IMPORTANT NOTICE: THIS CREATOR AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE PLATFORM (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE PLATFORM IN ANY MANNER.
1. Acceptance of Terms
This Creator Agreement (the “Creator Agreement”) is a binding legal agreement between you and Candid (“Candid,” “we,” “us,” or “our”). Candid provides an online platform (the “Platform”) that connects users seeking communications (“Customer”) with persons who create content for individual Customers or groups (“Creators”) (collectively, “Users”). This Creator Agreement governs your use of the websites, applications, and other offerings from Candid in your capacity as a Creator.
All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of this Creator Agreement will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity, its directors, officers, employees, and agents.
2. The Platform
The Platform is an online venue for informational and educational purposes and connects Customers with Creators. Candid is not in the business of providing or selling information or education that is within any Creator’s area of knowledge or expertise, and Candid itself otherwise does not provide advice or any professional services to Customers.
You are an independent provider of services, and you represent and warrant you are authorized to conduct the services contemplated in this Creator Agreement in the location in which you operate. You further agree that you are not an employee of Candid and you understand that (a) you have sole discretion in selecting which Customer accept from those that are made available to you on the Platform, (b) you may elect not accept Customers, and (c) you have sole discretion in controlling how you perform any services on the Platform. You further understand that site tools, Candid’s mobile application or any other tools (collectively, “Tools”) offered by Candid are optional, such Tools are purely offered for Creator’s convenience, and usage of such Tools is not mandatory.
No relationship (such as partnership, agent, joint venturer, or employee) between you and Candid is created by this Creator Agreement or your participation on the Platform. You acknowledge that you are not an employee or agent of Candid but are, like Customers, only Users of the Platform. You shall act in accordance with this status and shall not hold yourself out as an officer, employee or agent of Candid, nor make any claim based on any right or privilege applicable to Candid’s employees. Under no circumstances shall you look to Candid as your employer, or as a partner, agent, or principal. Nothing regarding your participation on the Platform will be considered as an endorsement, referral or recommendation by Candid of you or the answers you provide and you will not, either on the Platform or in any other forum or by any other means, suggest such an endorsement.
We are not involved in the conversations you may engage in with Customers on the Platform. Candid shall not be liable for (a) any acts or omissions by you, (b) content made by Users on the Platform, including questions, answers, requests for information, responses, profiles, Creator signatures, qualifications, comments, profile information, and Content in the Creator Forum and other places where Users communicate with one another, or (c) the ability of Customers to pay for your content. You understand and agree that Candid cannot ensure that a Customer will complete a transaction. You further understand and agree that Creators may not have access to all requests from Users, and that Candid retains the right to route questions to Creators in its sole discretion.
EMERGENCY QUESTIONS AND CRISIS SITUATIONS (particularly regarding medical or mental health issues) should not be directed to the Platform and should, instead be directed immediately by telephone or in-person to qualified professionals (e.g., in Canada, call 911). The Platform is not the appropriate venue to deal with such situations.
3. Modification of Creator Agreement or Platform
Candid reserves the right, at its reasonable and sole discretion, to modify or replace the terms of this Creator Agreement at any time. The most current version of this Creator Agreement will be accessible through the Platform. You shall be responsible for reviewing and becoming familiar with any such modifications. If a revision to this Creator Agreement, in our sole discretion, is material, we will notify you by contacting you either through the email address associated with your Account (as defined herein) or through a notice on the Platform. Except as otherwise stated by Candid in writing, use of the Platform by you after any modification to this Creator Agreement constitutes your acceptance of this Creator Agreement as modified. If you do not accept the changes to this Creator Agreement, your sole and exclusive remedy is to terminate your Account and discontinue use of the Platform.
Candid reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, the Platform or associated services (or any part thereof), with or without notice.
4. Eligibility & Account Creation
You hereby represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Creator Agreement and to abide by and comply with this Creator Agreement. Only individuals who are at least 18 years old and can form legally binding contracts under applicable law are permitted to apply to be or participate on the Platform as a Creator.
In order to prevent fraudulent use of the Candid membership program by Customers, Customers who have purchased memberships are ineligible to participate as Creators on Candid during the term of their membership, as are their immediate family members (spouse, parent, child, sibling and spouse or “step” of each) and those living in the same households (persons, whether related or not, who lived in the same residence as the member for at least three (3) months during the twelve (12)-month period preceding the start of the Candid membership).
