FX Terms of Service
Last updated: December 5, 2024
These Terms of Service constitute a legally binding agreement between you and Fossick, LLC, a Colorado limited liability company (“FX”) governing your use of the FX Platform. FX’s websites (including www.fossickx.com (the “Sites”), mobile applications (the “Apps”), and related services, information and communications are collectively referred to as the “FX Platform.”
The use of the FX Platform and the provision and use of the Services is subject to the Arbitration Agreement detailed in Exhibit A hereto (the “Arbitration Agreement”). You acknowledge that by using the FX Platform you have reviewed the Arbitration Agreement.
The use of the FX Platform and the provision and use of the Services is subject to the Code of Conduct detailed in Exhibit B hereto (the “Code of Conduct”). You acknowledge that by using the FX Platform you have reviewed the Code of Conduct.
The use of all personal data you submit to the FX Platform or which we collect about you is governed by our Privacy Policy (“Privacy Policy”). A copy of our Privacy Policy is available [PRIVACY POLICY LINK]. You acknowledge that by using the FX Platform you have reviewed the Privacy Policy.
Your consent at registration and continued use of the FX Platform constitutes your acceptance of and agreement to all of the terms and conditions in these Terms of Service, the Privacy Policy, the Arbitration Agreement, the Code of Conduct, as well as any future amendments and additions to this Agreement (as defined below) FX may publish from time to time. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must deactivate your account, and immediately stop using the FX Platform.
The Privacy Policy, the Arbitration Agreement, and the Code of Conduct are incorporated by reference into these Terms of Service and together form and are hereinafter referred to as the “Agreement”.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AND ABIDE BY ITS TERMS, YOU MAY NOT USE OR ACCESS THE FX PLATFORM.
PLEASE NOTE: EXHIBIT A SPECIFIES HOW USERS AND FX RESOLVE DISPUTES. EXHIBIT A CONTAINS AN ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT, WITH LIMITED EXCEPTION, REQUIRES YOU TO SUBMIT DISPUTES AND CLAIMS YOU HAVE AGAINST FX TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE READ IT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
BY ACKNOWLEDGING THE TERMS OF SERVICE AND/OR USING THE FX PLATFORM, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT) AND YOU ACCEPT ALL OF ITS TERMS.
A few highlights of these Terms of Service include:
You must be at least the legally required age in the jurisdiction in which you reside (18 years old), and otherwise capable of entering into binding contracts, in order to use or access the FX Platform (Section 2).
Your agreement that the technology for the FX Platform is provided “as is” and without warranty (Section 15).
Your agreement that FX provides no warranty and has no liability regarding User action on the FX Platform or the performance of Services (Section 15).
Your acknowledgment and agreement that FX does not supervise, scope, direct, control, or monitor any Seller and the Goods sold, or the Projects offered by Sellers on the FX Platform (Section 1).
Your acknowledgement and agreement that Buyers are solely responsible for determining if the Seller they hire is reputable and capable of fulfilling the contemplated transactions (Sections 1 and 20).
Your acknowledgement and agreement that Sellers are independent contractors to Buyers and not employees, independent contractors, or service providers of FX (Section 1).
Your agreement to hold harmless and indemnify FX from claims due to your use of or inability to use the FX Platform or content submitted from your account to the FX Platform (Section 16).
Your agreement to arbitrate disputes with FX on an individual basis to the fullest extent permitted by applicable law (Exhibit A).
The FX Platform Connects Sellers and Buyers
The FX Platform is a web- and app-based two-sided marketplace which enables connections between Buyers and Sellers. “Buyers” are individuals and/or businesses seeking to purchase cryptocurrency mining equipment, power generation equipment, and other products and equipment (the “Goods”) and to access sites with power generation capacity for cryptocurrency mining and data center operations (the “Projects”) from Sellers, and “Sellers” are businesses seeking to sell Goods and Projects to Buyers. Buyers and Sellers together are hereinafter referred to as “Users.” If you agree on the terms of a sale of Goods or the acquisition of a Project with another User, you and such other User form a Sale Agreement directly between the two of you as set forth in more detail in Section 3 below.
SELLERS ARE INDEPENDENT BUSINESS OWNERS. SELLERS ARE INDEPENDENT CONTRACTORS OF BUYERS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS, OR FRANCHISEES OF FX. FX DOES NOT SELL GOODS OR PROJECTS AND DOES NOT EMPLOY INDIVIDUALS TO SELL GOODS OR PROJECTS. FX OPERATES AS AN ONLINE MARKETPLACE THAT CONNECTS BUYERS WITH SELLERS.
USERS HEREBY ACKNOWLEDGE THAT FX DOES NOT SUPERVISE, SCOPE, DIRECT, CONTROL, OR MONITOR A SELLER’S GOODS AND/OR PROJECTS AND EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY FOR THE GOODS AND PROJECTS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOODS, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE.
Any reference on the FX Platform to a Seller being licensed or credentialed in some manner, or “reliable,” “reliability rate,” “elite,” “great value,” “background checked,” “vetted” (or similar language) designations indicates only that the Seller has completed a relevant account registration process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification or guarantee by FX of such Seller’s skills or qualifications or whether they are licensed, insured, trustworthy, safe, or suitable. Instead, any such description is intended to be useful information for Buyers to evaluate when they make their own decisions about the identity and suitability of Sellers whom they select, interact, or contract with via the FX Platform.
