthorized use of the Service, including Deliverables, and immediately notify Borderless in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by Borderless to prevent or terminate unauthorized use of the Service.
- Identity Checks. Borderless reserves the right to perform certain identity and background checks, including Know Your Customer (“KYC”) verification, on Companies and Individual Users. You hereby authorize Borderless to, directly or through third parties, make any inquiries or conduct any investigations Borderless deems necessary or helpful, and to share the results of any identity and background checks with Payment Processors (as defined below). You further authorize any and all third parties to which any such inquiries or investigations may be directed to fully respond to such inquiries or investigations. You acknowledge and agree that Borderless may, at any time, in its sole discretion, deny you the right to use all or part of the Service based on such inquiries or investigations until any flags or issues are resolved to Borderless’ satisfaction, in its sole discretion. “KYC” means the process by which Borderless and Payment Processors may request certain information and documentation from Companies or Individual Users to establish and verify identity.
- Fees and Payment. Use of the Service requires you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are non-refundable, except as required by law.
6.1 Third-Party Payment Processors. Borderless will manage Payment Processing Transactions. By using the Service, you hereby authorize Borderless to transmit payment instructions on your behalf, along with information regarding you (including your confidential information) to third parties engaged by Borderless to perform Payment Processing Transactions (“Payment Processors”) in connection with providing the Service. Payment Processors will facilitate the transfer of funds to and from your account. Borderless does not receive any funds in a bank account that it owns or controls, except for fees and charges that Borderless deducts for the Service, as further described in this Section 6 Fees and Payment).
6.2 Borderless Fees; Payment. Except as otherwise agreed in an Agreement, Borderless will charge the fees set forth in its pricing page (available at: https://www.hireborderless.com/pricing) for the Service, subject to any different fee amounts set forth in an Agreement. Company will pay Borderless the fees and any other amounts owed by Company under the Agreement, plus any applicable sales, use, excise, or other taxes, including any fees specified in an Agreement. When Company initiates a Payment Processing Transaction, Borderless will provide to the Authorized User initiating the Payment Processing Transaction an invoice with the total balance to be paid, including Borderless’ fees for the Service. Company agrees to Transfer (as defined below) the full statement balance displayed on such invoice. Borderless will automatically subtract its fees for the Service from Company’s account with the Payment Processor following the credit of funds into such account. Company will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Borderless to collect any amount that is not paid when due. Amounts due from Company under this Agreement may not be withheld or offset by Company against amounts due to Company for any reason. All amounts paid to Borderless are non-refundable unless otherwise specifically provided for in these terms.
6.3 Transfers. After an Authorized User initiates a transfer of funds to a Payment Processor, whether via Automated Clearing House network, Electronic Funds Transfer Single Euro Payments Area or other available bank transfer method (each such transfer, a “Transfer”), Company’s account with the Payment Processor will be credited with an amount equivalent to the Transfer. In the event of delays in processing Transfers, Company’s account with a Payment Processor may show a credit prior to settlement of the Transfer. Company must not cancel any Transfer after initiating it. If an Authorized User erroneously initiates a Transfer or Transfers the wrong amount, Company must contact Borderless. If Company’s Transfer does not clear, whether for insufficient funds or otherwise, Borderless will send Company a notice via email to initiate a new deposit to cover the unsettled amount, and Company will be responsible for reimbursing Borderless for costs and expenses associated with collection as set forth in Section 6.2 (Borderless Fees; Payment).
6.4 Delays. Payment Processing Transactions may be subject to processing times and delays, including delays due to official holidays, differences in local time zones, and the need to conduct identity and background checks. Borderless will use reasonable efforts to avoid extended processing times or potential delays in Payment Processing Transactions, but will otherwise not be liable for such processing times or delays.