You must create an Creator account (“Account”) to access certain features of the Platform. To create an Account, you must provide us with certain information about you, such as your name, email address, phone number, and area of knowledge and experience. You will also be required to select a username and password. You agree to provide accurate, current, and complete information during the Account registration process and at all other times when you use the Platform, and to update such information to keep it accurate, current, and complete. You are solely responsible for safeguarding your Account password. You are solely responsible for all activity that occurs on your Account, and you will notify Candid immediately of any unauthorized use. For clarity, Candid is not liable for any losses by any party caused by an unauthorized use of your Account. Your Account is nontransferable except with Candid’s written permission and in line with Candid policies and procedures. If any Candid account of yours has been suspended or terminated, you may not open another account on the Platform.
5. Creator Conduct
5.1 Registration Information
In applying to be an Creator or using the Platform as an Creator, you represent and warrant that you have and will continue: (a) to provide and maintain accurate, complete, and non-misleading information in connection with your registration and Account; (b) to provide and maintain accurate descriptions of any background, skills, knowledge, and level of experience (including professional licenses, certifications, education, employment, etc.) (collectively, “Credentials”); and (c) to be truthful including, without limitation, not misrepresent yourself, such as, but not limited to, using or creating a misleading username.
5.2 Creator Community Guidelines
Without limitation, you must be compassionate, polite, and respectful toward other Creators and Customers and to Candid personnel. Creators who are rude (or unprofessional, argumentative or threatening) to others, including Customers, other Creators, and Candid personnel, as determined by Candid in its sole discretion, may (1) be given notice of such violation and/or (2) have Accounts suspended, limited, or terminated.
5.3 Creators knowledge and experience and Compliance with Laws
You will provide competent answers that are within your realm of knowledge and experience and will use at least a reasonable standard of care in providing answers. A reasonable standard of care is the higher of: (i) the standard you apply in your profession not conducted on the Platform; or (ii) the standard of care required by the applicable profession.
You will abide by all laws, rules, regulations, and ethical standards pertaining to your profession and/or the profession applicable to categories in which you are an Creator (including, if applicable, any ethical obligations relating to conflicts of interest).
Creator acknowledges and agrees that Creator is obligated to report as income all compensation received by Candid pursuant to this Agreement subject to applicable law in your jurisdiction. Subject to applicable law, Creator agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income. Creator will receive no Candid-sponsored benefits such as, but not limited to, paid vacation, sick leave and medical insurance.
5.5 Confidential Information
Creators are granted access to the Platform beyond the access granted to Customers and, as such, have access to information not known by Customers of the Platform (“Confidential Information”). Creators shall (1) maintain all Confidential Information in confidence; (2) use such Confidential Information in confidence; (3) use such Confidential Information only in connection with their legitimate activities on the Platform; (4) not use Confidential Information for the purpose of developing, operating, or participating in any competing service; and (5) not disclose Confidential Information to non-Creators unless required by law. For example, and without limitation, you will use any information obtained about Customers on the Platform strictly to provide your services as authorized by this Creator Agreement.
5.7 Other Rules and Prohibitions
As a condition of use, you agree you will not use the Platform for any purpose that is unlawful or prohibited by this Creator Agreement, or any other purpose not reasonably intended by Candid. By way of example, and not as a limitation, you agree not to:
- Directly or indirectly manipulate, undermine, or disrupt the integrity of any feedback ratings, reports, or systems on the Platform, including, but not limited to, by filing false reports about other Creators;
- Establish a professional-client relationship on the Platform;
- Use any automated programs to automatically lock questions that are posted on the Platform;
- Create multiple Accounts on the Platform;
- Use another User’s account to access the Platform;
- Use methods to disguise your location or otherwise circumvent Candid’s tools to secure the Platform;
- Directly or indirectly submit content that is fraudulent, inaccurate, infringing, libelous, defamatory, abusive, offensive, obscene, pornographic or otherwise violates any law or right of Candid or Users or any other third party, including privacy rights, copyrights, or other intellectual property rights;
- Directly or indirectly submit content linking to affiliate programs, multi-level marketing schemes, or off-topic content;
- Violate any federal, state, or local law, statute, ordinance, regulation, or ethical code;
- Engage in any behavior that is defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
- Submit any content containing any viruses, Trojan horses, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
- Except as expressly authorized by Candid, solicit or otherwise request personal information from Customers other than information strictly necessary to respond to the Customer;
- Scrape, access, monitor, index, frame, link, or copy any content on the Platform by accessing the Platform in an automated way, using any robot, spider, scraper, web crawler, or using any method of access other than manually accessing the publicly-available portions of the Platform through a browser or accessing the Platform through any approved mobile application, application programming interface, or client application;
- Decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Platform;
- Violate the restrictions in any robot exclusion headers of the Platform, if any, or bypass or circumvent other measures employed to prevent or limit access to the Platform;
- Submit any Content that advocate illegal activity or discuss illegal activities with the intent to commit them;
- Engage in any activity that could cause us to violate any applicable law, statute, ordinance, or regulation;
- Resell or make any commercial use of our system or the content on the Platform without our prior written consent;
- Provide information on any other websites about Candid, unless you expressly state that your statements are not made on behalf of and have not been approved by Candid;
- Falsely imply Candid’s endorsement, partnership, or otherwise mislead others as to your affiliation with Candid; or
- Use the Platform in a way that violates or facilitates violations of this Creator Agreement, any other agreement or guidelines that govern use of the Platform, or attempt to do any of the foregoing directly or indirectly.
