Last Updated: February 25, 2019
This agreement contains disclaimers of warranties, limitations on liability, releases, a class-action waiver, and the requirement to mediate and arbitrate all claims that may arise under this agreement. These provisions are an essential basis of this agreement.
This is a legally binding agreement between you and Penny Ventures, LLC. You must be at least 18-years old and have reached the age of majority and legal consent in the jurisdiction in which you live or reside to agree to this agreement. By clicking on the words “I agree,” “Submit,” or similar syntax, you are electronically signing this agreement, and therefore agree to be bound by and acknowledge your complete acceptance of all the express and incorporated terms of this agreement. If you do not agree to this agreement or do not meet the age requirements, you must not register.
No Prostitution or Sex Trafficking. The promotion of prostitution, escort services, personal companions, etc. are contrary to the purposes of the Platform and will not be tolerated in any fashion. Promoting or offering prostitution or escort services on the Platform is strictly prohibited. Creators that promote prostitution or escort services in any way will be immediately banned.
This creator agreement is between Penny Ventures, LLC, a Delaware limited liability company (the “Company”), and you, the person signing up to be a creator (the “Creator”).
The Company owns and operates the content sharing platform and community available at www.quackle.com and as a mobile application through the Apple and Android App Stores (collectively, the “Platform”), which allows persons to monetize their content and interact with their followers.
The Creator wants to participate in the Platform as an independent contractor.
The parties therefore agree as follows:
1. Creator Enrollment
1.1. Eligibility. To be eligible to participate in the Platform, the Creator must be either an individual who is at least 18-years old and has the legal capacity to enter into legally binding contracts or an entity that is duly organized in its jurisdiction of organization and has the power and authority to enter into legally binding contracts.
1.2. Registration. To register, the Creator must complete the applicable registration form, submit one piece of government issued picture identification that contains the Creator’s or one of its owner’s full legal name and birth date for age and identity verification purposes, and a completed W9-Form. By registering, the Creator states that all account registration information is accurate.
2. Company Proprietary Rights; Limited License
2.1. Ownership. The data and materials on the Platform, except the Creator Content (as defined below), including the text, graphics, interactive features, logos, photos, music, videos, software, and all other audible, visual, or downloadable materials, as well as the selection, organization, coordination, compilation, and overall look and feel of the Platform (collectively, the “Materials”) are the intellectual property of the Company, its licensors, and its suppliers. The Materials are protected by copyright, trade dress, patent, trademark, and other laws, international coventions, and proproprietary rights and all rights to the Materials remain with the Company, its licensors, or its suppliers, as the case may be. The Creator does not acquire any ownership rights in the Platform. Except as the Company expressly authorizes, the Creator will not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Materials. If, with authorization, the Creator downloads or prints a copy of the Materials for use, the Creator must retain all copyright, trademark, or other proprietary notices. The Company reserves all rights not expressly granted in and to the Platform and the Materials.
2.2. Trademarks. The Company’s name and logo; the term QUACKLE; and all related names, logos, product and service names, designs, and slogans are the Company’s service marks and trademarks. The Creator will not use these marks without the Company’s written permission. All other names, logos, product and service names, designs, and slogans on the Platform are the service marks and trademarks of their respective owners.
2.3. Limited License. The Company hereby grants the Creator a nonexclusive, nontransferable, nonsublicensable (except as otherwise provided in this agreement), revocable, limited license to access and use the Platform and the related software in accordance with this agreement (including the right to create a profile, upload content, and sell content through the Platform). The Creator acknowledges that the of the Quackle mobile application is subject to the applicable Quackle Mobile App End User License Agreement depending on whether the Creator is using an Apple or Android mobile device. Any use other than as expressly permitted by this agreement is strictly prohibited.
2.4. Availability. The Company may alter, remove, or discontinue any part of the Platform or the Materials on the Platform, at any time, for any reason, without notice, and the Company will not be liable to the Creator in any way for possible consequences of those changes.
