Terms of Use

(Version 12/10/2020)

READ CAREFULLY - IMPORTANT LEGAL INFORMATION CONTAINED HEREIN
ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF USE

These terms of use, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”) constitute a legally binding agreement between you and Subvia, Inc. (“Subvia,” “we,” “our” or “us”) and govern your access to and use of the Platform. Subvia’s websites, including, but not limited to, subvia.com, support.subvia.com, api.subvia.com, and subvia.com, mobile applications, including, but not limited to, the mobile iOS and Android applications entitled “Subvia” (“Apps”), and related services, information and communications are collectively referred to as the “Platform.”

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE YOU START TO USE THE PLATFORM. BY ACCESSING AND/OR USING THE PLATFORM, YOU ACCEPT AND AGREE TO BE BOUND AND TO ABIDE BY THESE TERMS OF USE. OUR PRIVACY POLICY, WHICH IS PUBLISHED HERE (“PRIVACY POLICY”), AND OTHER TERMS AND POLICIES ESTABLISHED BY SUBVIA FROM TIME TO TIME, ARE INCORPORATED HEREIN BY REFERENCE.

IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MUST NOT ACCESS OR USE THE PLATFORM.

THE PLATFORM IS OFFERED AND AVAILABLE ONLY TO USERS WHO ARE 18 YEARS OF AGE OR OLDER, CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW, AND, WHILE WE ARE PRESENTLY OFFERING THE PLATFORM ONLY IN THE UNITED STATES,  RESIDE IN THE UNITED STATES OR ANY OF ITS TERRITORIES. BY USING THE PLATFORM, YOU REPRESENT AND WARRANT THAT YOU MEET ALL OF THE FOREGOING ELIGIBILITY REQUIREMENTS. IF YOU DO NOT MEET ALL OF THESE REQUIREMENTS, YOU MUST NOT ACCESS OR USE THE PLATFORM.

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 these Terms of Use will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity, its directors, officers, employees and agents.

CHANGES TO THESE TERMS OF USE

Subvia provides Services in a very dynamic market and being able to respond to market changes and/or improve its facilitation of Services is vital to our success. Accordingly, Subvia may revise and update these Terms of Use from time to time in its discretion. All changes are effective only after notice thereof is provided to you, which shall be deemed to occur when they are posted on Subvia’s website.  Should you not agree with any revised Terms of Use, you should immediately discontinue use of the Platform and notify Subvia, in writing, within five (5) business days thereof so that we may reasonably address any specific concern you may have, including consideration of your input.

Your continued access and/or use of the Platform following Subvia’s posting of any revised Terms of Use means that you accept and agree thereto, and such shall apply to your access to and use of the Platform thereafter, upon which Subvia will rely. You are expected to check and review these Terms of Use, and any notices posted relating thereto, frequently (at least weekly), so you are aware of any changes, as they will become binding on you as provided herein. As consideration for your continued authorization as a User, each time you use the Platform, you are deemed to agree to the then current version of these Terms of Use that apply.

ADDITIONAL DEFINED TERMS

Account” means a Member’s account with Subvia that is obtained by completing the Account Registration process, and through which that Member may access and utilize the Platform.

Account Registration” means the process of completing and submitting a registration form to open an Account with Subvia, which includes providing all necessary information, agreeing to the Stripe Services Agreement, and otherwise complying with Subvia’s registration process.

Buyer Member” means a buyer/Buyer Member, who is registered to request and receive quotes for Services, to requests quotes for Services, or to otherwise use the Platform to review, evaluate (i.e., conduct such due diligence as Buyer’s deems reasonable), select, accept, buy, pay for, receive and/or facilitate the receipt of Services.

Collective Content” means User Content and Subvia Content together.

Content” means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, Services requests, quotes, message threads, reviews, scheduling and calendar information, and other information or materials available on or through the Platform.

Member” means (a) person(s), partnership or entity, who completes Subvia’s Account Registration process, including, but not limited to, Buyer Members and Seller Members.

Seller Member” means a seller/provider Member, who is registered to list, offer and advertise Services, to receive and respond to requests for quotes for Services, to transmit quotes for Services, or otherwise use the Platform to review, evaluate (i.e., conduct such due diligence as Seller’s deems reasonable), select, accept, sell, receive payment for, provide and/or facilitate the provision of Services.

Service Agreement” means a legally binding contract negotiated and entered into independently by a Seller Member and Buyer Member, which includes the terms mutually accepted by both parties. Subvia is not and shall not be a party to any Service Agreement.

Services” means the services and goods listed, quoted, scheduled, offered or provided by Seller Members, or sought, scheduled or received by Buyer Members, through the Platform.

Subvia Content” means all Content Subvia makes available on or through the Platform, including any Content licensed from a third party, but excluding User Content.

User” means any person or entity, who accesses or uses the Platform for any reason, including as or on behalf of a Buyer Member or Seller Member.

User Content” means all Content submitted, posted, uploaded, published or transmitted on or through the Platform by any User, including but not limited to photographs, profile information, descriptions, postings, reviews, requests, quotes, advertisements, messages and payments made through the Platform, but excluding Subvia Content.

All other capitalized terms shall have the meanings assigned to them herein.

USE OF THE PLATFORM

The Platform is a web-based communications platform that enables connections between Buyer Members seeking to obtain Services and Seller Members seeking to provide Services.

By registering for or using the Platform to offer, post, provide or otherwise communicate regarding Services, Seller Members represent and warrant that they, and their employees, agents, contractors and subcontractors who may perform work for them, are in all respects properly and fully qualified, experienced and duly licensed, certified, bonded and insured, as required by Buyer Members, Subvia, and/or applicable laws or regulations to which they may be subject in the jurisdiction(s) in which they offer their Services and in relation to the specific job they are performing. Seller Members otherwise agree to comply with all applicable laws, including, but not limited to, the California Consumer Privacy Act, in their use of the Platform and any personal information obtained from the Platform.

SUBVIA IS NOT IN THE BUSINESS OF PROVIDING SERVICES. Seller Members acknowledge, understand and agree that by creating/maintaining and/or using an Account on the Platform, they receive only the limited right and ability to use the Platform to identify and access persons interested in receiving Services and related tools, including, but not limited to, the ability to message those persons or schedule appointments that facilitate the provision of Services. Seller Members understand and agree that using the Platform does not guarantee that anyone will engage them for Services.

