iCi Client's Terms and Conditions
The Client must accept the following general terms and conditions for using iCi App Platform when registering for iCi App.
1. ACCEPTANCE OF THE TERMS AND CONDITIONS.
a. Binding agreement, Description.
iCi Talent, Inc. (“iCi App”, “we”, “us”, or “our”) provides and makes available its website located at www.iCiApp.com (the “Site”) along with its iCi App mobile application (the “App,” “iCi App Platform”) together with the Site, the “Service”. Client’s uses of the Service are subject to the terms and conditions contained in this Agreement (“Agreement”). Please read this Agreement carefully. By accessing, browsing or otherwise using the Service, you acknowledge that you have read, understood, and agree to be bound by this Agreement.
PLEASE NOTE: THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR CONTINUE ACCESS TO THE iCi APP PLATFORM.
b. Changes to this Agreement
The Service is not for persons under the age of 18 or for any users previously suspended or removed from the service by iCi App. IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By visiting the iCi App Platform or Services, or accepting this Agreement, you represent and warrant to iCi App that You: (i) are 18 years of age or older, and that you have the right, authority and capacity to agree to and abide by the Agreement; (ii) will use the App in a manner consistent with any and all applicable laws and regulations; and (iii) have not been convicted of any felony and are not required to register as a sex offender with any government authority. If you are using the Service on behalf of a company, entity, or organization (collectively “Organization”), then you represent and warrant that you (i) are an authorized representative of that Organization; (ii) have the authority to bind that Organization to this Agreement; and (iii) agree to be bound by this Agreement on behalf of that Organization.
You hereby confirm that in using iCi App you are acting solely for purposes relating to your personal trade, business, craft or profession, whether acting personally, through a corporate entity, or authorized person acting in your name or on your behalf. Client further represents that use of the iCi App and related services is not illegal in the jurisdiction in which Client is based and is complying with all relevant laws.
For the purposes of these Terms and Conditions, unless otherwise stated, the terms below will be defined as follows:
iCi Talent, Inc: iCi Talent, Inc., its parents, subsidiaries, affiliates, assignees, authorized agents, and 3rd parties performing services on behalf of iCi Talent, Inc;
iCi App: Web applications of iCi Talent, Inc., including but not limited mobile applications and company website;
Client: A fashion or entertainment professional (individual or organization) using iCi App to procure individual to perform services in the fashion or entertainment industry;
Talent: An individual using iCi App to find employment opportunities with Clients in the fashion or entertainment industry.
2. THE SERVICE.
The iCi App Platform is a web-based communications platform which enables the professionals of fashion and/or entertainment business (“Clients”) to search for and cast models or talents (“Talent”) for gigs or specific assignments. A gig booked through the Service is an “Project” (“Project”). Clients and Talents together are hereinafter referred to as “Users.” If you agree on the terms of a Project with another User, you and such other User form a Service Agreement (“Service Contract”) directly between the two of you as set forth in more detail in this Section 2 below and Section 7 of this Agreement.
TALENT ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF iCi APP. iCi APP DOES NOT PERFORM PROJECTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM PROJECTS. USERS HEREBY ACKNOWLEDGE THAT iCi APP DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A TALENT’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE PROJECT IN ANY MANNER.
The iCi App Platform only enables connections between Users for the fulfillment of Projects. iCi App is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Projects, Talent, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. iCi App makes no representations about the suitability, reliability, timeliness, or accuracy of the Projects requested and services provided by Users identified through the iCi App Platform whether in public, private, or offline interactions.
Clients may browse photographic portfolio of Talent through the Service. Clients may also use the system of filters to find the best Talent for their Project. If a Client wants to hire the Talent, then the Client may do so following the booking process offered by the Service and if the Talent agrees to do the Project, Clients will pay the Talent through the Service.
Talent may book Project through the Service once requested by a Client. The Talent will be paid for a Project through the Service upon completion of the Project. The Talent also submit their own profiles and pictures to the Service.
d. Contractors. iCi App
is not a contractor for the services agreed between Users. Only Users are responsible for the performance and/or fulfilment of agreements they entered with one another; thus iCi App shall not be liable for breaches of such agreements. iCi App shall not be held liable if Users are unable to contact one another over the Platform regarding such agreements.
e. Mobile services.
The App is accessible via a mobile phone (collectively, “Mobile Services”). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the App and the related Mobile Services must be strictly in accordance with this Agreement.
3. THE REGISTRATION.
a. Log-in credentials.
In order to utilize the Service, you must download the App and register an account with the Service (an “Account”). In order to create an Account, you must provide your name, email address, and/or social media account information and certain documentation that helps to verify your identity.
b. Account security.
You are responsible for maintaining the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify iCi App immediately at support@iCiapp.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. iCi App will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying iCi App of such unauthorized use or loss of your credentials. Separate log-in credentials may be required by the owners and/or operators of External Sites (as defined below in Section 24 of this Agreement) to access such External Sites.
c. Accuracy of information.