6.5 Taxes; Charges; Exchange Rates. Other than net income taxes imposed on Borderless, you will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from these Terms or an Agreement. You will pay any additional taxes as are necessary to ensure that the net amounts received by Borderless after all such taxes are paid are equal to the amounts that Borderless would have been entitled to in accordance with these Terms or an Agreement as if the taxes did not exist. You are responsible for your own tax compliance obligations resulting from use of the Service. You will be responsible for fees to banks, Payment Processors, or other institutions, required to process Payment Processing Transactions, including: (a) any foreign transaction fees, wire charges, or other fees or charges associated with Payment Processing Transactions, and (b) any fees or charges associated with a recipient bank or other institution rejecting an incoming Payment Processing Transaction. If any Payment Processing Transaction requires conversion between currencies, such conversion will take place at a rate that Borderless will provide to you at the time of, or prior to, you initiating the applicable Payment Processing Transaction, and any losses due to currency rate fluctuations will be passed to you. You are solely responsible for providing accurate information to Borderless and Payment Processors in order to complete Payment Processing Transactions, and you will bear any fees or charges associated with, or other costs and expenses incurred by Borderless in connection with correcting mistaken Payment Processing Transactions not resulting solely from error on the part of Borderless.
6.6 Delinquent Accounts. Borderless may suspend or terminate access to the Service, at any time, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time any fee, cost or other expense is due, then Borderless reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.
7.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Borderless grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Platform solely in connection with the Service.
7.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Platform; (b) make modifications to the Platform; or (c) interfere with or circumvent any feature of the Platform, including any security or access control mechanism. If you are prohibited under applicable law from using the Platform, then you may not use it.
7.3 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Platform or Service (“Feedback”), then you hereby grant Borderless an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Platform or Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
- Ownership; Proprietary Rights. The Platform is owned and operated by Borderless. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform provided by Borderless (“Materials”) are protected by intellectual property and other laws. All Materials included in the Platform are the property of Borderless or its third-party licensors. Except as expressly authorized by Borderless, you may not make use of the Materials. There are no implied licenses in these Terms and Borderless reserves all rights to the Materials not granted expressly in these Terms.
- Third-Party Terms
9.2 Third-Party Software. The Platform may include or incorporate third-party
software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
- User Content
10. 1 User Content Generally. Certain features of the Platform may permit users to submit, upload, or otherwise transmit (“Post”) content as part of the Platform, including messages, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post via the Platform, subject to the licenses granted in these Terms.
10.2 Limited License Grant to Borderless. By Posting User Content to or via the Platform, you grant Borderless a worldwide, non-exclusive,irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from Borderless’ exercise of the license set forth in this Section 10.2.
10.3 You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content. Borderless disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Platform. By providing User Content via the Platform, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Borderless and users of the Platform to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 10, in the manner contemplated by Borderless, the Service, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Borderless to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
10.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. Borderless may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Platform, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Borderless with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Borderless does not permit infringing activities on the Platform.
11.1 “Confidential Information” means any non-public information of one party (“Discloser”) that is disclosed to the other party (“Recipient”), directly or indirectly, in writing, orally, or by inspection or observation of tangible items. “Confidential Information” does not include any information that Recipient can demonstrate: (i) was publicly known and made generally available in the public domain before Discloser disclosed the information to Recipient, (ii) became publicly known and made generally available, after disclosure to Recipient by Discloser, through no wrongful action or inaction of Recipient or others who were under confidentiality obligations, (iii) was in Recipient’s possession, without confidentiality restrictions, at the time of disclosure by Discloser, as shown by Recipient’s files and records, or (iv) was independently developed without use of or reference to the Confidential Information
11.2 Nondisclosure and Nonuse. Recipient will not disclose Confidential Information to any third party or, if Borderless is the Recipient, use Confidential Information for any purpose other than providing the Platform and Service to you. Recipient will take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information. Recipient will not, during and after the term of this Agreement, reverse engineer the Confidential Information. Recipient may disclose Discloser’s Confidential Information if required by law so long as Recipient gives Discloser prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
12.1 Text Messaging & Phone Calls. You agree that Borderless and those acting on our behalf may call and send you text (SMS) messages at the phone number you provide us. These calls and messages may include operational calls or messages about your use of the Platform and Service, as well as marketing calls or messages. Calls and text messages may be made or sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such calls or messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM BORDERNESS, YOU CAN EMAIL SUPPORT@HIREBORDERLESS.COM OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM Borderless, YOU CAN EMAIL SUPPORT@HIREBORDERLESS.COM OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing calls and texts is not a condition of any purchase on or use of the Service.