Seller Members acknowledge understand and agree that they are subscribers to Subvia’s Platform, and are not Subvia employees, joint venturers, partners or agents. Seller Members further acknowledge they exclusively establish, control and maintain the means and methods whereby they may provide their Services, including pricing, scope of work, staffing, providing their own equipment and determining their own work schedule. Subvia does not control, and has no right to control, the Services a Seller Member provides, except as provided in these Terms of Use.

SUBVIA IS NOT IN THE BUSINESS OF BUYING SERVICES. Buyer Members acknowledge, understand and agree that by creating/maintaining and/or using an Account on the Platform, they receive only the limited right and ability to use the Platform to identify and access persons interested in providing Services. Buyer Members acknowledge, understand and agree that Subvia does not recommend or provide any specified Services, and Subvia does not supervise, scope, direct, control or monitor the work of Seller Members. SUBVIA EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR ANY WORK PERFORMED BY SELLER MEMBERS AS REQUESTED BY BUYER MEMBERS IN ANY AND ALL RESPECTS.  Seller Members who do provide Services are not Subvia employees, joint venturers, partners, representatives or agents; rather, Seller Members are independent contractors for all purposes.

Likewise, Subvia is not responsible for the performance or communications of and between its Platform Users, nor does it have control over the quality, timing, legality, failure to provide or any other aspect whatsoever respecting the Services, Buyer Members or Seller Members, nor of the integrity, responsibility, competence, qualifications or any of the actions or omissions whatsoever of any User, or of any ratings or reviews provided by Users with respect to each other.

SUBVIA MAKES NO, AND DISCLAIMS ALL, WARRANTIES, EXPRESS OR IMPLIED, (INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY) OR REPRESENTATIONS REGARDING THE QUALITY, SUITABILITY, RELIABILITY, TIMELINESS OR ACCURACY OF THE SERVICES REQUESTED OR SERVICES PROVIDED BY, OR THE COMMUNICATIONS OF OR BETWEEN, USERS IDENTIFIED THROUGH THE PLATFORM, WHETHER IN PUBLIC OR PRIVATE, VIA ON- OR OFF-LINE INTERACTIONS, OR OTHERWISE WHATSOEVER.

Subvia, as permitted by applicable laws, may obtain reports regarding Members, which may include a history of criminal convictions or sex offender registration, and reserves the right to limit, block, suspend, deactivate or cancel a Member’s Account based on the results of such a report in its sole discretion. As a Member, you agree and authorize Subvia to use your personal information, including your full name and date of birth, to conduct background checks, including obtaining the foregoing and/or related reports, relating to any User.

ACCOUNT REGISTRATION ACCURACY OF INFORMATION

Users may access the Platform without registering for an Account. To access and participate in certain features of the Platform, you will need to create a password-protected Account and complete the Account Registration process. In order to register for an Account, you may be required to fill out a registration form, provide credit card information, agree to the Stripe Services Agreement (defined below), fill out payment information, fill out questionnaires, and/or any other action required by Subvia from time to time in its sole discretion. You agree to provide accurate, current and complete information during any Account Registration or request submission process and at all other times when you access or use the Platform, and to update information as appropriate. You are solely responsible for safeguarding your Subvia password(s). You are solely responsible for all activity that occurs on your Account, and you will immediately notify Subvia, in writing, of any unauthorized or improper use. SUBVIA IS NOT LIABLE FOR ANY LOSSES BY ANY PARTY CAUSED BY AN UNAUTHORIZED OR IMPROPER USE OF YOUR ACCOUNT. Notwithstanding the foregoing, you may be liable for any losses sustained by Subvia or others due to such unauthorized or improper use. Your Account is nontransferable except with Subvia’s written permission in accordance with Subvia’s policies and procedures.

GEOGRAPHIC RESTRICTIONS

The Platform is based in the United States and access and use is presently provided for only Users located in the United States. Notwithstanding the previous sentence, Subvia may decide to offer the Platform outside the United States, and until it decides to do so, you agree that you will not access or use the Platform outside of the United States. You acknowledge that you may not be able to access all or some of the Platform outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Platform from outside the United States, you are responsible for compliance with any and all associated local laws.

USER BACKGROUND CHECKS

Users may be subject to a review process before they can register for an Account and/or during their use of the Platform, which may include, but is not limited to, identity verification, right to work checks and criminal background checks, using third party services as appropriate (“Background Checks”). Although Subvia may perform Background Checks, Subvia has no obligation to do so, and in any event, cannot confirm that each User is who they claim to be, and Subvia 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 do not know. Subvia will not be liable for any false or misleading statements made by Users of the Platform.

NEITHER SUBVIA, NOR ANY OF ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “AFFILIATES”) IS RESPONSIBLE OR LIABLE FOR THE CONDUCT, ACTS OR OMISSIONS, WHETHER ON-LINE OR OFF-LINE, OF ANY USER OF THE PLATFORM AND, TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE SUBVIA 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 PLATFORM.

USER REPRESENTATIONS AND WARRANTIES

           All Users represent and warrant that:

·       You are at least 18 years of age or older and are otherwise capable of entering into binding contracts;

·       You have the right, authority and capacity to enter into these Terms of Use and to abide by the terms and conditions set forth herein, and that you will so abide;

·       You have read, understand and agree to be bound by these Terms of Use, our Privacy Policy and all other terms and policies adopted by Subvia from time to time as provided herein;

·       You will respect the privacy (including without limitation private, family and home life), property and data protection rights of other Users without the prior written consent of any relevant User;

·       You will timely fulfill the commitments you make to other Users, communicate clearly and promptly through any chat thread, be present and/or available at the time(s) or under the circumstance(s) you solely agree upon with your Seller Member or Buyer Member, as the case may be, and only utilize the third party payment service provider specified or approved by Subvia to make or receive payment for Services coordinated through the Platform;

·       You will act professionally, ethically and responsibly in your interactions with other Users;

·       You will use your real name or business name and an up-to-date photo on your profile;

·       When using or accessing the Platform, you will act in accordance with all applicable local, state, federal, provincial, national or international law or custom and always in the utmost good faith;

·       You will not use the Platform for the purchase or delivery of alcohol, or any controlled or illegal substances or services;

·       If you use or access the Platform on behalf of a company or other organization, you have authority to act on behalf of that entity and to bind that entity to these Terms of Use; and

·       Except as fully and promptly disclosed, in writing, in advance to Subvia, you do not have any motivation, status or interest regarding the use of the Platform that Subvia may reasonably wish to know about other than to potentially transact business as contemplated by Subvia regarding its Platform, including without limitation, if you are using or will or intend to use the Platform for any journalistic, academic, investigative or unlawful purpose.