In creating an Account, you agree to provide true, accurate, current, and complete information as requested in any registration forms required by iCi App. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this Agreement, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations, including, but not limited to, trademark rights, copyrights, or the rights of privacy or publicity. If messages sent to an e-mail address provided by you are returned as undeliverable, then iCi App reserves the right to terminate your Account immediately with or without notice to you and without any liability to you or any third party. We reserve the right to also be able to read your messages without your permission or foreknowledge.
By completing the registration process you are indicating that you agree to be bound by all of the terms in this Agreement. Please print and keep a copy of this Agreement for your records. By accessing the App, or using any Services, you consent to receive this Agreement electronically. We reserve the right to modify this Agreement at any time. Such modified Agreement will become effective upon our posting such Agreement to the App. Your continued use of our Service after such a modification has been posted shall be deemed to constitute acceptance by you of any such modified Agreement. It is your obligation to review the Agreement and to become aware of any modifications.
4. CONSENT TO ELECTRONIC COMMUNICATION.
5. RIGHT TO USE.
Your right to use the Service is subject to any limitations, conditions and restrictions established by us from time to time, in our sole discretion. We may alter, suspend or discontinue any aspect of the Service at any time, including the availability of any Service feature, database or content. We may also impose limits on certain features and aspects of the Service or restrict your access to parts or all of the Service without notice or liability and for any reason.
6. CODE OF CONDUCT.
You agree to use the Service in accordance with the following Code of Conduct:
- You will keep all information provided to you through the Service as private and confidential and will not give such information to anyone without the permission of the person who provided it to you.
- You will not use the Service to engage in any form of harassment or offensive behavior, including but not limited to the posting of communications, pictures or recordings which contain libelous, slanderous, abusive or defamatory statements, or racist, pornographic, obscene, or otherwise offensive language. You will not forward chain letters through the Service. You will not use the Service to infringe the privacy rights, property rights, or any other rights of any person. You will not post messages, pictures or recordings or use the Service in any way that violates, plagiarizes or infringes upon the rights of any third party, including but not limited to any copyright or trade-mark law, privacy or other personal or proprietary rights, or is fraudulent or otherwise unlawful or violates any law.
- You will not use the Service to distribute, promote or otherwise publish any material containing any solicitation for funds, advertising or solicitation for goods or services. Parties responsible for the distribution, promotion or publication of any material containing any solicitation for funds, advertising or solicitation for goods or services agree to re-pay iCi App any and all expenses arising from investigation and prosecution of such activities.
- You will not use the Service to distribute or upload any virus, or malicious software of any type, or do anything else that might cause harm to the Service, the App, the Site, its systems, or any other members' systems in any way.
- You will not post or transmit in any manner any contact information including but not limited to email addresses, "instant messenger" nicknames or contact information, telephone numbers, postal addresses, URLs, and full names through publicly posted information on the App, and through its Services.
- You will not cause the Service to be accessed through any automated or robotic means, including but not limited to the rapid access of the site as in a denial-of-service attack. Such restriction shall not apply to legitimate search engine activity that does not place an unreasonable burden on the Service.
- You will not use a third-party application such as a mobile smart phone application, social media or other Web page widget, or any other such mobile, social media, Web, or desktop application to access the Service, except where such application is either provided by us or endorsed by us. Such restriction shall not apply to a browser application which merely displays the pages of the Service in their entirety without modification or reformulation of content.
7. CONTRACTS BETWEEN CLIENT AND TALENT.
Users of iCi App contract for Projects directly with other Users. You acknowledge and agree that Service Contract is formed when you agree on the terms of a Project with another User. iCi App will not be a party to any contracts for Projects, and the formation of a Service Contract will not, under any circumstance, create an employment or other service relationship between iCi App and the Talent. The terms of the Service Contract include the terms set forth in this Section 7, the engagement terms proposed and accepted on the iCi App Platform, and any other contractual terms accepted by both the Talent and the Client to the extent such terms do not conflict with the terms in this Agreement including this Section 7 and do not expand iCi App’s obligations or restrict iCi App’s rights under this Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a Project. Both parties agree to negotiate any dispute for at least thirty (30) days before initiating any proceeding between the parties.
8.TALENT CLASSIFICATION AND WITHHOLDINGS.
AS SET FORTH IN SECTION 2 OF THIS AGREEMENT, iCi APP DOES NOT PERFORM PROJECTS AND DOES NOT EMPLOY TALENT TO PERFORM PROJECTS. Each Client assumes all liability for proper classification of such Talent based on applicable legal guidelines. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of iCi App. Talent determine at their own discretion what categories they are qualified in and scope their services. iCi App does not direct how Talent performs a project and does not monitor projects or chat threads between Users. Clients are advised to confirm with Talent that the Talent is qualified to perform the specific tasks in the Project prior to the Project taking place. Accordingly, iCi App is not liable for the acts or omissions of Users. Each User acknowledges that iCi App does not, in any way, supervise, direct, control or monitor a Talent’s work or Projects performed in any manner. iCi App does not set Talent’s work hours or location of work. iCi App will not provide any equipment, wardrobe or materials needed for a particular Project and does not reimburse any expenses. iCi App does not provide any supervision to Talent. iCi App is not an employment service and iCi App is not an employer of any Talent. As such, iCi App is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, worker’s compensation insurance, social security, disability insurance, sick leave, vacation pay, retirement benefits, health benefits or any other applicable federal or state withholdings in connection with your use of iCi App and Talent`s services.
a. Submitting projects.