The FX Platform enables connections between Users for the fulfillment of transactions involving Goods and Projects. FX is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Goods, Projects, Sellers, or Buyers, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings or reviews provided by Users with respect to each other. FX makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Goods requested or Projects offered by, or the communications of or between, Users identified through the FX Platform, whether in public or private, via on- or off-line interactions, or otherwise.
Seller Background Checks and User Representations and Warranties
Seller Background Checks
Sellers may be subject to a review process before they can register for and during their use of the FX Platform, which may include but is not limited to identity verification and criminal background checks, using third party services as appropriate (“Background Checks”). Although FX may perform Background Checks, FX cannot confirm that any User is who they claim to be, and FX cannot and does not assume any responsibility for the accuracy or reliability of Background Check information.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. FX will not be liable for any false or misleading statements made by Users of the FX Platform.
NEITHER FX, NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY REFERRED TO AS “AFFILIATES” ) IS RESPONSIBLE OR LIABLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE FX PLATFORM AND, TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE FX AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE FX PLATFORM.
User Representations and Warranties. All Users represent and warrant that:
You are at least of the legally required age in the jurisdiction in which you reside and are otherwise capable of entering into binding contracts;
You have the right, authority, and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide;
You have read, understand, and agree to be bound by these Terms of Service and the Privacy Policy;
You will only sell Goods that you have title to in a locale where such sale is legal and you will only offer Projects that you have a legal right to offer.
You will respect the privacy (including without limitation private, family and home life), property, and data protection rights of Users and will not record (whether video or audio or otherwise) any interaction by or with any User and/or FX in connection with the FX Platform without the prior written consent of FX and/or the relevant User, as applicable;
You will fulfill the commitments you make to other Users, communicate clearly and promptly through the chat thread, be present and/or available at the time you agree upon with your Seller or Buyer as the case may be, and only utilize the third-party payment service provider specified or approved by FX to make or receive payment for Goods and Projects acquired through the FX Platform;
You will act professionally and responsibly in your interactions with other Users;
You will use your real name or business name on your profile;
When using or accessing the FX Platform, you will act in accordance with all applicable local, state, provincial, national, or international law or custom and in good faith;
Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
Other than as fully and promptly disclosed in writing to FX, you do not have any motivation, status, or interest that FX may reasonably wish to know about in connection with the FX Platform, including without limitation, if you are using or will or intend to use the FX Platform for any journalistic, academic, investigative, or unlawful purpose.
Seller Warranties. Sellers additionally represent and warrant that:
When using the FX Platform, you are operating as a sole proprietor, partnership, limited liability company, limited liability partnership, corporation, or other business entity;
You are customarily engaged in an independently established business of the same nature as the services performed for Buyers through the FX Platform, and maintain an independent clientele;
You have the unrestricted right to operate in the jurisdiction in which you are located;
If you are located in a jurisdiction that requires you to have a business license or business tax registration, you have the required business license or business tax registration;
You are responsible for identifying and obtaining any required licenses, permits, or registrations before offering Goods and access to Projects;
You have any and all insurance required to operate your business and provide your Goods and services;
You will use your real name or business name and an up-to-date photo on your profile; and
You will honor your commitments to other Users on the Platform, including by responding to invitations promptly; selling the Goods and/or Project(s) as agreed upon with your Buyer; and providing timely, high-quality customer service to your Buyers.
Contract between Buyers and Sellers.
You acknowledge and agree that a legally binding contract with another User (the “Sale Agreement”) is formed when you and that User agree on the terms of a sale. The terms of the Sale Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the FX Platform, and any other contractual terms accepted by both the Seller and their Buyer to the extent such terms do not conflict with the terms in this Agreement, including this Section 3, and do not expand FX’s obligations or restrict FX’s rights under this Agreement. FX is not a party to any Sale Agreement and the formation of a Sale Agreement will not, under any circumstances, create an employment or other service relationship between FX and the Seller, nor will it create an employment relationship between the Buyer and the Seller. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of FX.
Buyers, in their sole discretion, determine whether they will allow someone to utilize the FX Platform on their behalf. Buyers agree that if someone other than them uses the Platform on their behalf, they are appointing that person as their agent (“Buyer’s Agent”) and the Seller may take and follow direction from the Buyer’s Agent as if such direction was given from the Buyer. If you are a Buyer’s Agent and accessing and using the FX Platform on behalf of a Buyer, you represent that you have the authority to act as their agent and to bind that person as the principal to all provisions of the Terms of Service. Buyer’s Agent may authorize any applicable waiver of the Buyer’s scoping, direction, or instruction of the Seller’s work or delivery of the Goods or Project in the Buyer’s stead. Buyer agrees that such direction and/or waiver is valid against Buyer and Buyer’s Agent, and Buyer shall be responsible and liable for all such direction and/or waiver as if made by Buyer him or herself. Buyer assumes full and sole responsibility for the acts and omissions of Buyer’s Agents.
The Buyer shall pay their Seller(s) in full for all Goods and Projects purchased via the FX Platform as indicated on the FX Platform, at the rates agreed to by the parties in the Sale Agreement. Each User agrees to comply with the Sale Agreement and this Agreement during the engagement, performance, and completion of a sale.