Seller Members additionally represent and warrant that:

·       When using the Platform, you are operating as an independent contractor and 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 Buyer Members through the Platform, and maintain an independent clientele;

·       You have the unrestricted right to work in each jurisdiction in which you will be performing Services;

·       You have obtained and maintain all current and valid business licenses, permits, registrations or business tax registrations required by each jurisdiction in which you perform Services and before offering and undertaking Services;

·       You have obtained all insurance required to operate your business and provide your Services;

·       You will honor your commitments to other Users on the Platform, including by responding to invitations promptly, timely performing the Services as agreed upon with the applicable Buyer Member; and providing timely, high-quality Services; and

·       You will only offer and provide Services for which you have the necessary skills and expertise, and provide those Services safely and in accordance with all applicable laws.

CONTRACT BETWEEN SELLER MEMBERS AND BUYER MEMBERS

You acknowledge and agree that a legally binding contract with another Member (a Service Agreement) is formed when you and that Member agree on the terms of a Service. The terms of a Service Agreement include the terms accepted by both a Seller Member and a Buyer Member to the extent such terms do not conflict with these Terms of Use and do not expand Subvia’s obligations or restrict Subvia’s rights under these Terms of Use. SUBVIA IS AND SHALL NOT BE A PARTY TO ANY SERVICE AGREEMENT, and the formation of a Service Agreement shall not create an employment or other service relationship between Subvia and any Member. Users do not have authority to enter into written or oral, whether implied or express, contracts on behalf of Subvia. SUBVIA DISCLAIMS ANY AGENCY OR AUTHORITY TO ACT ON BEHALF OF ANY USER, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ACTS OR OMISSIONS OF USERS WITHIN OR OUTSIDE OF THE PLATFORM.

NON-EXCLUSIVE, REVOCABLE AND LIMITED LICENSE TO USE THE PLATFORM

Subject to your strict compliance with these Terms of Use and Subvia’s policies, Subvia grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to use the Platform and reproduce and display Collective Content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to, use of and participation in the Platform. You shall not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms of Use. The Platform and Collective Content are provided to you AS IS and without any warranties of any kind. If you download or print a copy of Collective Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Subvia or its licensors, except for the limited licenses and rights expressly granted in these Terms of Use. Subvia reserves the right to revoke the licenses granted in this section at any time in its sole discretion.  

USER CONTENT

Subvia may, in its sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Platform, you hereby grant to Subvia a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote, market or advertise the Platform or Services, or for any other purpose in our sole discretion, except that the contents of private messaging through the Platform will not be used by Subvia in public advertising. In the interest of clarity, the license granted to Subvia shall survive termination of the Platform or your Account. Subvia does not claim ownership rights in your User Content and nothing in these Terms of Use will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published or transmitted on or through the Platform by you.

You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to Subvia the rights in such User Content, as contemplated under these Terms; and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Subvia’s use of your User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. While it has no obligation to do so, you agree that Subvia may proofread, summarize or otherwise edit and/or withdraw your User Content, and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties in these Terms of Use.  You shall immediately notify Subvia, in writing, of any inconsistency or inaccuracy relating to User Content upon the discovery thereof.

Subvia reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms of Use or otherwise harmful to the Platform or Users, or for any other reason.

LICENSING AND PERMITS

Seller Members are solely responsible for identifying and obtaining any required licenses, permits and registrations before offering Services and providing Services. Indeed, certain types of Services may be prohibited altogether in some locations, and it is the responsibility of Seller Members to avoid such prohibited Services. It is the responsibility of Buyer Members to conduct appropriate due diligence regarding such prior to entering into a Service Agreement. Penalties for failure to obtain required licenses, permits and registrations and engaging in prohibited Services may include fines or other legal enforcement, and will result in termination of your Account. If you have questions about how federal, state, provincial, territorial and local laws apply to your Services, you should first seek appropriate legal guidance.

Because Subvia does not supervise, scope, direct, control or monitor the Services of Seller Members or the performance of any Services, Buyer Members are responsible for determining for themselves whether a Seller Members is qualified to perform any Services at issue. Buyer Members are encouraged to consult federal, state, provincial, territorial or local requirements to determine whether certain Services are required to be performed by a licensed or otherwise registered professional. Buyer Members are also encouraged to discuss with their Seller Member any specific hazards, obstacles or impediments regarding the Services location (both visible and concealed) that may impact the performance of the Task.

INSURANCE

Seller Members are solely responsible for obtaining, and shall obtain, all insurance required to operate their business and provide the Services. Seller Members shall cause Subvia to be added as an additional named insured on all insurance policies (i.e., including general liability) with commercially reasonable coverage.