Clients may submit projects and book Talent through the Service. You represent and warrant that the information you submit about each Project (together, with all other materials submitted by you to the Service, “Client Materials”) is accurate. In addition, iCi App has the right – but not the obligation – in its sole discretion to refuse or delete any Projects that it reasonably considers to violate this Agreement or be otherwise illegal or inappropriate.
b. Booking projects.
If you wish to book Talent for a Project, you may post your Project through the Service, which the Talent may accept or reject in his or her sole discretion. If the Talent accepts a Project, iCi App will charge you for the price you have submitted for the Project (the “Fee”). The Fee will be held in escrow by iCi App’s payment processor until the Project’s completion. As long as there are no good faith disputes regarding the booking during the Project and fifteen (15) minutes immediately following completion of the Project, iCi App will then authorize its payment processor to release the Fee. iCi App’s payment processor will pay the Fee to the Talent, minus a service charge retained by iCi App in the amount of 10% of the applicable Fee (“Talent Fee”). We also reserve the right in our sole discretion to charge each Client a fee in the amount of 3% of the applicable Fee to help defray the payment processing fees imposed on us by our payment processor (“Client Fee”).
Clients may cancel Projects booked through the Service in their sole discretion at any time. Client can cancel a Project at any time prior to 24 hours before the Project start-date for the full refund. If a Client cancels a Project within 24 hours of the Project start-date, then the Client will be charged fifty percent (50%) of the applicable Fee. If a Client cancels a Project within two (2) hours of the Project start-time or during the Project, the full Fee will be charged. We may change the cancellations policies set forth in this Section in our sole discretion.
d. Talent’s cancellation.
In case the Talent cancel before your Project starts or at the start time of your Project, iCi App’s payment processor will refund you the payment according to this Agreement.
e. Intervention of iCi App in the booking.
If you successfully finalized a Project through iCi App Platform with a Talent, the persons intervening in this process are you, the Talent and iCi App. iCi App is intervening in the transaction solely for the following scopes:
- To provide, host and maintain a data base of Talent on the Platform for the benefits of the Clients, who may select any of them for the jobs that they may require through the platform;
- To supervise the payment process and assist the Client for correct payments and the Talent for correct billing.
- In case of a sudden cancellation of the booking by the Talent, iCi App will endeavor to help and assist you in finding a suitable substitution, if you require so.
- iCi App does not take any decision on the suitability of Talent for a certain job. The only persons responsible of the decision and of the adequacy of the services of Talent for a job is you and the Talent. Thus iCi App acts solely as intermediary and is not in any way deemed to be an agent, agency or a representative of the Talent booked.
10. BILLING AND PAYMENT.
Payment for Projects through the iCi App Platform is made directly from the Client to the Talent and not by iCi App. Users of the iCi App will be required to provide their credit card and/or bank account details to iCi App and the Payment Service Provider retained by iCi App (the “PSP”). Clients will be responsible for paying the invoice for each Project (the “Invoice”), which will include (i) the pricing terms of the Project agreed with and provided by a Talent (“Talent Payment”), (ii) the service fee, if applicable, which is used to offset iCi App's cost of providing Users with customer support and other various business objectives, and (iii) cancellation fees, if applicable. Users may be required to register with the PSP and set up their account with the PSP (“PSP Agreement”). Please note that iCi App is not a party to the PSP Agreement and that you, the PSP and any other parties listed in the PSP Agreement (currently, Stripe) are the parties to the PSP Agreement and that iCi App has no obligations or liability to any User under the PSP Agreement.
When Client books Talent through the iCi App Platform for Client`s Project, Client automatically authorizes iCi App to provide Client's payment details to the PSP for processing of Talent Payment, and any service fees owed to iCi App for the use of the Platform. You may be charged a cancellation fee through the PSP if you cancel confirmed Project according to cancelation policy.
11. CANCELLATION POLICY.
Clients may cancel Projects booked through the Service in their sole discretion at any time. Client can cancel a Project at any time prior to 24 hours before the Project start-date-and-time for the full refund. If a Client cancels a Project within 24 hours of the Project start-date-and-time, then the Client will be charged fifty percent (50%) of the applicable Fee. If a Client cancels a Project within two (2) hours of the Project start-time or during the Project, the full Fee will be charged. We may change the cancellations policies set forth in this Section in our sole discretion.
iCi App Platform is only a venue for connecting Users. Because iCi App is not involved in the actual contact between Users or in the completion of the Project, in the event that you have a dispute with one or more Users, you release iCi App and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
iCi APP EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS iCi APP PLATFORM.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “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.”