Billing and Payment
Users of the FX Platform contract for Goods and Projects directly with other Users. FX will not be a party to any contracts for Goods or Projects. Buyer, and not FX, is responsible for payment for all Goods and Projects services through the FX Platform. Such payment must be made via the FX Platform. FX is not obligated to compensate Seller for Buyer’s failure to pay for services.
The Purchase Payment, service charge, and other fees and charges (if any) must be paid through the FX Platform. Buyers on the FX Platform will be required to provide their payment method details to FX and the FX Platform. Buyers will be responsible for paying the invoice(s) for the Goods and Projects (the “Invoice(s)”), which will include the pricing terms of everything provided by the Seller and agreed upon by the parties (“Purchase Payment”) and the service charge FX assesses to the Buyer for access to and information regarding Sellers. All Invoices must be paid in full upon Buyer’s purchase of the Goods or Project(s). Buyers may also be charged credit card processing fees for payments made using credit cards.
Sellers will be required to set up an account with the FX Platform, which may require any or all of the following: registration with the FX Platform, consent to these Terms of Service, and completion of a vetting process and/or account validation at the request of the FX Platform. Sellers shall be paid the Purchase Payment, less applicable fees and charges. Payment for completed transactions are initiated as soon as the Seller successfully completes the delivery of the Goods and/or Project.
To help prevent fraud and safeguard User information from the risk of unauthorized access, FX and/or the FX Platform may validate an account before activation and prior to each sale. As part of the validation process, temporary charges may be placed on the account associated with the User and then refunded within 1-5 business days. This temporary charge may vary depending on the estimated value of the Goods and Project(s).
FX reserves the right (but not the obligation) upon request from Buyer or Seller, or upon notice of any potential fraud, unauthorized charges, or other misuse of the FX Platform, to place on hold any Purchase Payment, or refund or provide credits, or arrange for the FX Platform to do so.
Users of the FX Platform may be liable for any taxes or similar charges required to be collected and/or paid on the Goods and/or fees provided under the Agreement.
In certain jurisdictions, applicable rules may require that we collect or report tax and/or revenue information about you. You agree that FX may issue on your behalf receipts or similar documentation to facilitate accurate tax reporting.
Public Areas; Acceptable Use
The FX Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, postings, chat areas, news groups, forums, communities, and/or other message or communication Projects (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the FX Platform, you should not share your personal contact information with other Users.
Without limitation, the FX Platform may not be used for any of the following purposes:
To defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and FX staff;
To publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful language, material or information;
To upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or FX;
To upload files or scripts such as Trojan horses, corrupt files, SQL injections, worms, timebombs, cancelbots or any other files or software that may damage FX or its Users’ computers;
To advertise or offer to sell any goods or services for any commercial purpose through the FX Platform which are not relevant to the Goods or Projects;
To conduct or forward surveys, contests, pyramid schemes, or chain letters;
To impersonate another person or a User or allow any other person or entity to use your user profile to post or view comments (except as may be permitted under Section 3 for Buyer’s Agent).
While using the FX Platform, you may not:
Use the FX Platform for any unauthorized or illegal purpose, including but not limited to posting or selling Goods and/or Projects in violation of local, state, or national law;
Post or upload any content which you have not obtained the necessary rights and permissions to use accordingly;
Post the same Goods and/or Project(s) repeatedly (i.e., “spamming”);
Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the FX Platform;
Restrict or inhibit any other User from using and enjoying the Public Areas;
Imply or state that any statements you make (whether on or off the FX Platform) are endorsed by FX, without the prior written consent of FX;
Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the FX Platform, or the electronic addresses or personal information of others, in any manner;
Frame or utilize framing techniques to enclose the FX Platform or any portion thereof;
Hack or interfere with the FX Platform, its servers or any connected networks;
Adapt, alter, license, sublicense or translate the FX Platform for your own personal or commercial use;
Remove, alter, or misuse, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by FX and Affiliates;
Upload content to the FX Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
Solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the FX Platform as set forth herein;
Collect usernames, email addresses, or other personal information of Users by electronic or other means;
Use the FX Platform in violation of this Agreement;
Use the FX Platform in a manner that is false or misleading (directly or by omission or failure to update information), or for the purpose of accessing or otherwise obtaining FX’s trade secret information for public disclosure or other purposes;
Attempt to circumvent the payments system or service charge in any way including, but not limited to, making or processing payments outside of the FX Platform, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number;
Cause any third party to engage in the restricted activities above; or
Use tools with the goal of masking your IP address (like the TOR network).
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. FX will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
Mobile App Updates and Upgrades
By installing the App(s), you consent to the installation of the App(s) and any updates or upgrades that are released through the FX Platform. The App (including any updates or upgrades) may (i) cause your device to automatically communicate with FX’s servers to deliver the App functionality and to record usage metrics, (ii) affect App-related preferences or data stored on your device, and (iii) collect personal information as set out in our Privacy Policy. You can uninstall the App(s) at any time.
Deactivation and Suspension
FX may suspend your right to use the FX Platform pending its investigation of a potential breach by you of this Agreement. FX may deactivate your account or limit your use of the FX Platform upon its determination that you breached a provision of this Agreement (a “User Breach”). FX will provide you with written notice of its determination as required by law, unless we have reason to believe the User’s account has been compromised such that the notice would go to the wrong person, or notice would otherwise be counterproductive or would create a risk to safety. If you wish to appeal this determination, please contact [email protected] within fourteen (14) days of receipt of such notice with the grounds for your appeal.