You understand that violation of these rules or this Creator Agreement more generally may result in the termination of your Account. You acknowledge and agree that Candid may remove any Content and terminate any Account at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to Content). Candid further reserves the right to report unlawful activity to law enforcement or other regulatory authorities.
You further understand that Candid has the right, but does not have any obligation, to monitor the use of the Platform and verify information provided by our Users.
Created content is not confidential and may be used by Candid for any purpose. Content is not private or confidential, nor are they protected by attorney-client, doctor-patient, or any other privilege, and Content may be read, collected, and used by others. Without limitation, we may use your signature and/or profile information in Third Party Communications messages sent to Customers alerting them to your communication. As between you and Candid, you will maintain whatever ownership interest you have in and to the Content you provide on the Platform. You are responsible for all Content you contribute, in any manner, to the Platform, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. Candid reserves the right to remove any or all of your Content, in whole or in part, at any time with or without notice.
You grant to Candid a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights, including the right to use, reproduce, display, edit, copy, modify, transmit, publicly perform or create derivative works thereof, that you have in your Content, in any media now known or not currently known, with respect to any such Content. This license shall survive termination of the Platform, this Creator Agreement, or your Account. Candid does not claim ownership rights in your Content and nothing in this Creator Agreement will be deemed to restrict rights that you may have to use and exploit your Content.
Any information or content publicly posted or privately transmitted through the Platform is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. You understand that by using the Platform, you may be exposed to Content that you may consider offensive or objectionable. We cannot control and have no duty to take any action regarding how you may interpret and use Content or what actions you may take as a result of having been exposed to Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Platform. While we may try to do so, we can’t guarantee the identity of any Users with whom you interact in using the Platform and are not responsible for which Users gain access to the Platform.
7. Proprietary Rights and Limited License
All right, title, and interest in and to the Platform, are and will remain the exclusive property of Candid and its licensors. All materials therein, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and all intellectual property rights related thereto, are the exclusive property of Candid and its licensors. The Platform is protected by copyright, trademark, and other laws of both the United States and foreign countries. You acknowledge that the Platform has been developed, compiled, prepared, revised, selected, and arranged by Candid and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Candid and such others. Except as explicitly provided herein, nothing in this Creator Agreement gives you a right to use the Candid name or any of the Candid trademarks, logos, domain names and other distinctive brand features. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.
Subject to your complete and ongoing compliance with the terms of this Creator Agreement, Candid grants you a non-transferable, non-exclusive, revocable, limited license to access and use the Platform. We reserve all rights not expressly granted to you by this Creator Agreement.
By sending us any feedback, comments, questions, or suggestions concerning Candid, the Platform or us (collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against Candid and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your participation in the Platform or this Creator Agreement.