13. RESTRICTION ON USE OF SERVICE, ACCEPTABLE USE.
iCi App Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the iCi App, you may not share your personal contact information with other Users.
Without limitation, while using the iCi App, you may not:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including iCi App staff, or use information learned from the iCi App Platform or during the performance of Projects to otherwise defame, abuse, harass, stalk, threaten, intimidate or mislead, or otherwise violate the legal rights of any other User or iCi App staff.
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the iCi App Platform.
- Use the iCi App Platform for any purpose, including, but not limited to posting or completing a Project, in violation of local, state, national, or international law.
- Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
- Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another's computer.
- Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- Advertise or offer to sell any goods or services for any commercial purpose through the iCi App Platform which are not relevant to Project offered through the iCi App Platform.
- Post or complete a Project requiring a User to (i) purchase or obtain gift cards, money orders or high value items without notifying iCi App, (ii) otherwise engage in activity that is illegal or deemed dangerous, harmful or otherwise inappropriate by the iCi App in its sole discretion.
- Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
- Post the same Project repeatedly (“Spamming”). Spamming is strictly prohibited.
- Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the iCi App Platform.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by iCi App, without the prior written consent of iCi App.
- Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the iCi App Platform in any manner.
- Hack or interfere with the iCi App Platform, its servers or any connected networks.
- Adapt, alter, license, sublicense or translate the iCi App Platform for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by iCi App.
- Upload content to the iCi App 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 under the age of 18 in an abusive, violent or sexual manner.
- Use the iCi App Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the iCi App Platform as set forth herein.
- Use the iCi App Platform to collect usernames and or/email addresses of Users by electronic or other means.
- Use the iCi App Platform or Services in violation of this Agreement.
- Use the iCi App Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining iCi App’s trade secret information for public disclosure or other purposes.
- Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the platform, including 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 identities.
- Cause any third party to engage in the restricted activities above.
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, and iCi App will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
14. USER MATERIALS.
a. License to user materials.
Client Materials and Talent Materials are collectively, “User Materials” is defined as any information and materials you provide to iCi App or other Users in connection with your registration for and use of the iCi App Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for User Materials, and we act merely as a passive conduit for your online distribution and publication of your User Materials. By Posting User Materials to the Service, you hereby grant iCi App (and its assignees, designees, successors, licensees, and sub-licensees), for the sole purposes of displaying your User Materials to other Users, an unrestricted, assignable, sub-licensable, revocable, royalty-free, fully paid up license throughout the world and during the term of the Agreement to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works from, and otherwise use and exploit (collectively, “Use”) all User Materials you upload to or through the Service through any media and formats now known or hereafter developed.
Each User who provides to iCi App any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the iCi App Platform, hereby irrevocably grants to iCi App the non-exclusive, fully-paid, royalty-free, transferable, sub-licensable, worldwide, unrestricted, and perpetual right to:
- Use any photograph, videotape, film or record that such User provides to iCi App or that iCi App takes of User, and use, reproduce, modify, or creative derivatives of 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 and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such User in connection with the iCi App Platform.
- Use, and permit to be used, such User’s name and identity in connection with the iCi App Platform and Services including iCi App marketing and social media.
b. License for name, image, voice and likeness.
You further grant iCi App a royalty-free license to Use your name, image, voice, and likeness (and that of any person identifiable in any User Material you post to the Service) made available by or on your behalf through the Service.
c. Limited waiver of rights.
By posting User Materials to or through the Service you waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Materials, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Materials you post to the Service, during the term of this Agreement. You expressly release iCi App and all of iCi App agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of your User Materials as authorized in this Agreement. Each User hereby waives all rights and releases iCi App from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s identity, likeness or voice in connection with the iCi App Platform.
d. Representations and Warranties.
With Respect to Your User Materials. Except for materials iCi App provided to you through the Service, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of all of your User Materials that you post to the Service, or you have all rights, licenses, consents, and releases that are necessary to grant to iCi App the rights in your User Materials as contemplated under this Agreement, and (ii) neither the User Materials you post to the Service nor your creation of, accessing, or posting of your User Materials or iCi App’s Use of your User Materials (or any portion thereof) as permitted in this Agreement will:
- be false, inaccurate, incomplete or misleading;
- be fraudulent or involve the sale of counterfeit or stolen items;
- infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights;
- constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise);
- be obscene or contain child pornography or be harmful to minors;
- contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- require iCi App to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
- create liability for iCi App or cause iCi App to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
e. Prohibition on uploading objectionable content.
You agree not to submit User Materials that: (i) is or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred (collectively, “Objectionable Content”), as iCi App determines in its sole discretion; or (ii) introduces viruses, time-bombs, worms, cancel bots, Trojan Horses and/or other harmful or malicious code. If you encounter any Objectionable Content on the Service, please email at email@example.com.