If FX suspends or deactivates your account or limits your use of the FX Platform pursuant to this Section 7, you are thereafter prohibited from registering and creating a new account under your name or business name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
Even after your right to use the FX Platform is suspended, terminated, or limited, this Agreement will remain enforceable against you. FX reserves the right to take appropriate legal action pursuant to the Agreement.
FX reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the FX Platform at its sole discretion. FX will provide you with notice of any such modification or discontinuation as required by law. To the extent permitted by law, FX shall not be liable to you for any modification or discontinuance of all or any portion of the FX Platform. FX has the right to restrict anyone from completing registration as a Seller if such person may threaten the safety and integrity of the FX Platform, or if such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the FX Platform and deactivating your account.
Account, Password, Security, and Telephone Communications
You must register with FX and create an account to use the FX Platform. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by FX for accessing the FX Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. FX has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account, or you suspect any other breach of security, you agree to notify FX immediately.
You acknowledge that telephone calls to or from FX, together with its agents and Affiliates, may be monitored and recorded for the purposes of quality control and training.
You verify that any contact information provided to FX, its agents and Affiliates, and Users, including, but not limited to, your name, business name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or deactivate your account. Should any of your contact information change, you agree to immediately notify FX before the change goes into effect by visiting help.tr.co. If the change regards ownership of your telephone numbers, you may notify FX by texting STOP to any text message sent to the retiring phone number.
User Generated Content
“User Generated Content” is defined as any information and materials you provide to FX, its agents, Affiliates, and corporate partners, or other Users in connection with your registration for and use of the FX Platform and participation in FX promotional campaigns, including without limitation the information and materials posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that FX is not involved in the creation, development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that FX has no obligation to monitor or review User Generated Content but reserves the right to limit or remove User Generated Content if it is not compliant with the terms of this Agreement.
You hereby represent and warrant to FX that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the transfer or sale of illegal, counterfeit or stolen items; (c) will not infringe on any third party’s privacy, or copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or personality (to the extent recognized by law in the country where the Goods are Sold or Project is located); (d) will not violate any law, statute, ordinance, code, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, incitement of hatred or false or misleading advertising, anti-spam or privacy); (e) will not be defamatory, libelous, malicious, threatening, or harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, scripts such as Trojan Horses, SQL injections, worms, time bombs, corrupt files, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not claim or suggest in any way that you are employed or directly engaged by or affiliated with FX or otherwise purport to act as a representative or agent of FX; and (i) will not create liability for FX or cause FX to lose (in whole or in part) the services of its Internet Sellers (ISPs) or other partners or suppliers.
The FX Platform hosts User Generated Content relating to reviews and ratings of specific Sellers (“Feedback”). Feedback is such User’s opinion and not the opinion of FX and has not been verified or approved by FX. You agree that FX is not responsible or liable for any Feedback or other User Generated Content. FX encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. FX is not obligated to investigate any remarks posted by Users for accuracy or reliability or to consider any statements or materials posted or submitted by Users about any Feedback but may do so at its discretion. You agree that Feedback enables Users to post and other Users to read about Users’ expression of their experiences and that you will not complain or take any action merely because you happen to disagree with such Feedback. You may request removal of a review that violates this Agreement by contacting the Support team at [CUSTOMER SERVICE LINK]. Each Buyer should undertake their own research prior to booking to be satisfied that a specific Seller has the right qualifications to complete a given transaction.
FX respects the personal and other rights of others and expects Users to do the same. FX is entitled to identify a User to other Users or to third parties who claim that their rights have been infringed by User Generated Content submitted by that User, so that they may attempt to resolve the claim directly.
If a User believes, in good faith, that any User Generated Content provided on or in connection with the FX Platform is objectionable or infringes any of its rights or the rights of others (e.g. counterfeiting, insult, invasion of privacy), the User is encouraged to notify FX. If a User discovers that User Generated Content promotes crimes against humanity, incites hatred and/or violence, or concerns child pornography, the User must notify FX. Such notification can be made at Fossick, LLC, attn. Legal 1942 Broadway Ste. 314C Boulder, CO 80302.
Links to Third-Party Websites
The FX Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by FX or association with those websites, their content, or their operators. Such links (including without limitation external websites that are framed by the FX Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. FX does not control any such websites, and is not responsible for their availability, accuracy, content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that FX is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that FX has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the FX Platform at its sole discretion.
The use of any website controlled, owned, or operated by a third party is governed by the terms and conditions of use and privacy policy for that website. You access such third-party websites at your own risk. FX expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the FX Platform. You hereby agree to hold FX harmless from any liability that may result from the use of links that may appear on the FX Platform.
FX Operates as an Online Marketplace
FX operates as an online marketplace that connects Buyers with Sellers. FX does not sell Goods and/or Project(s) and does not employ people to sell Goods and/or Project(s). Sellers operate as independent business owners and are customarily engaged in an independently established business of the same nature as that performed for Buyers through the FX Platform. FX does not control or direct the Sellers’ performance or set their work locations, work hours, or terms of work. Sellers provide Goods and services under their own name or business name, and not under FX’s name. Sellers provide their own tools and supplies to fulfil their duties; FX does not provide the tools or supplies. Sellers are free to maintain a clientele without any restrictions from FX and are free to offer and provide their services elsewhere, including through competing platforms. Sellers are free to accept or reject Buyers and contracts. Sellers are not penalized for rejecting Buyers or contracts, though if Sellers accept a Buyer or contract through the FX Platform, they are expected to fulfill their contractual obligations to their client. Sellers set their own rates for Goods and Project(s) performed in the FX general marketplace, without deduction by FX.