9. Payments to Creators
9.1 Standard and Service
Customers who elect to pay for memberships are hereinafter referred to as “Members” and participation to access Creators is referred to as a “Membership.” Unless otherwise stated on your sign-up page, when Customers sign up for a Membership, they are subscribing to an automatically renewing Membership requiring recurring payments set by Creators at the stated frequency (e.g., monthly) at the then-current price until their Membership is cancelled
Membership Model. For subscription to the Creator’s Content the Creator shall be paid for each Creator based on a price set by the Creator
9.2 Withdrawal of Payment
In order to process payments to Creators, Candid uses Wise an international money transfer service. You are responsible for providing accurate bank details to Us and ensuring that your bank can receive transfer payments from Wise (see Wise Terms and Conditions https://wise.com/terms-and-conditions). If you are unable to accept Wise terms of service you should not sign-up with Candid. Candid transfers properly requested Customer payments to Creators via Wise by the fourth (4th) business day of the upcoming month (or, in its discretion, Candid may choose to forward Customer payments even without a Creator’s request for payment). You agree that Candid has the right to resolve Customer complaints and Payment Requests as it deems necessary or advisable, including, in Candid’s sole discretion, issuing refunds to Customers to settle disputes. If Candid decides to issue a refund to a Customer, Candid may seek reimbursement from the Creator for such refund, or Candid may offset any refunds against any future Customer payments to be forwarded to the Creator. Candid also reserves the right to resolve accounting discrepancies with Customers in its sole discretion.
If Candid believes, in its sole discretion, that any Customer funds were paid to a Creator under suspicious circumstances or that funds were derived from a suspicious Customer account, Candid will investigate the situation until it has reached an adequate resolution, as determined by Candid in its sole discretion. The investigation or resolution may require the involvement of certain third parties, such as an applicable credit card company. Such an investigation may require Candid to put a hold on a Creator’s account. Candid will make commercially reasonable efforts not to exceed a 90-day hold on a Creator’s account during such an investigation.
9.3 Customers’ Ability to Pay and Payment Processing Disclaimers
You acknowledge that Candid has no control over, and makes no representation or warranty of any kind, as to the ability or willingness of Customers to pay for the answers provided by Creators. In addition, you acknowledge that you are never required by Candid to answer any questions on the Platform.
Candid disclaims any warranty that its billing and payment system is without error. If an Creator believes there is a problem with Candid’s billing or payment system, the Creator should notify Candid by email to [email protected] within thirty (30) days of such problem. Upon receipt of the notification of such a problem, Candid will, in good faith, work to remedy any alleged payment errors.
10. Duration and Termination of Agreement
Duration. The term of this Creator Agreement shall be for an initial duration from your acceptance of the Creator Agreement to thirty days after Candid approves you as an Creator on the Platform, and will automatically renew for thirty-day intervals on the thirtieth day of the initial duration and of each successive term thereafter (each a “Duration”), unless and until one party gives the other at least ten days’ written notice before the end of the then-current Duration of its intention not to renew this Creator Agreement.
Termination. You may terminate your Account by written notice via e-mail to [email protected]. Terminations typically will be effective within seven (7) business days after our receipt of your termination notice, at which time your Account will be closed, and you will no longer be able to access your former Account. Any payments accrued as of the effective date of termination will be payable on or before the next Creator payout date or otherwise according to this Agreement.
Creator Violations. Without limiting any other rights available to Candid, if (i) you breach this Creator Agreement, (ii) you violate applicable laws, regulations, or third-party rights, or (iii) Candid believes it is reasonably necessary to protect Candid, its Users, or third parties; Candid may, with or without prior notice:
- suspend or limit your access to or use of the Platform and/or your Account;
- suspend or remove Content; and/or
- terminate your Account.
Effect of Termination. If you have accrued any fees in your Account, those fees will remain available to you except where such fees were unlawfully or fraudulently obtained. You are not entitled to a restoration of your Account or any of your Content if you terminate your Account, though you may create a new Account unless prohibited by this Creator Agreement. If your access to or use of the Platform has been limited, or your Account has been suspended, or this Creator Agreement has been terminated by us, you may not register a new Account or access or use the Platform through an account of another User.
Survival. Sections 5(f)-(l), 6-8, 10-11, and 13-18 of this Creator Agreement, and any other provisions that are necessary to effectuate those sections, shall survive termination.
11. Indemnity and Release
You agree to release and to indemnify, defend and hold harmless Candid and its parents, subsidiaries, affiliates and agents, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys’ fees and court costs) claims, actions, inquiries, or investigations of any kind whatsoever arising out of or resulting from your use of the Platform, your violation of this Creator Agreement, and any of your acts or omissions that implicate publicity rights, defamation or invasion of privacy. Candid reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Candid in the defense of such matter.
In the event that you have a dispute with one or more other Users, you release Candid, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Platform.