15. INTELLECTUAL PROPERTY RIGHTS.
The Service is licensed, not sold, to you for use only under the terms of this Agreement. iCi App reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with this Agreement, iCi App hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for the purpose of searching for Talent and booking Projects.
All text, graphics, editorial content, data, formatting, designs, HTML, look and feel, photographs, software, music, sound, videos, interactive features, goodwill and other content (collectively “Proprietary Material”) that Users see or read through the iCi App Platform is owned by iCi App, excluding User Generated Content that iCi App has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. iCi App owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. You may not copy, reproduce, upload, republish, transmit, post or distribute any material from the Service in any way without prior express written permission of the copyright owner of such material or as otherwise specified in this Agreement or permitted by functionalities of the Service. You may not modify any materials obtained from the Service unless you have obtained prior express written authorization from the applicable copyright owner. You must obtain permission for all other uses of materials made available on or through the Service from iCi App or the copyright owner in advance and in writing.
The trademarks, service marks, and logos of iCi App (the “iCi App Trademarks”) used and displayed on the Service are registered and unregistered trademarks or service marks of iCi App. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with the iCi App Trademarks, the “Trademarks”). Nothing on the Service or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without iCi App’s prior express written consent for each individual use. You may not use the Trademarks to disparage iCi App or the applicable third-party, iCi App’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without iCi App’s prior express written consent. All goodwill generated from the use of any iCi App’s Trademark will inure solely to iCi App’s benefit.
You may not sell, transfer, assign, license, sublicense, or modify the iCi App Content or App, and you may not reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the iCi App Content in any way for any public or commercial purpose. The use or posting of any of the iCi App Content on any other website or in a networked computer environment for any purpose is expressly prohibited. In addition, you also may not attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law). If you violate any part of this Agreement, then your right to access and/or use the iCi App Content and Service will automatically terminate and you must immediately destroy any copies you have made of the iCi App Content.
e. Client’s brand.
The Client agrees that iCi App may use your name and brand as a customer reference and may publicly disclose and advertise the fact that you are using iCi App Platform and Services.
16. COPYRIGHT COMPLAINTS AND DESIGNATED AGENT.
a. Procedure for Reporting.
iCi App 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 iCi App Platform infringe upon your copyright or other intellectual property right, please send the following information iCi App’s Designated Agent via email to firstname.lastname@example.org:
- A description of the copyrighted work that you claim has been infringed, including the screenshots and/or URL (Internet address) or other specific location on the iCi App Platform where the material you claim is infringed is located. Include enough information to allow iCi App 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
- An electronic signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
b. Repeat Infringers.
iCi App intellectual property policy is to (i) remove or disable access to material that iCi App believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Materials uploaded to the Service by “repeat infringers.” iCi App considers a “repeat infringer” to be any user that has uploaded User Materials or Feedback to or through the Service and for whom iCi App has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Materials or Feedback. iCi App reserves the right at its own has discretion to terminate the account of any User after receipt of a single notification of claimed infringement or upon iCi App’s own determination.
c. Counter Notification.
If you receive a notification from us that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide us with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to iCi App’s Designated Agent via email to email@example.com and include substantially the following information:
- Your electronic signature or signature the person authorized to act on your behalf;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- Your name, address, telephone number and email address;
- A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
d. False Notifications of Claimed Infringement or Counter Notifications.
iCi App reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
17. MOBILE PHONE USE, TEXTS AND CALLS.
By providing your mobile phone number and using the iCi App Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the iCi App Platform, (b) facilitate the carrying out of Projects through the iCi App Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Projects, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming Projects and/or in follow up to any push notifications delivered through our mobile application. iCi App will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings or texting “STOP” in response to any texts, or by emailing firstname.lastname@example.org and specifying you want to out-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing email@example.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
18. INTERACTIONS WITH OTHER USERS.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT iCi APP CURRENTLY DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS. iCi APP ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. iCi APP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. iCi APP RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
IN NO EVENT SHALL iCi APP BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER REGISTERED USERS OF THIS SERVICE OR PERSONS YOU MEET THROUGH THIS SERVICE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS OF THE SERVICE. YOU UNDERSTAND THAT iCi APP MAKES NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING YOUR ULTIMATE COMPATIBILITY WITH INDIVIDUALS YOU MEET THROUGH THE SERVICE. YOU SHOULD NOT PROVIDE YOUR PERSONAL AND FINANCIAL INFORMATION (FOR EXAMPLE, YOUR CREDIT CARD OR BANK ACCOUNT INFORMATION) TO OTHER USERS.