Sellers acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Sale Agreements and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, typefaces and other content, including FX designs, trademarks, and logos (collectively, “Proprietary Material” ) that Users see or read through the FX Platform is owned by FX, excluding User Generated Content, which Users hereby grant FX a license to use as set forth above in Section 9. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. FX owns all Proprietary Material, as well as the coordination, selection, arrangement, and enhancement of such Proprietary Materials. Proprietary Material is protected by domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the FX Platform without FX’s express prior written consent and, if applicable, the consent of the holder of the rights to the User Generated Content. Any use of such Proprietary Material other than as permitted herein is expressly prohibited.
The service marks and trademarks of FX, including without limitation FX and associated logos, are service marks owned by FX. Any other trademarks, service marks, logos and/or trade names appearing via the FX Platform are the property of their respective owners. FX’s proprietary marks and logos are not available for use by Sellers. You may not copy or use any of these marks, logos, or trade names without the express prior written consent of the owner.
Copyright Complaints and Copyright Agent
FX respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the FX Platform infringe upon your copyright or other intellectual property right, please send the following information to FX’s Copyright Agent at Fossick, LLC attn. Copyright Agent, 1942 Broadway Ste. 314C Boulder, CO 80302:
A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the FX Platform where the material you claim is infringed is visible. Include enough information to allow FX to locate the material, and explain why you think an infringement has taken place;
A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
Your name, address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
Your electronic or physical signature as the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special, and unique asset of FX and agree that you will not, for the lifetime of your account on FX plus 10 years thereafter, disclose, transfer, or use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than use of the FX Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer, or use. You shall promptly notify FX in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall return all originals and any copies of any and all materials containing Confidential Information to FX promptly upon deactivation of your User account or termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of FX’s trade secrets, confidential and proprietary information, and all other information and data of FX that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other Proprietary Materials and confidential information relating to FX or FX’s business, operations or properties, including information about FX’s staff, Users or partners, or other business information disclosed or obtained directly or indirectly in writing, orally or by drawings or observation.
Disclaimer of Warranties
Please note that for Users outside the United States, this Section 15 may be subject to the dispute resolution provisions set forth in the Arbitration Agreement.
Use Of The FX Platform Is Entirely At Your Own Risk
THE TECHNOLOGY OF THE FX PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, AND NON-INFRINGEMENT. FX MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE FX PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE FX PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE FX PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
FX does not warrant, endorse, guarantee, or assume responsibility for any Goods or Projects advertised or offered by a third-party through the FX Platform or any hyperlinked website or featured in any banner or other advertising, and FX will not be a party to or in any way be responsible for any transaction between you and other Users, or you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, FX and Affiliates do not warrant that access to the FX Platform will be uninterrupted or that the FX Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the FX Platform, or as to the timeliness, accuracy, reliability, completeness or content of any service, information or materials provided through or in connection with the use of the FX Platform. FX and Affiliates are not responsible for the conduct, whether online or offline, of any User. FX and Affiliates do not warrant that the FX Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. FX and Affiliates will implement appropriate technical and organizational measures to ensure a level of security adapted to the risk for any personal information supplied by you.
Notwithstanding any feature or service that a Buyer may use to expedite Seller selection, each Buyer is responsible for identifying the Goods and Project(s) and selecting or otherwise approving their Seller and FX does not warrant any goods or services purchased by a Buyer and does not recommend any particular Seller. FX does not provide any warranties or guarantees regarding any Seller’s ability, professional accreditation, registration, or licensure.
No Liability
You acknowledge and agree that FX is only willing to provide the FX Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold FX and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorney’s fees and costs (collectively, “Liabilities” ) that have arisen or may arise, relating to your or any other party’s use of or inability to use the FX Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by FX and Affiliates, and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL FX AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR, AND YOU HEREBY RELEASE FX AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY FX, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR ATTORNEYS FEES AND COSTS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE FX PLATFORM OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. Some jurisdictions do not allow the exclusion of certain warranties or limitation of incidental or consequential damages; in such cases the above limitations may not apply to you in their entirety.
FX AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS FX PLATFORM. FX AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE FX PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT FX AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO FX (IF YOU ARE A BUYER) OR TOTAL PURCHASE PAYMENTS PAID TO YOU BY BUYERS (IF YOU ARE A SELLER), DURING THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification
You hereby agree to indemnify, defend, and hold harmless FX and Affiliates from and against any and all Liabilities incurred in connection with (i) your use or inability to use, or your participation on, the FX Platform; (ii) your participation in any transaction on the FX Platform, or your ability or inability to perform or obtain the agreed upon Goods/Project(s) or to receive payment therefore; (iii) your breach or violation of this Agreement; (iv) your violation of any law, or the rights of any User or third party; (v) your failure to abide by your representations and warranties in Section 2; (vi) any content submitted by you or using your account to the FX Platform, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful; and (vii) if you are a Buyer, the acts or omissions of any Buyer’s Agents. FX reserves the right, in its own sole discretion, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of FX.