Neither Candid nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Platform, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Platform. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Platform. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Platform are provided “AS IS” and without any warranty of any kind from Candid or others.
YOU ACKNOWLEDGE AND AGREE THAT CANDID DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, (A) TO MONITOR, REVIEW, AND/OR REMOVE CONTENT; OR (B) FOR ANY PERMISSIBLE PURPOSE, TO CONDUCT IDENTITY VERIFICATION, BACKGROUND (INCLUDING CRIMINAL BACKGROUND) OR REGISTERED SEX OFFENDER CHECKS ON ANY CREATOR. THE PLATFORM AND CONTENT ARE PROVIDED BY CANDID (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT THE RESULTS OR CONTENT THAT MAY BE OBTAINED FROM THE PLATFORM WILL BE ACCURATE OR RELIABLE OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CANDID OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO ANY CUSTOMER. YOU UNDERSTAND THAT CANDID MAY NOT REVIEW OR VET CONTENT. CANDID MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON AND GIVE OR RECEIVE PROFESSIONAL SERVICES. CANDID EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13. Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL CANDID (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, HIGHER THAN THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY CANDID TO YOU IN CONNECTION WITH THE PLATFORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. THE LIMITATIONS ON DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN AND ARE MATERIAL TO CANDID’S DECISION TO ENTER INTO THE AGREEMENT BETWEEN CANDID AND YOU. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
14. Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
14.1 Initial Dispute Resolution
Our Support Department is available to address any concerns you may have regarding the Platform. Our Support Department can resolve most concerns quickly to our Users’ satisfaction. The parties shall use their best efforts through this Support process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration. To adequately engage in initial dispute resolution, each party must notify the other party, in writing, of the facts of the dispute and all damages claimed. Such a writing must be sent to (a) the Creator’s email address on file with Candid, or (b) or [email protected], whichever is applicable (“Dispute Notification”). The party receiving the Dispute Notification has thirty (30) days from receipt of the Dispute Notification to respond. The other party then has 15 days to reply to the response.
Except to the extent restricted by applicable law, if the Dispute is not resolved after twenty (20) business days of a person serving notice on the other party that there is a Dispute, you and us agree that the Dispute will be finally resolved by confidential arbitration before a single arbitrator in accordance with the Arbitration Rules of the ADR Institute of Canada, Inc. The seat of the arbitration will be Ontario or wherever convenient or necessary acting reasonably. There will be no appeals of any kind. The language of the arbitration will be English unless otherwise required by applicable law or agreed to by you and us. Candid will pay the reasonable arbitration costs.
Except to the extent restricted by applicable law, you and us agree that you and us will resolve any Dispute on an individual basis. Any claim you may have must be brought individually, in your individual capacity and not as a representative plaintiff or class member, and you will not join such claim with claims of any other person or entity, or bring, join or participate in a class action lawsuit, collective or representative proceeding of any kind (existing or future) against any members of Candid.
Nothing in this Section will prohibit us from seeking interim measures from a court, including preliminary or injunctive relief of breach of you of any intellectual property rights.
If you are a resident of Canada, arbitration will take place at any reasonable location within the Canada convenient for you. You and Candid agree to submit to the personal jurisdiction of any federal or provincial court in Ontario, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
14.4 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND CANDID 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. Notwithstanding any other provision of these terms, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
15. Venue and Governing Law
For any dispute not subject to arbitration or under the jurisdiction of a small claims court, you and Candid agree to submit to the personal and exclusive jurisdiction of and venue in the federal and provincial courts located in Ontario. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
This Creator Agreement and the relationship between you and Candid shall be governed by the laws of the Province of Ontario without regard to conflict of law provisions.
16. Links to Third-Party Sites and Services
The Platform may provide, or third parties may provide, links to other sites, applications or resources. Because Candid has no control over such sites, applications and resources, you acknowledge and agree that Candid is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Candid shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
Waiver and Severability of Terms of this Creator Agreement. The failure of Candid to exercise or enforce any right or provision of this Creator Agreement shall not constitute a waiver of such right or provision. If any provision of this Creator Agreement is found by an arbitrator or court of competent jurisdiction (as applicable) to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Creator Agreement remain in full force and effect.
Notice. Candid may give notice by any means of communication reasonably anticipated to notify you of the information provided. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form.
Assignment. This Creator Agreement is personal to you, and is not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
No Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in this Creator Agreement, there shall be no third-party beneficiaries to this Creator Agreement.