The Service allows Users to send messages (“Messages”) to each other. Sending Messages is a privilege, not a right, and iCi App may terminate such privileges of any User at any time and for any reason, without any liability to such User. Harmful, obscene, or offensive communications are not welcome in any Messages. If a User sends you an objectionable Message, then please notify us by sending an e-mail to firstname.lastname@example.org. You should exercise discretion, good sense, and sound judgment when sending a Message. You are solely responsible for the content of any Message you send. You agree to take reasonable precautions in all interactions with other Users and should not provide to other Users via messages your personal information (such as your phone number, email, social security number etc.) and/or financial information (for example, your credit card or bank account information and etc.). You agree that iCi App may monitor Messages for compliance with these Terms, and therefore, Messages should not be considered confidential or proprietary. You hereby grant us an assignable, sub-licensable, irrevocable license to reproduce and transmit your Messages in connection with facilitating transmission to the intended recipient through the Service and for such other purpose as iCi App may deem appropriate in its sole discretion.
iCi App Platform hosts User Materials relating to reviews and rating system of specific Talent (“Rating”). Such Review is User’s opinion and not the opinion of iCi App, has not been verified or approved by iCi App and each Client should undertake their own research to be satisfied that a specific Talent is the right person for a Project. You agree that iCi App is not liable for any Rating or other User Generated Content. iCi App encourages each User to give objective, constructive and honest Rating about the other Users with whom they have transacted. iCi App does not investigate any remarks posted by Users for accuracy or reliability but may do so at iCi App`s sole discretion.
21. REMOVAL OF INFORMATION.
We do not and cannot review all profiles, public postings, messages or other materials posted or sent by users of the Service. We are not responsible for any of the content of these profiles, public postings, messages or other materials. We reserve the right, but are not obligated to, delete, move or edit profiles, public postings, messages and other materials that we, in our sole discretion, deem to be in violation of the Code of Conduct as set out above or any other applicable content guidelines or deem to be otherwise unacceptable. User shall remain solely responsible for the content of profiles, public postings, messages and other materials User may upload to the Service.
22. TERMINATION AND SUSPENSION.
iCi App may terminate, limit or suspend your right to use the iCi App Platform in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.
If iCi App terminates, limits, or suspends your right to use the iCi App Platform as a Client for a User Breach, you will not be entitled to any refund of unused balance in your account, and you are prohibited from registering and creating a new account under your 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. In addition to terminating, limiting, or suspending your account, iCi App reserves the right to take appropriate legal action, including without limitation pursuing arbitration, criminal, and injunctive redress in accordance with Section 26.
Even after your right to use the iCi App Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you.
iCi App reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the iCi App Platform at its sole discretion. Except for refundable fees you have advanced to iCi App (if any), iCi App is not liable to you for any modification or discontinuance of all or any portion of the iCi App Platform. Notwithstanding anything to the contrary in this Section, iCi App has the right to restrict anyone from completing registration as a User if iCi App believes such person may threaten the safety and integrity of the iCi App Platform, or if, in iCi App’s sole discretion, 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 iCi App Platform. All sections 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.
23. NO RESPONSIBILITY.
You acknowledge that we are not responsible for interruption or suspension of the Service, regardless of the cause of the interruption or suspension.
24. EXTERNAL LINKS.
You understand that by using any of the External Links, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the External Links at your sole risk and that iCi App shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable. It shall be your sole and exclusive obligation to prevent children and other persons from viewing or accessing any inappropriate content that may be included in or available through any External Links.
By using External Links, you acknowledge and agree that iCi App is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such materials at External Links. iCi App does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any External Links or for any other materials, products, or services of third parties.
You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk, and you agree that iCi App shall have no responsibility to you in the event your computer or mobile device is affected in any way by your use of External Links.
25. CONTROVERSIES BETWEEN USERS.
a. Opening a controversy.
In the event of complaints, the Client must inform the iCi App immediately as soon as an issue arise but no later than the end time of the Project and state the grounds for the complaint. To this extent, the Platform provides “Contact Support” button available during your project or by emailing Support Team at email@example.com.
b. Substantiating a controversy.
Polaroid Photographs must be taken to provide evidence for the complaint.
c. Behavior during a controversy.
While opening a controversy and submitting your complaint to iCi App you must release the Talent against whom complaints were made from the obligation to work. If professional photographs, video or voice recording are nevertheless taken using the Talent and/or Talent signed Talent Release Form for his/her work or likeness, the Client shall be considered as having waived all rights to complaint.
d. Friendly resolution of the controversy.
If the Talent should be to blame for arriving significantly late, the Talent shall accordingly be obliged to work longer. If, owing to specific circumstances, this should prove to be partially or entirely impossible, please contact iCi App support team via “Contact Support” button to request refund for the proportionate part of the Project rate.
e. Closing of the controversy without a resolution.
If settlement is not reached within seven (7) business days from the opening of a controversy, the controversy will be automatically closed without a settlement by iCi App either with the refund of deposit to the Client or the payment of the booking price to the Talent. The party which is unsatisfied with iCi App controversy resolution panel may in case pursue his/her interests against the counterpart and iCi App according to Section 26 of this Agreement.
26. DISPUTE RESOLUTION.
a. Informal Negotiations.
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and iCi App (each a “Claim” and collectively “Claims”), you and iCi App agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written or emailed notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to iCi App. iCi App’s email address for such notices is firstname.lastname@example.org. If necessary to preserve a Claim under any applicable statute of limitations, you or iCi App may initiate arbitration while engaging in the informal negotiations.
b. Mandatory Arbitration.