Dispute Resolution
To expedite resolution and reduce the cost of any dispute, controversy or claim related to, arising from or regarding your use of the FX Platform, your relationship with FX, Goods, Projects, or this Agreement (including previous versions), (a “Dispute”), you and FX agree to first attempt to negotiate any Dispute informally for at least thirty (30) days before initiating any out of court settlement (such as mediation or arbitration) or court proceeding (except as may be set forth in the Arbitration Agreement). Such informal negotiations will commence upon written notice. Your address for such notices is the one associated with your account, with an email copy to the email address you have provided to FX. FX’s address for such notice is:
Fossick, LLC
Attn. Legal
1942 Broadway
Ste. 314C
Boulder, CO 80302
PLEASE NOTE: FOR MORE INFORMATION ABOUT DISPUTE RESOLUTION TERMS, PLEASE REVIEW THE ARBITRATION AGREEMENT IN EXHIBIT A, BELOW. THE DISPUTE RESOLUTION SECTION CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION.
No Agency; No Employment
No agency, partnership, joint venture, employer-employee, or franchiser-franchisee relationship is intended or created by this Agreement.
General Provisions
Failure by FX to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and FX with respect to its subject matter, and supersedes and governs any and all prior agreements or communications except as otherwise specified in the Arbitration Agreement in Exhibit A. However, this Agreement does not supersede other agreements about other subject matter that you may have with FX. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” provision in the Arbitration Agreement, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (1) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (2) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. You hereby acknowledge and agree that we may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Upon the effective date of the assignment of the Agreement (a) FX shall be relieved of all rights, obligations and/or liabilities to you arising in respect of events postdating the effective date of the assignment and, (b) the assignee entity shall replace FX for the performance of this Agreement. This Agreement may not be assigned or transferred by you without our prior written approval. Any assignment in violation of this Section 19 shall be null and void. This Agreement will inure to the benefit of FX, its successors and assigns. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement or your use of the FX Platform.
Licensing
Sellers alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering Goods and Projects on the FX Platform. Indeed, certain types of Goods and Project(s) may be prohibited altogether, and it is the responsibility of Sellers to avoid such prohibited Goods and Project(s). Penalties may include fines or other law enforcement. If you have questions about how national/ state/ provincial/ territorial and local laws apply to your Goods and Project(s) on the FX Platform, you should first seek appropriate legal guidance.
Because FX does not supervise, scope, direct, control, or monitor a Seller’s work or performance, Buyers must determine for themselves whether a Seller has the abilities and qualifications necessary to complete any contemplated transaction. Buyers may wish to discuss with their Seller any specific hazards, obstacles, or impediments in the Goods or Project (both visible and concealed) that may impact Buyer.
Changes to this Agreement and the FX Platform
FX reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement (including the Terms of Service, Privacy Policy, Arbitration Agreement, and Code of Conduct) and review, improve, modify or discontinue, temporarily or permanently, the FX Platform or any content or information through the FX Platform at any time, effective with or without prior notice and without any liability to FX. FX may also impose limits on certain features or restrict your access to part or all of the FX Platform without notice or liability.
FX will endeavor to notify you of material changes to this Agreement by email but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must deactivate your account, and immediately stop using the FX Platform. Your continued use of the FX Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes, except where prohibited by any laws or regulations in your jurisdiction.
No Rights of Third Parties
The provisions of this Agreement are for the sole benefit of the Parties and their permitted successors and assigns, and they will not be construed as conferring any rights to any third party or to give any person or entity other than the User any interest, remedy, claim, liability, reimbursement, claim of action or any other claim of action with respect to or in connection with any agreement or provision contained herein or contemplated hereby. None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement, provided, however, that a Buyer’s Agent may act in the name of and on behalf of his/her Buyer.
Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures, and other communications (collectively, “Notices”) to which this Agreement refers electronically, including without limitation by email or by posting Notices on the Sites. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all Notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day it is shown as delivered by the overnight delivery service’s tracking information, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the FX Platform, please contact us by email at [CUSTOMER SERVICE LINK] or by mail to Fossick, LLC attn, Customer Service 1942 Broadway Ste. 314C Boulder, CO 80302.
Consent to Electronic Signatures
By using the FX Platform, you agree to transact electronically through the FX Platform. You also agree to the following: (i) your electronic signature is the legal equivalent of your manual signature and has the same legal effect, validity and enforceability as a paper-based signature; (ii) your use of a keypad, mouse or other device to select an item, button, icon or similar act/action, constitutes your signature as if actually signed by you in writing; and (iii) no certification authority or other third party verification is necessary to validate your electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of your electronic signature.
EXHIBIT A
Arbitration Agreement
Dispute Resolution – Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND FX CAN BRING CLAIMS COVERED BY THIS ARBITRATION AGREEMENT. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND FX TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND FX MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL DISPUTES OR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act (“FAA”) and survives the termination of this Agreement and your relationship with FX.
To the fullest extent permitted by applicable law, you and FX agree to arbitrate any and all disputes and claims (collectively, “Claim” or “Claims”) relating to, arising from or regarding your use of the FX Platform, your relationship with FX, Goods, Project(s), or this Agreement (including previous versions), including Claims by FX, Claims against FX and Claims against FX’s Affiliates (including its parent company).