3. Creator Account
3.1. Account Creation. During the registration process, the Creator will create an account by providing the Company with accurate information as prompted by the registration form, including a valid email address. The Creator also will choose a password and a unique username. The Creator must not choose a username that is offensive or that infringes another person’s service mark, trademark, or tradename.
3.2. Responsibility for Account. The Creator is responsible for maintaining the confidentiality of the Creator’s password and account. Further, the Creator is responsible for all activities that occur under the Creator’s account. The Creator will promptly notify the Company of any unauthorized use of the Creator’s account or any other security breach.
3.3. Liability for Account Misuse. The Company will not be liable for any loss that may incur as a result of someone else using the Creator’s password or account, either with or without the Creator’s knowledge. The Creator could be held liable for losses incurred by the Company or another person due to someone else using the Creator’s account or password.
3.4. Use of Other Accounts. The Creator must not use anyone else’s account at any time.
3.5. Account Security. The Company cares about the integrity and security of the Creator’s personal information. But the Company cannot guarantee that unauthorized persons will never be able to defeat the Platform’s security measures or use any personal data the Creator provides to the Company for improper purposes. The Creator acknowledges that the Creator provides personal data at the Creator’s own risk.
4. Creator Profile and Content
4.1. The Creator may create a profile (the “Creator Profile”) on the Platform to offer various content and services, including paid videos, paid pictures, paid SMS chat, paid timeline, paid daily stories, paid comments, and paid live chat (collectively, the “Creator Offerings”). The Creator may offer the Creator Offerings for a one time or recurring fee depending on the Creator Offering.
4.2. The Creator may upload to or display through the Creator Profile various media, content, and material including videos, photographs, audio, text, audiovisual, graphics, music, trademarks, logos, and artwork (collectively, the “Creator Content”). The Creator states that the Creator owns or has a license to publish, publicly display, publicly perform, distribute, and permit the use of the Creator Content by the Company and the Platform users as contemplated by this agreement and the Terms of Service Agreement.
4.3. The Creator may use various interactive features, including live chat, messaging, email, and comments sections designed to foster interactions between the Creator and followers (the “Interactive Services”). The Creator will remain responsible for all feedback transmitted by the Creator or the Creator’s followers through the Interactive Services.
4.4. The Creator acknowledges that the Creator is solely responsible for the Creator Content that the Creator offers, publishes, transmits, or posts on or through the Creator Profile or the Interactive Services. The Creator Profile, the Creator Content, the Creator Offerings, and the Interactive Services must not:
(a) Contain any material that is harmful, threatening, defamatory, libelous, slanderous, pornographic or sexually explicit, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
(b) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
(c) Infringe any copyright, patent, service mark, trademark, trade name, trade secret, or other intellectual property or proprietary rights of any other person;
(d) Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable law or otherwise may be in conflict with this agreement or the Terms of Service Agreement;
(e) Be likely to deceive any person;
(f) Discuss, facilitate, promote, advertise, or solicit any illegal activity, or advocate, discuss, facilitate, promote, advertise, solicit, or assist any unlawful act, including prostitution or sex trafficking;
(g) Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person;
(h) Impersonate any person, or misrepresent the Creator’s identity or affiliation with any individual or organization;
(i) Display any telephone numbers, street addresses, last names, email addresses, URLs, or any confidential information of any person;
(j) Display any images or videos containing confidential or personal information without authorization;
(k) Give the impression that it emanates from or is endorsed by the Company or any other individual or entity, if this is not the case; or
(l) Contain technically harmful material, including computer viruses, logic bombs, Trojan horses, worms, malware, ransomware, harmful components, corrupted data, or other malicious software or harmful data.
Engaging in any of the above practices will be considered a breach of this agreement and may result in immediate termination of the Creator’s account and access to the Platform without notice, in the Company’s sole discretion. The Company may pursue any legal remedies against the Creator if the Creator engages in any of the above prohibited conduct. The Company may also report any Creator Offering that could be considered exploitative of children in any way to the National Center for Missing and Exploited Children’s CyberTipline and any other applicable legal and regulatory bodies.