12.2 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
- Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
13.1 use the Service for any illegal purpose or in violation of any local, state, national, or international laws (“Laws”);
13.2 harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
13.3 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
13.4 access, search, or otherwise use any portion of the Platform through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Borderless;
13.5 interfere with security-related features of the Platform, including by: (i) disabling or circumventing features that prevent or limit use, printing,, or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
13.6 interfere with the operation of the Platform or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
13.7 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Platform account without permission;
13.8 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8 (Ownership; Proprietary Rights)) or any right or ability to view, access, or use any Materials; or
13.9 attempt to do any of the acts described in this Section 13 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 13 (Prohibited Conduct).
- Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. You will be required to accept modified Terms in order to continue to use the Service. Except as expressly permitted in this Section 14 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
- Term, Termination, and Modification of the Service
15.1 Term. These Terms are effective beginning when you accept the Terms or first access or use the Service, and ending when terminated as described in Section 15.2 (Termination).
15.2 Termination. If you violate any provision of these Terms or an Agreement, then your authorization to access the Service and these Terms automatically terminate. In addition, Borderless may, at its sole discretion, terminate these Terms or your account on the Platform, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
15.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Platform; (c) you must pay Borderless any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 7.3 (Feedback), 8 (Ownership; Proprietary Rights), 10.2 (Limited License Grant to Borderless), 15.3 (Effect of Termination), 16 (Indemnity), 18 (Disclaimers; No Warranties by Borderless), 19 (Limitation of Liability), 20 (Dispute Resolution and Arbitration), and 22 (Miscellaneous) will survive. You are solely responsible for retaining copies of any User Content you Post via the Platform since upon termination of your account, you may lose access rights to any User Content you Posted via the Platform. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Platform using a different name, email address or other forms of account verification.
15.4 Modification of the Service. Borderless reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Borderless will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post via the Platform so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted via the Platform.
- Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Borderless, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Borderless Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
- Warranties and Disclaimers
17.1 Customer Warranties. You represent and warrant to Borderless that: (a) you will comply with all Laws; and (b) you have provided all notices to and obtained all necessary and sufficient rights, permissions, capacity, consents, and authority to fully comply with your obligations under this Agreement (including, without limitation, to grant us the rights in Section 10.2 (Limited License Grant to Borderless) and in Section 7.3 (Feedback)) without violating Laws, infringing, misappropriating, or otherwise diluting any third-party rights (including intellectual property, publicity, privacy, or other proprietary rights), or breaching any terms or conditions in any agreement or privacy policies with a third party.
- Disclaimers; No Warranties by Borderless
18.1 THE SERVICE, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. BORDERLESS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. BORDERLESS DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND BORDERLESS DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
18.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR BORDERLESS ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE BORDERLESS ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
18.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 18 (DISCLAIMERS; NO WARRANTIES BY BORDERLESS) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Borderless does not disclaim any warranty or other right that Borderless is prohibited from disclaiming under applicable law.
- Limitation of Liability
19.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE BORDERLESS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY BORDERLESS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
19.2 EXCEPT AS PROVIDED IN SECTIONS 21.2(e) (COMMENCING ARBITRATION) AND 21.2(g) (ARBITRATION RELIEF) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE BORDERLESS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO BORDERLESS FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
19.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 19 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
20.1 Other Agreements. If you have executed an Agreement with Borderless, the dispute resolution provisions in that Agreement will apply to any disputes arising in connection with these Terms, the Platform, or the Service.
20.2 U.S. Residents. Subject to Section 20.1, if you are a resident of the United States, then this Section 20.2 governs any disputes arising in connection with these Terms, the Platform, or the Service.