To the fullest extent permitted by applicable law, this includes, but is not limited to, claims related to payments, any city, county, state or federal wage and hour law, compensation, meal or rest breaks, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, personal injury, property damage or loss, emotional distress, any promotions or offers made by FX; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; claims arising under the Fair Labor Standards Act, Civil Rights Act, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by FX and covered by the Employee Retirement Income Security Act or funded by insurance), and state or local statutes, if any, addressing the same or similar subject matters; and all other federal, state or local statutory and common law claims.
If there is a dispute about the arbitrability of any claim (including about the formation, scope, applicability, interpretation, validity, and enforceability of this Arbitration Agreement), you and FX agree that this threshold dispute shall be resolved by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND FX ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL DISPUTES AND CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES THAT, BY THE TERMS OF THIS ARBITRATION AGREEMENT, ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
Prohibition of Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and FX agree that any arbitration will be limited to the Claim between FX (and/or, if applicable, its Affiliates) and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND FX ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and FX otherwise agree, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to California Private Attorney General Act Claims, which are addressed separately below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
Rules and Logistics Governing Arbitration
In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party. The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”). Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules. You and FX agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, the parties will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
(i) Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
(ii) At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and FX agree otherwise, any arbitration hearings with a Seller will take place in the county of the Seller’s billing address, and any arbitration hearings with a Buyer will take place in the county in which the Buyer received Goods. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for AAA arbitration.
Exceptions to Arbitration
The Arbitration Agreement shall not require arbitration of the following types of claims:
Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
Applications for provisional remedies, preliminary injunctions, and temporary restraining orders relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and
Claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or a similar local, state or federal agency, and nothing in this Arbitration Agreement 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. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
Severability
In addition to the severability provisions in Section 1(b), in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed, and the remainder of the Arbitration Agreement shall be given full force and effect.
Opt Out of Arbitration Agreement
For Sellers, you may opt out of the requirement to arbitrate if you have not previously agreed to an arbitration provision in FX’s Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this version of the arbitration agreement in the manner specified below, but opting out of this arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with FX.
Except as specified in this Arbitration Agreement, if you are a Seller, you may opt out of the Arbitration Agreement by notifying FX in writing within 30 days of your agreement to these Terms of Service. To opt out, you must send a signed written notification to Fossick, LLC Attn. Legal 1942 Broadway Ste. 314C Boulder, C0 80302, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you wish to opt out of the Arbitration Agreement.
Seller Claims in Pending Class Action
If you are a member of a putative class in a wage and hour class action lawsuit against FX that is pending as of the effective date of these Terms of Service (a “Pending Class Action”), then this Arbitration Agreement shall not apply to your claims in that particular class action. Instead, your claims in that Pending Class Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
Telephone Communications and Agreement to be Contacted
Your Consent to Receive Automated Calls/Texts.
You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive calls or text messages (which may include prerecorded voice messages, and/or autodialed calls) from FX and Affiliates, or from independent contractors (including Sellers) related to promotions, your account, registration, onboarding, upcoming or scheduled transactions, changes and updates, service outages, follow ups to any push notifications delivered through our mobile application, any transaction with FX, and/or your relationship with FX . You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that FX may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means, such as skip tracing, caller ID capture, or other means. You agree to receive automated calls and text messages from FX and Affiliates, or from independent contractors (including Sellers) even if you cancel your account or terminate your relationship with FX, except if you opt-out. You understand that you do not have to agree to receive automated promotional calls/texts as a condition of purchasing any goods or services. Message frequency varies. Carriers are not liable for delayed or undelivered messages. To opt-out, please see the Opt-Out Instructions below.
Opt-Out Instructions.
Your consent to receive automated calls and texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, text STOP to any text message you receive or email [email protected] and specify that you want to opt out of text messages. You may also text HELP for help. You acknowledge and agree to accept a final text message confirming your opt-out. To opt-out of automated voice calls (not text messages), you must provide FX with written notice to opt-out-texts@ fossickx.com revoking your consent to receiving automated calls; in that written notice, you must include your full name, mailing address, account number, and the specific phone number(s) for which you wish to stop automated calls. It is your sole responsibility to notify FX if you no longer want to receive automated calls or text messages. You waive any rights to bring claims for unauthorized or undesired calls or text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request. Please note that if you opt out of automated calls or text messages, we reserve the right to make non-automated calls to you.
Fees and Charges.
There is no fee to receive automated telephone calls or text messages from FX, our agents, affiliates, and independent contractors (including Sellers). However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that FX and its agents, affiliates, and independent contractors (including Sellers) are not responsible for such charges.
Unauthorized Use of Your Telephone Device.
You must notify FX immediately of any breach of security or unauthorized use of your telephone device. Although FX and Affiliates, and independent contractors (including Sellers) will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.
Your Indemnification to FX.
You agree to indemnify FX and Affiliates, and independent contractors (including Sellers) for any privacy, tort, or other claims, including claims under the Federal Telephone Consumer Protection Act or its state law equivalent, relating to your voluntary provision of a telephone number that is not owned by you and/or your failure to notify FX of any changes in your contact information, including telephone number. You agree to indemnify, defend, and hold FX and Affiliates harmless from and against any and all such claims, losses, liability, costs, and expenses (including reasonable attorneys’ fees). FX shall have the exclusive right to choose counsel, at your expense, to defend any such claims.
General.
You are responsible for obtaining and maintaining all telephone devices and other equipment and software, and all internet service provider, mobile service, and other services needed to receive calls and text messages. Text messaging may only be available with select carriers with compatible handsets. Your obligations under this Arbitration Agreement will survive termination of the Terms of Service.