4.5. The Company may reject or remove any Creator Offering, Creator Content, or Creator Profile at any time and for any reason. The reasons for rejection may include where the Company believes that the Creator Offering, Creator Content, or Creator Profile breaches this agreement, including section 4.4.
4.6. The Creator’s followers must submit payment through the Platform’s wallet feature. The Creator is solely responsible for setting the prices for the Creator Offerings. The Company is not required to review, endorse, police, or enforce any relationships, interactions, or content shared between the Creator and any follower. Nor is the Company required to resolve any dispute between the Creator and any follower or other person.
5. Creator Proprietary Rights
5.1. Ownership. The Company does not claim any ownership rights in the Creator Content depicted in the Creator Profile or the Interactive Services. The Creator continues to retain any ownership rights that the Creator may have in that Creator Content.
5.2. Creator License. The Creator hereby grants the Company, its affiliates, and service providers, and each of their and the Company’s respective licensees a perpetual, sublicensable, transferable, irrevocable, worldwide license to use, reproduce, modify, prepare derivative works of, publicly perform, publicly display, and distribute any Creator Content that the Creator uploads to, posts, displays on, or offers for sale through the Creator Profile or the Interactive Services. This license includes the right to use the Creator Content and any associated trademarks, service marks, or trade names to promote and redistribute any part of the Platform—and derivative works of it—in any media formats and through any media channels.
5.3. Use of Name and Likeness. The Creator hereby grants the Company, its affiliates, and service providers a perpetual, sublicensable, transferable, irrevocable, worldwide license to use the Creator’s name and likeness in any manner and any media, throughout the world, at any time, for advertising and promotional purposes and any other lawful purpose. The Creator hereby waives any right to inspect or approve the Company’s use of the Creator’s name and likeness.
5.4. Moral Rights Waiver. The Creator hereby waives all moral rights in the Creator Content that may be available to the Creator in any part of the world, and the Creator states that no moral rights have been asserted.
6. Monitoring and Enforcement
6.1. The Company may do any of the following:
(a) Remove or block the Creator Profile or any of the Creator Content or Creator Offerings for any reason or no reason at the Company’s sole discretion;
(b) Take any action with respect to the Creator Profile, the Creator Offerings, or the Creator Content that the Company considers necessary or appropriate in its sole discretion, including if the Company believes that the Creator Profile, the Creator Offerings, or the Creator Content breaches this agreement, infringes any intellectual property right of any person, threatens the personal safety of the Platform’s users or the public, or could create liability for the Company;
(c) Disclose the Creator’s identity or other information about the Creator to any person who claims that the Creator Profile, the Creator Offerings, or the Creator Content violates their rights, including their intellectual-property rights or their right to privacy or publicity;
(d) Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Platform; or
(e) Terminate or suspend the Creator’s access to all or part of the Platform for any reason, including breach of this agreement.
6.2. The Company fully cooperates with law enforcement authorities and court orders requesting or directing the Company to disclose the identity or other information of anyone posting any content on the Platform. The Creator hereby waives any claims the Creator might have against the Company, including its affiliates, licensees, and service providers, resulting from any action taken by the Company during or because of the Company’s investigations and from any actions taken as a consequence of investigations by either the Company or law enforcement authorities.
6.3. The Company does not endorse the opinions expressed in the Creator Profile, the Creator Content, or the Interactive Services. The Company cannot and does not review the Creator Profile or the Creator Content before the Creator posts it and cannot ensure prompt removal of objectionable content after it has been posted. The Company will not be liable for any action or inaction regarding transmissions, communications, or content provided by any person. The Company will not be liable to anyone for performance or nonperformance of the activities described in this section 6.
7.1. Creator Revenue; Platform Fee. The Creator will receive 75% of the Net Revenue (the “Creator Revenue”) from the sale of the Creator Offerings; the Company will retain 25% of that Net Revenue as a service fee. “Net Revenue” means gross revenue actually received from end users from a Creator Offering transaction less transactional costs, chargebacks, and refunds and excluding any taxes (including VAT). “Transactional costs” are amounts the Company pays to third parties to facilitate a transaction and may include payment-processing fees, foreign exchange fees, and third-party platform fees.