PROHIBITIONS

As a User, you may not:

·       Use another User’s Account, misrepresent yourself or the Services offered through the Platform, misrepresent your identity or qualifications, misrepresent a project or other information in a quote request, or post Content in any inappropriate or misleading manner, category or area on the Platform;

·       Use any automated system, including but not limited to robots, spiders, offline readers or scrapers to access the Platform for any purpose without Subvia’s prior written approval; provided, however, that the operators of public search engines may use spiders or robots to copy materials from the Platform for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such material (Subvia reserves the right to revoke these exceptions either generally or in specific cases);

·       In any manual or automated manner copy copyrighted text or otherwise misuse or misappropriate Platform information or Content, including but not limited to, for use on a mirrored, competitive or third-party site;

·       Transmit more request messages through the Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;

·       Take any action that (a) may unreasonably encumber the Platform’s infrastructure; (b) interferes or attempts to interfere with the proper working of the Platform or any third-party participation; (c) bypasses measures that are used to prevent or restrict access to the Platform; (d) circumvents, disables or otherwise interferes with security features of the Platform; (e) distributes viruses or any other technologies that may harm Subvia or Users; (f) uses the Platform in a way that violates any copyrights, trade secrets or other rights of any third party, including privacy or publicity rights; or (g)circumvents or manipulates the Fee (defined herein) structure, billing, or Fees owed;

·       As a Seller Member, use the Platform in any manner that circumvents your obligation, if any, to pay Subvia for access to Services coordinated through the Platform;

·       As a Seller Member, notwithstanding anything to the contrary contained in these Terms of Use, “sell” any personally identifiable data (as defined by the California Consumer Privacy Act), including but not limited to information related to Buyer Members;

·       Collect, harvest or publish any personally identifiable data, including but not limited to names or other Account information, from the Platform, or use the communication systems provided by the Platform for any reason not explicitly authorized by these Terms of Use, including commercial solicitation purposes;

·       Recruit, solicit or contact in any form Seller Members or Buyer Members for employment or any other use not specifically intended by the Platform;

·       Take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful Content to or through the Platform, including Content that is harassing, hateful, illegal, profane, obscene, pornographic, offensive, defamatory, threatening or discriminatory, or that advocates, promotes or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law;

·       Violate any key Subvia policies governing your use of the Platform and our interactions with you and/or third parties;

·       Advertise or solicit Services not related to or appropriate for the Platform, including but not limited to any Service that (a) is not in supported categories or provides only products; (b) provides directories or referrals; (c) offers lending; (d) offers rental space; (e) promotes events (such as a party or professional convention); (f) competes with the business of Subvia; (g) is based outside the United States while the Platform is only being offered in the United States; (h) promotes or offers Ponzi schemes, junk mail, spam, chain letters, pyramid schemes, multi-level marketing businesses, affiliate marketing or unsolicited commercial content, discount cards, credit counseling, online surveys or contests, raffles, prizes, bonuses, games of chance or giveaways; or (i) is not reasonably available to a Buyer Member or other individual in that Buyer Member or individual’s location;

·       Submit User Content that damages the experience of any User, including but not limited to (a) requests to download non-Subvia mobile applications and/or links that direct the User to mirrored websites where the User must enter information that is redundant with what has already been entered on Subvia, (b) offers to purchase a Service or any other service outside of Subvia, or (c) using a profile page or user name to promote Services not offered on or through the Platform;

·       Take any action that may undermine the efficacy or accuracy of reviews or ratings systems;

·       Fail to perform Services purchased from you as promised, unless the Buyer Member fails to materially meet the terms of the Service Agreement or refuses to pay, or a clear typographical error is made, or you cannot authenticate the Buyer Members or other individual’s identity;

·       Engage in fraudulent conduct, including but not limited to offering to make money transfers with intent to request a refund of any portion of the payment or soliciting Users to mail cash or use other payment methods prohibited by Subvia;

·       Sign up for, negotiate a price for, use or otherwise solicit a Service with no intention of following through with your use of or payment for the Service;

·       Agree to purchase a Service when you do not meet a Seller Member’s requirements;

·       Undertake any activity or engage in any conduct that is inconsistent with the business or purpose of the Platform; and

·       Attempt to indirectly undertake any of the foregoing.

FEES AND TAXES

Fees. In connection with the use of the Platform, Subvia may charge Users certain fees (“Subvia Fees” or “Fees”), including but not limited to, subscription fees and fees for additional products and services available on the Platform. Fees for additional products or services, including ongoing products or services, will be presented to you before you use such products or services. In order to create an Account, you must have at least one valid payment method stored on file on the Platform. Except as otherwise described herein, all Fees paid are final and non-refundable.

For ordinary charges owed by Users, Subvia will first attempt to charge the default payment method. In the event that Subvia is unable to charge that payment method for any reason, including but not limited to payment method cancellation, a payment method being out of date, or payment method details being incorrect, you agree that Subvia may charge any other payment method associated with your Account. If your payment details change, your card provider may provide us with updated card details. We may use these new details in order to help prevent any interruption to the Services. If Subvia is unable to charge the default payment method, Subvia will attempt to charge any other payment methods associated with your Account in the order in which they were most recently provided, used or updated on the Platform, charging the most recently provided, used or updated valid payment method first.

Subvia may also charge penalty Fees for fraud, misconduct or other violations of these Terms of Use, as determined in our sole discretion.

You agree to pay all applicable Fees or charges based on the Fee and billing terms then in effect, regardless of whether you have an active Account. Charges shall be made to the payment method designated at the time you accrue a Fee. If you do not pay on time or if Subvia cannot charge a payment method for any reason, Subvia reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. If any Fee is not paid in a timely manner, or we are unable to process your transaction using the payment method provided, we reserve the right to terminate or suspend your Account.

You explicitly agree that all communication in relation to delinquent accounts or Fees due will be made by electronic mail or by phone. 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. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. You agree to keep your contact information current, including but not limited to email address and phone number. Such communication may be made by Subvia or by anyone on its behalf, including but not limited to a third-party collection agent. If you cancel your Account at any time, you will not receive any refund. If you have a balance due on any Account, you agree that Subvia may charge such unpaid Fees to any payment method or otherwise bill you for such unpaid Fees.

Taxes. Payments required by these Terms of Use are exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes, excise, business, service and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”). Certain jurisdictions, however, may require us to collect Taxes from you in connection with your use of the Platform, and you shall be responsible for and bear Taxes associated with your use of the Platform. Charges are inclusive of applicable Taxes where required by law. You hereby confirm that Subvia can determine your appropriate jurisdiction for tax purposes as it deems appropriate or as required by law, and you agree to pay taxes to Subvia when Subvia includes a charge for taxes on any invoice. You also understand and agree that you are solely responsible for determining your own tax reporting and sales and use tax collection requirements in consultation with your own tax advisers, and that we cannot and do not offer specific tax advice to either Seller Members or Buyer Members.