Worker Classification and Withholdings
FX does not employ Sellers. FX is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to unemployment or employment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with a User’s use of the FX Platform. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Media and User Generated Content
To the extent permitted by law, you hereby grant FX a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully-paid, unrestricted, sublicensable (through multiple tiers), transferable right to exercise all copyrights, publicity rights, and any other rights you have in (1) your User Generated Content and (2) any videotape, film, recording, photograph, voice, or any instrumental, musical, or other sound affects you provide to FX (collectively, “Media”) in exchange for use of the FX Platform, in any media now known or not currently known in order to market, operate, and improve upon the FX Platform, including but not limited to the right to the following:
Use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Media or User Generated Content;
Exhibit, distribute, display, transmit, and broadcast on any and all media (including, without limitation, the internet), any Media or User Generated Content (or portion thereof) or any videotape, film, recording, or photograph (or portion thereof) that such User provides to FX or that FX takes of User, and use, reproduce, modify, or creative derivatives of such User Generated Content or Media, including such User’s picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”) in any format and through any distribution channels;
Reproduce in any and all media any recordings of such User’s voice, and any related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the FX Platform or any FX promotional campaigns;
Use, and permit to be used, such User’s User Generated Content, Media, Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the FX Platform in any media, in any format and through any distribution channels; and
Use, and permit to be used, such User’s name and identity in connection with the FX Platform or any FX promotional campaigns.
Further, you hereby waive any and all moral rights in connection with the Media (to the extent allowable by law). Each User warrants and represents that they have the lawful authority to grant the rights set out above, and that such rights do not negatively impact any third-party rights.
Each User acknowledges that FX shall not owe any financial or other remuneration for using the User Generated Content, Media, Physical Likeness, or Voice provided hereunder by such User, either for initial or subsequent transmission or playback.
Each User hereby waives all rights and releases FX and Affiliates from, and shall hold harmless against any such parties for, any claim or cause of action, whether now known or unknown, including without limitation, for defamation, malicious falsehood, invasion of right to privacy, data protection, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s identity, User Generated Content, Physical Likeness, Media, or Voice in connection with the FX Platform.
Background Checks
If a Seller, you agree to promptly disclose to FX in writing if you have any potentially relevant criminal convictions (other than minor fixed penalty parking or speeding offenses), that arise during your use of the FX Platform.
Sales Tax Collection and Remittance
In jurisdictions where FX facilitates the collection and/or remittance of sales tax on behalf of Sellers, you instruct and authorize FX to collect taxes on your behalf, and/or to remit such Taxes to the relevant tax authority. You acknowledge and agree that we retain the right to cease the collection and remittance of sales taxes in a particular jurisdiction as permitted by law. You should consult with your own tax advisor to ensure your compliance with all applicable tax reporting requirements.
Release
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542, WHICH READS AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
If you are not a California resident, you waive your rights under any statute, regulation, or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Further, in consideration of the services provided by FX, you hereby release FX from any and all claims, causes of action, lawsuits, injuries, damages, losses, liabilities or other harms resulting from or relating to telephone calls or text messages, including without limitation any claims, causes of action, or lawsuits based on any alleged violations of the law (including, without limitation, the Telephone Consumer Protection Act, Truth in Caller ID Act, Telemarketing Sales Rule, Fair Debt Collection Practices Act, or any similar state and local acts or statutes, and any federal or state tort or consumer protection laws).
FX and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed, or used by others.
Governing Law
Except as expressly provided otherwise, this Agreement and your use of the FX Platform will be governed by, and will be construed under, the laws of the State of Colorado, without regard to choice of law principles.
EXHIBIT B
CODE OF CONDUCT
Buyer Code of Conduct
Buyers must act and appear friendly and professional when communicating with a Seller through the app or communicating with FX.
Buyers agree not to use foul or inappropriate language when interacting with Sellers.
Buyers may not solicit, harass, degrade, or make threats to FX support, employees, affiliates, or Sellers.
Buyers may not engage Sellers for additional or off app goods and services.
Buyers may be deactivated and banned at any time for any legal reason.
When requesting a refund or FX credit, Buyers must make such request in good faith.
Seller Code of Conduct
Sellers must act and appear friendly and professional when communicating with a Buyer through the app or communicating with FX.
Sellers may not solicit Buyers for any other services or upsells.
Sellers may not solicit, harass, degrade, or make threats to FX support, employees, affiliates, or Buyers.
Sellers may not represent themselves as an employee or representative of FX in any way, including wearing/displaying FX branding or trade dressings on their person or vehicle.
Sellers may not share, publish, or distribute any Buyer information.
Sellers may only communicate with Buyers through the FX app.
It is the Seller’s responsibility to provide FX with accurate banking information to receive payouts.
Sellers must be at least 18 years of age and only provide accurate personal information to FX.
Sellers agree not to use foul or inappropriate language when interacting with Buyers.
Sellers agree to not solicit Buyers to sign petitions, make donations, or support any political, social, or charitable causes.
Sellers may not directly collect any sort of compensation from Buyers.
Sellers agree to not discuss FX with the press unless given express permission by FX.
Sellers may be deactivated and banned from using FX at any time for any reason. In the event of deactivation, all pending payouts will be initiated immediately. Reinstatement is solely at FX’s discretion.
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