(a) Generally. Except as described in Section 20.2(b) (Exceptions) and 20.2(c) (Opt-Out), you and Borderless agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BORDERLESS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
(c) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 20 (Dispute Resolution and Arbitration) within 30 days after the date that you agree to these Terms by sending a letter to 4400 WE Technologies Inc., Attention: Legal Department – Arbitration Opt-Out, 1 University Ave Toronto, ON M5J 2P1 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Borderless receives your Opt-Out Notice, this Section 20 (Dispute Resolution and Arbitration) will be void and any action arising out of these Terms will be resolved as set forth in Section 22.2 (Governing Law). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
(d) Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the JAMS under the rules applicable to consumer disputes (collectively, “JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at www.jamsadr.com, by calling the JAMS at +1-800-352-5267 or by contacting Borderless.
(e) Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Borderless’ address for Notice is: 4400 WE Technologies Inc., 1 University AveToronto, ON M5J 2P1. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Borderless may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, Borderless will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if the Company has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the JAMS Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules and the other party may seek reimbursement for any fees paid to JAMS.
(f) Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or Borderless must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
(g) Arbitration Relief. Except as provided in Section 20.2(h) (No Class Actions), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Borderless before an arbitrator was selected, Borderless will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
(h) No Class Actions. YOU AND BORDERLESS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Borderless agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(i) Modifications to this Arbitration Provision. If Borderless makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to Borderless’ address for Notice of Arbitration, in which case your account with Borderless will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(j) Enforceability. If Section 20.2(h) (No Class Actions) or the entirety of this Section 20.2 (U.S. Residents) is found to be unenforceable, or if Borderless receives an Opt-Out Notice from you, then the entirety of this Section 20.2 (U.S. Residents) will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 21.5(a) (Governing Law) will govern any action arising out of or related to these Terms.
20.3 Non-U.S. Residents. Subject to Section 20.1, if you are a resident of any country other than the United States, this Section 20.3 governs any disputes arising in connection with these Terms or the Service. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in Toronto, Ontario, Canada, administered by Canadian Arbitration Association pursuant to the Canadian Arbitration Association Arbitration Rules by a sole arbitrator appointed in accordance with those rules. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.
21.2 Conflict. To the extent the individual accepting these Terms is accepting on behalf of a company, organization, or other entity and an authorized representative of such entity has, on behalf of such entity, has entered into an Agreement regarding the use of the Service, in the event of a conflict between these Terms and the Agreement, the Agreement will govern.
21.3 Subcontractors. Borderless may use subcontractors and permit them to exercise our rights and to perform our obligations on behalf of us, but we remain responsible for their compliance with these Terms and any Agreement.
21.4 Force Majeure. Borderless is not liable for any delay or failure to perform any of its obligations under these Terms or any Agreement due to events beyond our reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster, provided that we use reasonable efforts to mitigate the impact of any such failure or delay to the Service.
21.5 Governing Law.
(a) U.S. Residents. If you are a resident of the United States, these Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Borderless submit to the personal and exclusive jurisdiction of the state courts and federal courts located within New Castle County, Delaware for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Delaware, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
(b) Non-U.S. Residents. If you are a resident of any country other than the United States, this Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the Province of Ontario, Canada. Except as specified in Section 20.3 (Non-U.S. Residents), the parties agree that any action arising out of or in connection with this Agreement will be heard in the federal, provincial, or local courts in Toronto, Ontario, Canada, and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
21.7 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
21.9 Contact Information. The Service is offered by 4400 WE Technologies Inc., located at 1 University Ave, Toronto, ON M5J 2P1. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
21.10 Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
21.11 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
21.12 Drafting. The parties have had an equal opportunity to consult with legal counsel and participate in the drafting of this Agreement and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The parties have agreed that this Agreement as well as any document relating to it be drawn up in English. Les parties aux présentes ont convenu que la présente Convention ainsi que tous autres documents s'y rattachant soient rédigés en anglais seulement.