7.2. Payments; Adjustments. The Company deposits the Creator Revenue into an e-wallet associated with the Creator’s account (the “E-Wallet”). The Creator may withdraw the Creator Revenue from the E-Wallet every 15 days using one of the payment methods offered by the Company. All withdrawals will be paid out in U.S. dollars. The Company may condition the Creator’s ability to make an initial withdraw on the Company’s receipt of a completed IRS Form W-9. The Creator is not entitled to withdraw Creator Revenue with respect to any transaction that is subject to a refund or chargeback. The Company may withhold amounts or make adjustments in its sole discretion: (a) to satisfy any refunds that it may make; (b) pending any investigation of fraud or other illegality; and (c) as required by US tax law.
7.3. Taxes. The Creator is responsible for paying all taxes owed for revenues earned under this agreement. The Company may withhold from any amounts due to the Creator that the Company determines in good faith must be withheld under US tax law. The Company may file reports concerning income with any taxing authority, including the US Internal Revenue Service.
7.4. Disputes. If the Creator disputes any payment made by the Company, the Creator will notify the Company in writing no later than 15 days after the disputed payment. Failure to notify the Company within this period will result in the Creator’s waiver of any claims related to the disputed payment.
7.5. Violations. The Company is not required to pay Creator Revenue with respect to any Creator Offering or conduct that violates this agreement, and the Creator must repay to the Company any amounts the Creator received with respect to any violation.
8. Relationship of the Parties
8.1. The parties intend that their relationship will be that of independent contractors and not business partners. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither party is the agent for the other, and neither party has the right to bind the other on any agreement with another person.
8.2. The Creator is not eligible under this agreement to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees.
8.3. The Company is not responsible for withholding or paying any income, payroll, Social Security, or other foreign, federal, state, or local taxes; making any insurance contributions, including unemployment or disability; or obtaining worker’s compensation insurance on the Creator’s behalf. The Creator is solely responsible for all those taxes or contributions, including penalties and interest. The Creator is also responsible for maintaining adequate worker’s compensation coverage or insurance for the Creator and any employee or other personal engaged by the Creator.
8.4. Any persons employed or engaged by the Creator in connection with the creation, production, or submission of the Creator Content must be the Creator’s employees or contractors and the Creator will be fully responsible for them and indemnify the Company against any claims made by or on behalf of any such employee or contractor. The Creator will require each such employee and contractor to sign written agreements securing for the Company all rights granted to the Company in this agreement before that employee or contractor participates in the creation or submission of any Creator Content in connection with this agreement.
9. Statements of Fact. The Creator states that the following facts are accurate and will continue to be accurate during this agreement:
9.1. The Creator has independently evaluated the desirability of participating in the Platform, and the Creator has not relied on any statement other than those stated in this agreement.
9.2. The Creator’s signing and performance of this agreement will not conflict with or violate (i) any order, judgment, or decree that applies to the Creator; or (ii) any agreement that applies to the Creator.
9.3. The Creator’s performance under this agreement, the Creator’s use of the Platform, the Creator Offerings, and all other material, content, products, or services made available on, or linked to or from, a Creator Profile or the Interactive Services, will not:
(a) invade the right of privacy or publicity of any person (including invasion of rights of celebrity);
(b) involve any defamatory, libelous, slanderous, sexually explicit, obscene, indecent, or otherwise unlawful material;
(c) violate any applicable law; or
(d) otherwise infringe on the rights of any third parties, including those of copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual-property rights, or engage in false advertising, unfair competition, violation of antidiscrimination law, or violation of any other right of any person.
9.4. The Creator has the right to grant the licenses granted in sections 5.2 and 5.3 to the Company and its affiliates and service providers, and each of their and the Company’s respective licensees, successors, and assigns.
9.5. The Creator has a signed written consent or release for each identifiable person in the Creator Content to use their name and likeness to allow inclusion and use of the Creator Content in the way contemplated by this agreement and the Terms of Service Agreement.
9.6. Neither the Creator Offerings nor the Creator Content depicts any person under 18-years old at the time of production.