Please read this carefully. It affects your rights.
YOU AND iCi APP MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) 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.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
This agreement to arbitrate, contained in this section, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with iCi App. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the iCi App, Services, Projects, your relationship with iCi App, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by iCi App, breach of any express or implied contract or breach of any express or implied contract or 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; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, 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, and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND iCi APP ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED 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 WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
c. Agreement Prohibiting Class Actions and Non-Individualized Relief.
You and iCi App agree that any arbitration will be limited to the Dispute between iCi App and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND iCi APP ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”).
YOU AND iCi APP AGREE THAT YOU AND iCi APP MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against the iCi App which are addressed separately in Section (d) below. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the Commercial Arbitration Rules and/or American Arbitration Association (“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: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated 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.
d. Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent allowed by law: (1) you and iCi App agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and iCi App agree that any such Dispute will be resolved in arbitration on an individual basis only (that is, to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
e. Rules and Logistics Governing Arbitration.
e.1. Commencing Arbitration.
A party who intends to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address, via any other method available including via e-mail. The Notice to iCi App should be addressed to iCi Talent, Inc., 32 Union Square East Suite 912-913 New York NY 10003 Attn: Legal Arbitration Department (the “Arbitration Notice Address”) or via email to email@example.com with subject of email “Arbitration Notice”. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and iCi App do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or iCi App may commence an arbitration proceeding as set forth below.
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) 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”), both of which are available at the AAA website www.adr.org. 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, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
e.2. Arbitration Proceeding.
The arbitration will be in English. Unless you and iCi App agree otherwise, any arbitration hearings between iCi App and a User will take place in State of New York. A single independent and impartial arbitrator with his or her primary place of business in New York, New York will be appointed pursuant to the Rules, as modified herein.
e.3. Decision of the Arbitrator.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. 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 shall not be bound by rulings in prior arbitrations involving different Talent or Clients, but is bound by rulings in prior arbitrations involving the same Talent or Client to the extent required by applicable law. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator’s award shall be final and binding. The arbitrator will apply New York state law. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in this Agreement.
e.4. Arbitration Fees and Attorney Fees.
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:
If iCi App initiates arbitration under this Arbitration Agreement, iCi App will pay all AAA filing and arbitration fees. For Claims that (A) are based on an alleged employment relationship between iCi App and the Talent; (B) arise out of, or relate to, the iCi App’s actual or threatened deactivation of a User’s account; (C) arise out of, or relate to the iCi App’s actual or threatened termination of a User’s Agreement with the iCi App; or (D) arise out of, or relate to, monies earned or paid for Projects and Services (as defined above, including the Client Fee and Cancellation Fee), monies owed by Clients to Talent, monies owed by iCi App to Client or Talent, other than disputes relating to iCi App`s sponsored promotions, (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “User Claims”), iCi App shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses to the extent not paid by iCi App pursuant to the fee provisions below.
If you are the party initiating the User Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you ordered or provided the Services, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or this subsection above. However, if a Client or Talent files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed five thousand US dollars (5,000), iCi App will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator.
Except as provided in Federal Rule of Civil Procedure or any state equivalents, 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 Dispute(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
f. Equitable Relief.
The foregoing provisions of this Dispute Resolution section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event of a breach of this Agreement by iCi App or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against iCi App, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this Agreement.
You and iCi App agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to this Agreement or the Service, excluding a claim for indemnification, must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
h. Improperly Filed Claims
All claims you bring against iCi App must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, iCi App may recover attorneys’ fees and costs up to ten thousand US dollars ($10,000), provided that iCi App has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
In the event that iCi App makes any future change to the Mandatory Arbitration provision (other than a change to iCi App’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to iCi App’s Arbitration Notice Address, in which case your Account and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive this Agreement’s termination.
j. Right to Opt Out of Arbitration Agreement.
You may opt out of the Arbitration Agreement by notifying iCi App in writing within thirty (30) days of the date you first registered for the iCi App Platform or thirty (30) days from the date this Agreement was last updated. To opt out, you must send a written notification to iCi App’s Arbitration Notice Address, 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 do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. In which case your Account and your license to use the Service will terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, will survive this Agreement’s termination.
In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
27. GOVERNING AND CHOICE OF LAW
This Agreement, its validity, the construction of its terms and effect, shall be interpreted and governed by the laws of the State of Delaware without reference to its choice of law.
28. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES.
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
iCi APP, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, THE “iCi APP PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT PROVIDED THROUGH THE iCi APP PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE iCi APP PLATFORM, INCLUDING BUT NOT LIMITED, TO THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY THEREOF.
THE iCi APP PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT OR ANY OTHER INFORMATION CONVEYED TO ANY iCi APP USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT AT YOUR OWN RISK.