TRACKING COMMUNICATIONS

In order to ensure appropriate charging of Fees and to enforce these Terms of Use, Subvia may track the occurrence of communications between Buyer Members and Seller Members that occur off of the Platform via email, phone call, SMS text message, third-party websites or any other means, whether initiated by a Buyer Member or Seller Member. In order to track the occurrence of such communications, Subvia may obscure Seller Member contact information in a Seller Member profile, replace Seller Member contact information in a Seller Member profile with a different piece of contact information that will forward to the Seller Member, or take any other step reasonably calculated to track the occurrence of such communications. Except as explicitly stated herein, we will not record or review the content of any communications that do not come into contact with the Subvia Platform, unless we first obtain your permission.

If you send text messages with a Buyer Member or Seller Member using the telephone number for that Member available on the Platform, we may use a third-party service provider to track these text messages. We track these text messages for fraud prevention, to ensure appropriate charging of Fees, to enforce these Terms, and for quality and training purposes. As part of this process, Subvia and its service provider will receive in real time and store data about your text message, including the date and time of the text message, your phone number and the content of the text message.

MARKETPLACE PAYMENTS

The Subvia platform may facilitate payments between Buyer Members and Seller Members (“Marketplace Payments”) through our payment service provider and processor, Stripe, Inc., 510 Townsend Street, San Francisco, CA 94103, USA, (“Stripe”), but Subvia is not a party to any such Marketplace Payments and does not handle funds on behalf of its Members. Members who pay or receive Marketplace Payments through the Platform must agree to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement (collectively, the “Stripe Services Agreement”), the terms of which are incorporated herein by reference. As a Member, by agreeing to these Terms of Use or continuing to operate as a Member on the Platform, you agree to be bound by the Stripe Services Agreement, as modified by Stripe from time to time. As a condition of receiving payment processing services through Stripe, you agree to provide Subvia with accurate and complete information about you and your business, and you authorize Subvia to share this information and transaction information related to your use of the payment processing services provided by Stripe. Each Member represents and acknowledges that they have reviewed and agreed to the Stripe Services Agreement. Each Member represents and acknowledges that Subvia is not a party to the Stripe Services Agreement and that you, Stripe and any other parties listed in the Stripe Services Agreement are the parties to the Stripe Services Agreement and that Subvia has no obligations, responsibility or liability to any Member or other party under the Stripe Services Agreement. Payment for Services through the Platform is made directly from the Buyer Member to the Seller Member via Stripe, and not by Subvia. Subvia is not obligated to compensate any Seller Member for a Buyer Member’s failure to pay for Services.

As a Buyer Member making a Marketplace Payment through Stripe, you agree to pay all amounts you owe when due using your preferred payment method. You further authorize Stripe to charge your preferred payment method for amounts you owe when they are due, whether they are recurring or one-time payments. You agree to keep all payment information you provide us up-to-date, accurate and complete will not share your payment card, bank account or other financial information with any other Member. Subvia may take steps to secure all payment methods and other personal financial information, but expressly disclaims any liability to you, and you agree to hold us harmless for any damages you may suffer as a result of the disclosure of your personal financial information to any unintended recipients.

Subvia may enable you to make Marketplace Payments using credit, debit or prepaid cards, by linking your bank account, or by any other payment method we support. We reserve the right to cancel your ability to make payments with one or more of the payment methods you have authorized in our sole and absolute discretion.

If you choose your bank account as your Marketplace Payment method, you authorize Stripe to make Automated Clearing House (“ACH”) withdrawals from your bank account, and to make any inquiries we consider necessary to validate any dispute involving payments you make to us or to a Member, which may include ordering a credit report and performing other credit checks or verifying the information you provide us against third-party databases. You authorize Subvia or its provider to initiate one or more ACH debit entries (withdrawals) or the creation of an equivalent bank draft for the specified amount(s) from your bank account, and you authorize the financial institutions that holds your bank account to deduct such payments. You also authorize the bank that holds your bank account to deduct any such payments in the amounts and frequency designated in your Account.

You agree to pay any ACH fees or fines you or we incur associated with transactions you authorize. This return fee may vary based on the state in which you are located. The return fee may be added to your payment amount and debited from your bank account if we resubmit an ACH debit due to insufficient funds. We may initiate a collection process or legal action to collect any money owed to us. You agree to pay all our costs for such action, including any reasonable attorneys’ fees and court costs. Federal law limits your liability for any fraudulent, erroneous or unauthorized transactions from your bank account based on how quickly you report it to your financial institution. You must report any fraudulent, erroneous or unauthorized transactions to your bank no more than 60 days after the disputed transaction appeared on your bank account statement. Please contact your bank for more information about the policies and procedures that apply unauthorized transactions and the limits on your liability.

Marketplace Payment Disputes. All requests for Marketplace Payment chargebacks, errors, claims, refunds and disputes (“Payment Disputes”) will be subject to review by Subvia in accordance with the rules applicable to the payment method you used to make the Marketplace Payment and will be in Subvia’s absolute sole discretion. Subvia is not liable to you under any circumstances for Payment Disputes we are unable to resolve in your favor. We will normally process your valid written Payment Dispute request within thirty (30) days after we receive it, unless a shorter period is required by law. You may file a Payment Dispute by emailing it to Subvia support at support@subvia.com. If you close or deactivate your Account before we adjudicate your Payment Dispute, we will not be able to issue you any amounts you are owed. We will attempt to pay you any Payment Disputed amounts you are owed using the method with which you made the disputed payment, but we cannot guarantee that we will be able to do so if your payment method information is inaccurate or incomplete, or has been cancelled.

If your actions result, or are likely to result, in a Payment Dispute, a violation of these Terms of Use or create other risks to Subvia or our payment processing partners, or if we determine that your Account has been used to engage in deceptive, fraudulent or illegal activity, then we may permanently withhold any amounts owed to you in our sole discretion. If you have a past due balance due on any Account, or for any additional amounts that we determine you owe us, we may, without limiting any other rights or remedies:  (a) charge one or more of your payment methods; (b) offset any amounts you owe us against amounts you may be owed; (c) invoice you for amounts due to us, which such amounts will be due upon receipt; (d) reverse or block any credits to your bank account; or (e) collect payment from you by any other lawful means.