9.7. The Creator Profile, the Creator Content, and the Creator Offerings otherwise comply with section 4.4.
11.1. Account Deletion. The Creator may delete the Creator’s account at any time. The Creator may also delete the Creator Profile or the Creator Content at any time, except that the Creator Content will continue to be made available to followers who purchased that Creator Content.
11.2. Termination on Notice. Either party may terminate this agreement at any time by notifying the other party in writing.
11.3. Termination by Company. The Company may block, suspend, disable, or terminate the Creator’s access to the Platform if the Company determines, in its sole discretion, that the Creator (a) breached or otherwise violated this agreement, the Terms of Service Agreement, or the applicable Quackle Mobile App End User License Agreement; (b) engaged in fraudulent, illegal, or suspicious activity; or (c) otherwise engaged in conduct that would tend to damage the Company’s reputation and goodwill.
11.4. Effect of Termination. On termination, the Creator’s right to access the Platform and all licenses granted by the Company ends, and the Company will pay the Creator all revenues collected under this agreement less the service fees and any other amounts that the Company is entitled to withhold under this agreement or set off against any loss incurred under section 16 (Indemnification). If the Creator’s participation in the Platform terminates or is suspended for any reason, the Company may, without notice, terminate or suspend the Creator Profile and promptly remove any Creator Content, in the Company’s discretion, at any time afterwards. On deletion of the Creator’s account, the account will initially be hidden for 30 days and then will be deleted unless the Creator notifies the Company otherwise, except that the Creator Content will continue to be made available to followers who purchased that Creator Content.
11.5. Survival. Any part of this agreement that imposes an obligation after termination will survive the termination, including all warranty disclaimers and limitations of liability.
12. Acknowledgments and Warranty Disclaimers
12.1. The Company is not making any guarantee of profitability or about the amount of money the Creator will earn under this agreement. The Creator acknowledges that past earnings does not guarantee or suggest similar future earnings.
12.2. The Creator assumes sole responsibility for all risks, consequences, and damages resulting from the Creator’s interaction and association with the Platform, including risks associated with the publicity of appearing on the Platform; the risk of recording, piracy, or unauthorized dissemination of the Creator Content; or the risk of publication of the Creator’s identity, including the release of the Creator’s personal data as a result of a data breach.
12.3. The Creator acknowledges that the Platform allows the Creator to interact with followers and other visitors and that the Company does not screen or monitor the interactions between creators and followers or other visitors. The Creator acknowledges that the Creator may be exposed to content or conduct that is offensive, abusive, illegal, indecent, obscene, harassing, defamatory, or otherwise objectionable. The Company is not responsible or liable for what a follower or other visitor says or does on the Platform.
12.4. The Company is not making any warranty—express or implied—that
(a) the use of the Platform or the Interactive Services will be timely, uninterrupted, or error-free (whether as a result of technical failure, acts or omissions of third parties, or other causes) or will operate in combination with any other hardware, software, system, or data;
(b) the Platform or the Interactive Services will meet the Creator’s requirements or expectations;
(c) the Platform or the Interactive Services will be accurate or reliable;
(d) errors or defects in the Platform or the Interactive Services will be corrected; or
(e) the servers that make the Platform available are free of viruses or other harmful components.
12.5. The Company offers the Platform and the Interactive Services “as is.” The Company is not making any warranty, either express or implied, including any implied warranty of merchantability, fitness for a particular purpose, and noninfringement for the Platform or the Interactive Services. No advice or information, whether oral or written, obtained from the Company, the Platform, or elsewhere will create any warranty not expressly stated here.
13. Limitation of Liability
13.1. The Platform or the Interactive Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. The Company will not be liable for any delays, delivery failures, or other damages resulting from these problems.