THE iCi APP PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO iCi APP PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
THE iCi APP PARTIES CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
THE SERVICE AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
THE iCi APP PARTIES DO NOT MAKE ANY WARRANTY TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY PROJECT OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE iCi APP PLATFORM. iCi APP PARTIES IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
THE iCi APP PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE iCi APP PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND iCi APP WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. 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.
YOU ACKNOWLEDGE AND AGREE THAT iCi APP IS ONLY WILLING TO PROVIDE THE iCi APP PLATFORM AND SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD iCi APP PARTIES LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE iCi APP PLATFORM OR SERVICES, 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 iCi APP PARTIES AND ANY DESTRUCTION OF YOUR INFORMATION.
THE iCi APP PARTIES DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE iCi APP PLATFORM.
THE iCi APP PARTIES ASSUMES NO LIABILITY OR RESPONSIBILITY 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 iCi APP PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE iCi APP SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE PROJECT AND SELECTING THEIR TALENT AND iCi APP DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR TALENT. iCi APP DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY TALENT’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
UNDER NO CIRCUMSTANCES WILL iCi APP PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE iCi APP PLATFORM OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF iCi APP PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. NOTWITHSTANDING THE FOREGOING EXCLUSIONS, iCi APP’S LIABILITY, AND THE LIABILITY OF ANY OTHER iCi APP PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, IS LIMITED TO ONE HUNDRED US DOLLARS ($100.00). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF THE iCi APP PARTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
29. THIRD PARTIES DISPUTE.
iCi App is not affiliated with any mobile carrier or other third party service provider, and any dispute you have with any such parties or any other third party, including, without limitation, any other user of the service (including any talent or client) or any modeling or talent agency or manager and/or “mother agency,” is directly between you and such third party, and you irrevocably release the iCi App Parties from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
30. NO AGENCY.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
You hereby agree to indemnify, defend, and hold harmless iCi App, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, successors and assigns, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys' fees and costs incurred, in connection with (i) your use or inability to use the iCi App Platform or Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law the rights of any User or third party (iv) any content submitted by you or using your account to the iCi App 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. iCi App reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. In such case, you agree to cooperate with any reasonable requests assisting iCi App’s defense of such matter. You will not, in any event, settle any claim or matter without the written consent of iCi App.
32. UNENFORCEABILITY OF PROVISIONS.
If any provision of this Agreement or any portion thereof, to any person or circumstances is held to be invalid and/or unenforceable to any extent in any jurisdiction under the regulations of any union or guild or by a court of competent jurisdiction, such validity or unenforceability shall not affect the validity and enforceability of the other provisions of this agreement and shall remain in full force and effect in all and any jurisdictions and the provision held to be invalid or unenforceable shall be enforced as nearly as possible according to its original terms and intent to eliminate such invalidity or unenforceability.
The waiver by either of the parties, express or implied, of any right under this Agreement or any failure to perform under this Agreement by the other party, shall not constitute or be deemed as a waiver of any other right under this Agreement or of any other failure to perform under this Agreement by the other party, whether of a similar or dissimilar nature. No waiver will be effective against iCi App unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance.
This Agreement constitutes the entire agreement between you and iCi App. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between you and iCi App as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. The section headings are provided merely for convenience and will not be given any legal import. This Agreement will inure to the benefit of our successors and assigns. You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without iCi App’s prior express written consent. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. iCi App may assign this Agreement, including all its rights hereunder, without restriction.
35. TERMINATION OF THE AGREEMENT.
a. Account deletion.
You may delete your iCi App Client Account at any time without cause. You may deliver notice of termination via email to firstname.lastname@example.org. The termination notice shall include your registered name and e-mail address. Your account will cease to be present in the platform online.
b. Termination of this Agreement.
This agreement remain into force until all obligations between parties are fulfilled and/or pending any disputes. Sections 4,7, 8, 13 - 16, 19, 24 – 28, 30 – 35 survive the termination of this Agreement.
36. NOTICE ABOUT APPLE, INC
You acknowledge that this Agreement is between you and iCi App only, not with Apple Inc., and Apple Inc. is not responsible for the iCi App or the content thereof. Apple Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the iCi App. Apple Inc.is not responsible for addressing any claims by you or any third party relating to the iCi App or your possession and/or use of the iCi App, including, but not limited to: (i) product liability claims; (ii) any claim that the iCi App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple Inc. is not responsible for the investigation, defense, settlement and discharge of any third party claim that the iCi App or your possession and use of the iCi App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the iCi App. Apple Inc., and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple Inc. will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If iCi App provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail.
37. SPECIAL PROMOTIONS.
iCi App may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of iCi App, and can be activated, modified or removed at any time by iCi App without advance notification and the liability of any of iCi App’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to Section 28 of this Agreement, including but not limited to Section 28 of these Agreement.
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending iCi App or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to iCi App you agree that:
(i). iCi App has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason; (ii). Feedback is provided on a non-confidential basis, and iCi App is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and (iii). You irrevocably grant iCi App perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.