If you fail to make Marketplace Payments you owe when due, or if Subvia is unable to charge one of your payment methods for any reason, Subvia reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or overdue payments will be made by electronic mail or by phone. Such communication may be made by Subvia or by anyone on its behalf, including but not limited to a third-party collections agent.

Subvia may, from time to time, place a hold on any of your payment methods. Any such hold will be temporary and will not mature into a charge on your payment method. Payment method holds are intended to prevent failed payments.

DISPUTES BETWEEN OR AMONG USERS

Subvia values our Members, and we understand that occasionally disputes may arise between or among them. Our goal is to provide tools to help Users resolve disputes independently. In the rare event a dispute regarding an interaction related to the Platform cannot be resolved independently, you agree, at Subvia’s request, to participate in good faith in a neutral mediation conducted by Subvia or a neutral third-party mediator selected by Subvia. Notwithstanding the foregoing, you acknowledge and agree that Subvia is under no obligation to become involved in or assist regarding the resolution of any dispute between or among Users or any third party.

INTELLECTUAL PROPERTY RIGHTS

Users acknowledge and agree that Subvia Content is protected by copyright, trademark and other laws of the United States, foreign countries and international conventions. Except as expressly provided in these Terms of Use, Subvia and its licensors exclusively own all right, title and interest in and to the Platform and Subvia Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of Subvia used herein are trademarks or registered trademarks of Subvia. Except as expressly provided relating to Subvia’s grant of a revocable limited license under these Terms of Use, nothing herein shall be construed as granting any right to or interest in Subvia’s Platform or intellectual property whatsoever.

COPYRIGHT POLICY

Users agree to and shall respect and abide by all applicable copyright law. Subvia will terminate the Account of any User who infringes or is believed to be infringing the rights of any copyright holders.

CONFIDENTIAL INFORMATION

You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Subvia and agree that you will not, for the lifetime of your Account plus the period of 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 your use of the Platform in accordance with these Terms of Use. If relevant, you may disclose Confidential Information to your authorized employees and agents, provided that such are also bound to maintain the confidentiality of Confidential Information. You shall use the utmost best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall promptly notify Subvia, 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 Subvia promptly upon deactivation of your Account or termination of these Terms of Use any reason whatsoever.

The term “Confidential Information” shall mean any and all of Subvia’s trade secrets, confidential and proprietary information, and all other information and data of Subvia 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 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 Subvia or Subvia’s business, operations or properties, including information about Subvia’s staff, Users or partners, or other business information disclosed or obtained directly or indirectly in writing, orally or by drawings or observation.

USER REVIEWS AND COMMENTS

Any reviews or comments you provide to Subvia in connection with the Platform shall be considered non-confidential and nonproprietary, and Subvia shall have a royalty-free, worldwide, perpetual, irrevocable and transferable right to use, distribute, copy, display, and publish such reviews or comments. Subvia shall be free to use such information on an unrestricted basis and such information shall not be returned to you.

NO ENDORSEMENT OR AGENCY

Subvia does not endorse any Member, User or any Services, and Subvia is not a party to any agreement(s) between or among Users, Members or third parties. No agency, partnership, joint venture, or employment is created as a result of these Terms of Use or any User’s or Member’s use of any part of the Platform, including but not limited to any scheduling or other services. Neither Subvia, nor any Members or Users of the Platform, may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other. Subvia may undertake additional checks and processes designed to help verify the identities or backgrounds of Users, but it does not make any representations about, confirm or endorse any User or their purported identity or background, regardless of the specific Subvia services they are using or any involvement by Subvia personnel in coordinating those services.

Any reference on the Platform to a User being licensed or credentialed in some manner, or “badged,” “best of,” “top” “background checked” (or similar self or other promotion) designations indicates only that the User has completed a relevant account process or met a User’s subjective review standards, and does not represent an endorsement by Subvia. Any such description is neither a certification, nor a guarantee, by Subvia they or their Services are licensed, insured, trustworthy, safe or suitable. Instead, as an example, any such description is intended solely a basis for a Buyer User to initiate its evaluation and selection of a Seller User through the Platform. You alone are encouraged to and must solely exercise responsibility, due diligence and care when deciding whether to have any interaction with any other User. While Subvia offers a non-exhaustive list of recommended safety tips to consider when hiring a Seller Member, Subvia assumes no responsibility for any damage or harm resulting from for your interactions with other Users.  

The Collective Content may contain links to third-party websites, offers or other events/activities not owned or controlled by Subvia. Subvia does not endorse or assume any responsibility for any such links, and if you access them, you do so at your own risk.

By using the Platform, you understand and agree that ANY LEGAL REMEDY OR LIABILITY THAT YOU SEEK TO OBTAIN FOR ACTIONS OR OMISSIONS OF OTHER USERS OR THIRD PARTIES WILL BE LIMITED TO A CLAIM AGAINST THOSE PARTICULAR USERS OR THIRD PARTIES and shall not include the assertion of any legal remedy or liability against Subvia with respect to such actions or omissions.

SANCTIONS FOR VIOLATIONS OF THESE TERMS OF USE

Without limiting any other rights reserved herein, Subvia may, in its sole discretion, take any action permitted by law for any violation of these Terms of Use, including but not limited to removing User Content you posted, limiting your Account access, requiring you to forfeit certain funds or paid Fees, assessing monetary penalties or costs, terminating your Account, notifying other Users of the termination of your Account and/or the violation of these Terms of Use, decreasing your status or search rank, canceling quotes or postings, blocking access, investigating you, and/or cooperating with law enforcement agencies in an independent investigation or prosecution.

ACCOUNT SUSPENSION OR TERMINATION

Subvia may, in its discretion, with or without cause, with or without prior notice and at any time, decide to limit, block, suspend, deactivate or cancel your Account (and terminate all associated license rights to our Platform) in whole or in part. If Subvia does so, any or all of the following can occur with or without prior notice or explanation to you:  (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform or your User Content, or receive assistance from Subvia support teams; (b) if appropriate in Subvia’s sole discretion, we may communicate to other Users that your Account has been terminated, blocked, suspended, deactivated, cancelled or otherwise penalized in any way, and why this action has been taken; and (c) you will not be entitled to any compensation for Platform services or Services cancelled or delayed as a result of such an Account action.