13.2. The Company will not be liable to the Creator for any of the following:
(a) Errors, mistakes, or inaccuracies of the Platform;
(b) Personal injury or property damage resulting from the Creator’s access to or use of the Platform, including the Interactive Services;
(c) Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
(d) Unauthorized access to or use of the Company’s servers and any personal or financial data stored in them, including unauthorized access or changes to the Creator’s account, transmissions, or data;
(e) Interruption or cessation of transmission to or from the Platform or the Interactive Services;
(f) Denial-of-service attack (DoS) or distributed denial-of-service attack (DDoS);
(g) Bugs, viruses, trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Platform by any person or that might infect the Creator’s computer or affect the Creator’s access to or use of the Platform, or the Creator’s other services, hardware, or software;
(h) Incompatibility between the Platform and the Creator’s other services, hardware, or software;
(i) Delays or failures the Creator might experience in starting, conducting, or completing any transmissions to or transactions through or with the Platform; or
(j) Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Platform or the Interactive Services.
13.3. The Company will not be liable to the Creator for breach-of-contract damages that the Company could not reasonably have foreseen on entry into this agreement. The Company also will not be liable to the Creator for damages for (a) personal injury; (b) pain and suffering; (c) emotional distress; (d) loss of use; (e) loss of services; (f) loss of profits; (g) loss of revenue; (h) loss of goodwill; (i) loss of contracts; (j) loss of data; (k) loss of privacy; (l) loss of business or opportunity; or (m) cost of obtaining substitute services related to the Platform regardless of theory of liability and even if the Company knew or should have known of the posibility of these damages.
13.4. Except as stated in section 16 (Indemnification), neither party will be liable to the other party for indirect, incidental, special, statutory, exemplary, or punitive damages arising from or relating to this agreement, regardless of theory of liability and even if that party has been advised, or knew or should have known, of the possibility of these damages, including loss of revenue or anticipated profits or lost business.
13.5. The Company’s total cumulative liability to the Creator will not exceed the greater of (a) the total amount owed to the Creator under this agreement and (b) $500.
14. Waiver of California Civil Code Section 1542. If the Creator resides in California, the Creator acknowledges that the Creator understands the consequences of entering into the general release and discharge of all known and unknown claims as stated in this agreement and that the Creator is familiar with the provisions of section 1542 of the California Civil Code, which provides that:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
The Creator hereby waives all rights under section 1542 and under any other federal or state statutes or laws of similar effect.
15. Scope of Disclaimers and Limitations. The disclaimers and limits stated in sections 12 and 13 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive the Creator of any protections provided to the Creator by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the limitation of some damages or other matters, one or more of the disclaimers or limitations might not apply to the Creator.
16.1. In General. The Creator will pay the Company for any loss of the Company’s that is caused by the Creator’s (a) use of the Platform or the Interactive Services, including uploading, submitting, or offering for sale any Creator Content or other Creator Offering; (b) breach of this agreement, including any statement of fact; (c) failure to pay taxes in connection with Creator Revenues earned under this agreement; (d) dispute with any follower or any other person; (e) infringement of another person’s intellectual-property rights; (f) violation of any applicable law; or (g) tortious acts or omissions. But the Creator is not required to pay if the loss was caused by the Company’s intentional misconduct.
(a) “Loss” means an amount that the Company is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
(b) A loss is “caused by” an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
16.3. Company’s Duty to Notify. The Company will notify the Creator before the 15th business day after the Company knows or should reasonably have known of a claim for a loss that the Creator might be obligated to pay. The Company’s failure to give the Creator timely notice does not terminate the Creator’s obligation, except to the extent that the failure prejudices the Creator’s ability to defend the claim or mitigate losses.
16.4. Legal Defense of a Claim
(a) Company’s Control. The Company has control over defending a claim for a loss (including settling it), unless the Company directs the Creator to control the defense.
(b) Direction to Control. If the Company directs the Creator to control the defense, each of the following applies:
(i) The Creator may choose and retain legal counsel.
(ii) The Company may retain its own legal counsel at its expense.
(iii) The Creator will not settle any litigation without the Company’s written consent if the settlement (1) imposes a penalty or limitation on the Company, (2) admits the Company’s fault, or (3) does not fully release the Company from liability.
(c) Good Faith. The Company and the Creator will cooperate with each other in good faith on a claim.
16.5. No Exclusivity. The Company’s rights under this section 16 do not affect other rights that the Company might have.
17. Dispute Resolution
17.1. Litigation Election. Either party may litigate the following type of case or controversy: (1) an action seeking injunctive relief, or (2) a suit to compel compliance with this dispute resolution procedure.
17.2. Negotiation. Each party will give the other a reasonable opportunity to comply before it claims that the other has not met the obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of this agreement or relating to the subject matter of this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “Dispute Notice”).
17.3. Arbitration. If the parties are unable to resolve the dispute through no later than 30 days after receiving a Dispute Notice, the parties will settle any unresolved dispute arising out of or relating to this agreement, or the breach of it, by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable. A single arbitrator will preside over the arbitration and issue a final award on all issues submitted to the arbitrator. The arbitrator may grant whatever relief that would be available in a court at law or in equity, except that the arbitrator will not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Arbitration will take place in New Castle County, Delaware. The parties will bear equally the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case, except the arbitrator will award costs and fees to the Prevailing Party in accordance with section 17.6. Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
17.4. Injunctive Relief. The Creator acknowledges that breach by the Creator of the Creator’s obligations under this agreement could cause irreparable harm for which damages would be an inadequate remedy. If any breach occurs or is threatened, the Company may seek an injunction, a restraining order, or any other equitable remedy, in each case without posting a bond or other security.
17.5. Jurisdiction and Venue. If a party brings any proceeding seeking an injunction, a restraining order, or any other equitable remedy to which that party is entitled under this agreement, that party will bring that proceeding only in the United States District Court for the District of Delaware or in any state court of competent jurisdiction in New Castle County, Delaware, and each party hereby submits to the exclusive jurisdiction and venue of those courts for purposes of any proceeding. Each party hereby waives any claim that any proceeding brought under section 17.5 has been brought in an inconvenient forum or that the venue of that proceeding is improper.
17.6. Recovery of Expenses. In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the Prevailing Party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the Prevailing Party incurs in those proceedings, including legal fees and expenses. For purposes of this section 17.6, “Prevailing Party” means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the Prevailing Party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the Prevailing Party in those proceedings.
17.7. Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of or relating to this agreement. Either party may enforce this waiver up to and including the first day of trial.
17.8. Class Action Waiver. The parties will conduct all proceedings to resolve a dispute in any forum on an individual basis only. Neither the Creator nor the Company will seek to have any dispute heard as a class action or participate in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
17.9. Limited Time to Bring Claims. A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
18.1. Entire Agreement. This agreement, the Terms of Service Agreement, and the applicable Quackle Mobile App End User License Agreement (available at [insert URL for Apple version] or [insert URL for Android version]) constitutes the entire agreement of the parties concerning the subject matter and supersedes all earlier written or oral discussions, negotiations, proposals, undertakings, understandings, and agreements between the parties concerning the subject matter. If any conflict or inconsistency exists between this agreement, the Terms-of-Service Agreement, and the applicable Quackle Mobile App End User License Agreement, this agreement will govern.
18.2. Amendments. The Company may change this agreement on one or more occasions, on condition that changes will not apply to ongoing disputes or disputes arising out of events occurring before the posted changes. The Company will notify the Creator through the Platform or by email of any changes to this agreement. Changes will become effective when posted on this page. It is the Creator’s responsibility to check this page periodically for changes to this agreement. If the Creator continues to use the Platform after any change, the Company will consider the Creator’s continued use as acceptance of the change unless the Creator notifies the Company in writing no later than 15 days after the change. The Company will contact the Creator no later than 15 days after receiving the notice to try to reach a mutually amicable resolution. If the parties are unable to reach a mutually amicable resolution, the Creator’s sole remedy is to terminate this agreement.
18.3. Assignment and Delegation. This agreement is personal to the Creator. The Creator will not assign any of the Creator’s rights or delegate any performance under this agreement. The Company may assign its rights or delegate its performances under this agreement without the Creator’s consent. Any purported assignment of rights or delegation of performance in breach of this section 18.3 is void.