You may, in your discretion, with or without cause, with or without prior notice and at any time, discontinue or cancel your use of the Platform and/or terminate your Account. If you terminate your Account, Subvia shall have no obligation to delete or return to you any Content you have posted to the Platform, including, but not limited to, any reviews.

MOBILE APP UPDATES AND UPGRADES

By installing any App(s), you acknowledge and consent to the installation not only of the App(s), but also of any updates or upgrades that may thereafter be released through the Platform. The App (including any updates or upgrades) may (i) cause your device to automatically communicate with Subvia’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.      

CHANGES TO THE PLATFORM

Subvia reserves the right, in its sole discretion, to review, improve, modify or discontinue, temporarily or permanently, the Platform or any Content or information through the Platform at any time, effective with or without prior notice and without any liability to Subvia. Subvia will endeavor to notify you of material changes to the Platform, but will not be liable for any failure to do so. If any future changes to the Platform are unacceptable to you or cause you to no longer be in compliance with these Terms of Use, you must deactivate your Account, and immediately stop using, the Platform. YOUR CONTINUED USE OF THE PLATFORM FOLLOWING ANY CHANGES TO THE PLATFORM CONSTITUTES YOUR COMPLETE AND IRREVOCABLE ACCEPTANCE OF ANY AND ALL SUCH CHANGES, except where prohibited by any laws or regulations in your jurisdiction. Subvia may also impose limits on certain features or restrict your access to part or all of the Platform without notice or liability.

ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

This Section is intended to be interpreted broadly and governs any and all disputes between Subvia and you, including but not limited to, claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms of Use or any prior agreement; and claims that may arise, including those that arise after the termination of these Terms of Use (collectively, “Disputes”). You agree to resolve any and all Disputes with Subvia as follows:

Initial Dispute Resolution and Mediation. Most disputes can be resolved informally without resorting to litigation. You can reach Subvia’s support department at support@subvia.com. You and Subvia agree to use your best efforts to settle any Dispute directly through consultation through the Subvia support department.  In the event a resolution is not reached thereby, you and Subvia agree to engage in a good faith mediation after an exchange of relevant documentary support and before either party initiates a binding arbitration proceeding.

Binding Arbitration as an Exclusive Remedy. If the parties do not reach a resolution of any Dispute within a period of thirty (30) days from the time any informal dispute resolution or mediation is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole and exclusive means to resolve Disputes. Specifically, all claims arising out of or relating to these Terms of Use or previous versions of these Terms of Use, the parties’ relationship with each other, and/or your use of the Platform shall be finally resolved by binding arbitration before a single neutral arbitrator, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Arbitration shall be initiated solely and exclusively in the State of Utah, County of Salt Lake. You and Subvia further hereby agree to submit to the personal jurisdiction of any federal or state court in Salt Lake County, Salt Lake City, Utah in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on any award entered by the arbitrator.

Each party shall bear its own legal fees and costs of arbitration.  Failure by either party to timely pay all arbitrator fees and costs, as and when billed (subject only to good faith setoffs as determined by the arbitrator), shall constitute a material breach of these Terms of Use and shall result in the entry of a default judgment against the breaching party for all claimed relief.

Class Action Waiver. The parties acknowledge that class action claims are not assertable under the Federal Arbitration Act.  The parties further agree that any arbitration (i.e., whether under state or federal law) 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 SUBVIA 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate their Disputes.

Exception:  Litigation of Intellectual Property; Injunctive Relief. Notwithstanding the parties’ decision to resolve all Disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks and trade secrets, but not privacy or publicity rights). Nothing herein shall be construed to limit either parties’ right to seek temporary injunctive relief in a judicial proceeding where justified under applicable rules of procedure, provided that, any such proceeding shall be solely and exclusively asserted in the State of Utah, County of Salt Lake. You and Subvia further hereby agree to submit to the personal jurisdiction of any federal or state court in Salt Lake County, Salt Lake City, Utah.  You hereby waive any and all jurisdictional and venue defenses otherwise available.  Both parties stipulate and agree that the posting of a bond relating thereto shall not be necessary. Either party may also seek relief in a small claims court for Disputes within the scope of that court’s jurisdiction.

JURY WAIVER. YOU AND SUBVIA HEREBY WAIVE THE RIGHT TO A JURY TRIAL FOR ALL CLAIMS AND LAWSUITS BROUGHT BEFORE A COURT OF LAW, AS PERMITTED BY THESE TERMS OF USE.

International Users. In the event that we decide to offer the Platform outside of the United States, or if the Platform is otherwise accessed by international Users, all international Users agree to exclusive United States Jurisdiction for all disputes and agree to all the terms of this Section “ARBITRATION AND CLASS ACTION WAIVER,” Section “GOVERNING LAW,” and all other terms and provisions of these Terms of Use.

GOVERNING LAW

These Terms of Use and the relationship between you and Subvia shall be governed in all respects by the laws of the State of Utah, without regard to its conflict of law provisions.