18.4. Waivers. The parties may waive any provision of this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
18.5. Severability. The parties intend as follows:
(a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
(b) that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
(c) that if an unenforceable provision is modified or disregarded in accordance with this section 18.5, then the rest of the agreement will remain in effect as written; and
(d) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
(a) Form. All notices and other communications between the parties will be in writing.
(i) Notice to the Company. The Creator may send notice to the Company by email at email@example.com unless a specific email address is listed on the Platform for giving notice. The Company may change its contact information on one or more occasions by posting the change on the Platform. Please check the Platform for the most current information for sending notice to the Company.
(ii) Notice to the Creator. The Creator consents to receiving any notice from the Company in electronic form either (1) by email to the email address listed in the Creator’s account or (2) by posting the notice on a place on the Platform chosen for this purpose. The Creator may change the Creator’s contact information by updating the contact information in the Creator’s account.
(c) Receipt. The Company will consider an email notice received by it only when the Company’s server sends a return message to the Creator acknowledging receipt. The Company will consider notices sent to the Creator by email received when the Company’s email service shows transmission to the Creator’s email address. All other notices will be effective on receipt by the party to which notice is given, or on the fifth day after posting, whichever occurs first.
18.7. Governing Law. Delaware law, without giving effect to its conflicts of law principles, governs all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement.
18.8. Force Majeure
(a) If a Force Majeure Event prevents a party from complying with any one or more obligations under this agreement, that inability will not constitute a breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party’s inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that Force Majeure Event or (B) develop and keep a reasonable contingency plan to respond to events or circumstances of the same type as that Force Majeure Event, and (3) that party complies with its obligations under section 18.8(c).
(b) For purposes of this agreement, “Force Majeure Event” means, for any party, any event or circumstance, whether or not foreseeable, that was not caused by that party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change in law, or an event or circumstances that results in that party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.
(c) If a Force Majeure Event occurs, the noncomplying party will promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long the noncomplying party expects it to last. From then on, the noncomplying party will update that information as reasonably necessary. During a Force Majeure Event, the noncomplying party will use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.
18.9. No Third-Party Beneficiaries. This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
18.10. Successors and Assigns. This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section 18.10 does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement. Section 18.3 addresses these matters.
18.11. Additional Documents. At the written request of the Company, the Creator will provide the Company, or sign for the Company, any additional documents required to consummate the transactions contemplated by this agreement.
18.12. Electronic Signature. The Creator acknowledges that any affirmation, assent, or agreement the Creator sends through the Platform in response to a prompt binds the Creator. The Creator further acknowledges that when the Creator clicks on an “I agree,” “I consent,” or other similarly worded “button” or entry field using a finger (for touchscreen devices), mouse, keystroke, or other device, this action is the legal equivalent of the Creator’s handwritten signature and binds the Creator in the same way.
18.13. Voluntary Agreement. The Creator has entered this agreement voluntarily and for valid reasons. The Creator acknowledges that the Creator (i) has carefully read this agreement, (ii) discussed it with the Creator’s attorneys or other advisors, (iii) understood all the terms, and (iv) will comply with it. The Creator has relied on the advice of the Creator’s attorneys or other advisors about the terms of this agreement and waives any claim that the terms should be construed against the drafter.
18.14. No Reliance. The Creator acknowledges that in electronically signing this agreement, the Creator does not rely and has not relied on any statement by the Company or its agents, except those statements contained in this agreement.
18.15. Consent to Electronic Communications. By using the Platform, the Creator consents to receiving communications from the Company electronically, including emails and messages posted to the Creator’s account. The Creator acknowledges that all communications that the Company provides to the Creator electronically satisfies any legal requirement that those communications be in writing. If the Creator wishes to withdraw the Creator’s consent to receiving electronic communications from the Company at any time, please notify the Company at firstname.lastname@example.org of the Creator’s withdrawal of consent.
18.16. Feedback. The Company encourages the Creator to give feedback about the Platform or the Platform. But the Company will not treat as confidential any suggestion or idea the Creator gives, and nothing in this agreement will restrict the Company’s right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to the Creator.