DISCLAIMERS

YOUR USE OF THE PLATFORM, SERVICES OR COLLECTIVE CONTENT SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT SUBVIA DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO (A) MONITOR OR REVIEW USER CONTENT; OR (B) CONDUCT IDENTITY VERIFICATION, BACKGROUND (INCLUDING CRIMINAL BACKGROUND) OR REGISTERED SEX OFFENDER CHECKS ON ANY USER, INCLUDING BUT NOT LIMITED TO SELLER MEMBERS AND BUYER MEMBERS. THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SUBVIA AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY EXPRESS AND IMPLIED WARRANTIES, INCLUDING OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE, ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM OR THE SERVICES OFFERED ON OR THROUGH THIS PLATFORM, AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE PLATFORM, INCLUDING ALL COLLECTIVE CONTENT. SUBVIA MAKES NO WARRANTY THAT THE PLATFORM OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS. SUBVIA ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. SUBVIA SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE OR COLLECTIVE CONTENT POSTED, TRANSMITTED OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SUBVIA 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 OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, INCLUDING ANY BUYER MEMBERS, SELLER MEMBERS OR OTHER SERVICES RECIPIENTS. YOU UNDERSTAND THAT SUBVIA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM, TO RECOMMEND ANY USER OR TO REVIEW OR VET ANY SERVICES. SUBVIA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH THIRD PARTIES 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 SERVICES. SUBVIA EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND COLLECTIVE CONTENT, YOUR OFFERING OR PROVIDING SERVICES OR REQUESTING OR RECEIVING SERVICES THROUGH THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS SOLELY WITH YOU. NEITHER SUBVIA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR HOSTING THE PLATFORM WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUBVIA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR:  (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) ANY SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE; (E) THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES OR COLLECTIVE CONTENT; (F) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM; OR (G) YOUR OFFERING OR PROVIDING SERVICES OR REQUESTING OR RECEIVING SERVICES THROUGH THE PLATFORM.

SUBJECT TO ALL OTHER DEFENSES AVAILABLE TO SUBVIA REFERENCED IN THESE TERMS OF USE, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF SUBVIA AND ITS AFFILIATES ANDSUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, SERVICES AND/OR COLLECTIVE CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT OR IN CONNECTION WITH ANY SERVICES OR INTERACTIONS WITH ANY OTHER USERS, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO SUBVIA BY YOU HEREUNDER, OR ONE HUNDRED U.S. DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, WHICHEVER IS GREATER.

INDEMNIFICATION AND RELEASE

You acknowledge and hereby agree to release, defend, indemnify and hold Subvia and its Affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including reasonable legal and accounting fees, arising out of or in any way connected with (a) your violation of these Terms of Use; (b) your User Content; (c) your interaction with any Member or User; and (d) the request, receipt, offer or provision of Services by you, including any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with such Services.

Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify and hold Subvia and its Affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses and expenses, including reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms of Use.

If you are a California resident, you agree to and hereby waive California Civil Code Section 1542, which provides:  “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

If you are not a California resident, you agree to and hereby waive your rights under any statute or common law principle similar to California Civil Code Section 1542 that governs your rights in the jurisdiction of your residence.

NOTICES AND CONSENT TO RECEIVE NOTICES ELECTRONICALLY

You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which these Terms of Use refer electronically, including by email or by posting Notices on the Platform. 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 these Terms of Use, all Notices under these Terms of Use shall 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.

TELEPHONE COMMUNICATIONS AND AGREEMENT TO BE CONTACTED

Your Consent to Receive Automated Calls, Texts and Emails. You acknowledge that by voluntarily providing your telephone number(s) and email address(es) on the Platform, you expressly agree to receive calls, text messages and/or emails (which may include prerecorded voice messages, and/or autodialed calls) from Subvia and its Affiliates, or from independent contractors (including Seller Members) related to promotions, your Account, registration, orientation, upcoming or scheduled Services, product alterations, changes and updates, service outages, reminders about incomplete or upcoming Services, follow ups to any push notifications delivered through our mobile application, any transaction with Subvia and/or your relationship with Subvia. 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 Subvia 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 Subvia and its Affiliates, or from independent contractors (including Seller Members) even if you cancel your Account or terminate your relationship with Subvia, excepting only if you opt-out of such communications (see below). You understand that you do not have to agree to receive automated promotional calls, texts and emails as a condition of using the Platform. To opt-out of any or all communications, please see the Opt-Out Instructions below.

Opt-Out Instructions. To opt-out of text messages, text STOP to any text message you receive or email support@subvia.com and specify that you want to opt out of text messages. You acknowledge and agree to accept a final text message confirming your opt-out.

To opt-out of automated calls (not text messages), you must (i) provide Subvia with written notice revoking your consent to receiving automated calls; (ii) 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; and (iii) send this written notice to support@subvia.com.

To opt-out of promotional emails, you must either (i) follow the method to unsubscribe as set forth in the most recent email you received from Subvia, or (ii) provide Subvia with written notice revoking your consent to receiving promotional emails in the same manner as opting out of automated calls set forth above.

It is your sole responsibility to notify Subvia if you no longer want to receive voice calls or text messages. You waive any rights to bring claims for unauthorized or undesired automated calls, text messages or emails 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. Additionally, if you opt-out of any or all communications, Subvia may still contact you to give you Notices, as described above, and to inform you of important information related to your Account and use of the Platform.

Fees and Charges. There is no fee to receive automated telephone calls or text messages from Subvia, our agents, Affiliates and independent contractors (including Seller Members). 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 Subvia and its Affiliates and independent contractors (including Seller Members) are not responsible for such charges.

GENERAL

Force Majeure. Other than payment obligations, neither Subvia nor you shall be liable to the other for any delay or failure in performance under these Terms of Use arising due to a cause beyond its control and without its fault or negligence. Such causes may include fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, pandemics or national disasters.

No Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms of Use, there shall be no third-party beneficiaries to these Terms of Use.

Entire Agreement. These Terms of Use, together with the Privacy Policy and any other legal notices or additional terms and conditions or policies published by Subvia on the Platform, shall constitute the entire agreement between you and Subvia concerning the Platform or Services obtained through the Platform. You acknowledge you have not actually or reasonably relied upon any agreement, promise or covenant not included in these Terms of Use. Except as explicitly stated herein, if any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect.

Waiver. No waiver of any provision of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Subvia’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

Statute of Limitations. The parties acknowledge and agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform or the Services offered therein must be asserted (as evidenced by written notice) within one (1) year after the cause of action accrues. Otherwise, such cause of action shall be deemed waived and permanently barred.

Section Headings. The section headings in these Terms of Use are for convenience only and have no legal or contractual effect.

Contact Information: If you object to or have any questions about these Terms of Use or the Platform, please contact us by sending an email to support@subvia.com, or by writing to Subvia, Inc., 1557 W Innovation Way, 5th Floor, Lehi, UT 84043.  Subvia invites feedback from its Users and will consider proposed modifications to its Terms of Use as appropriate to enhance and benefit the interests of all participating in the use of its Platform and/or relating to its coordination of Services.