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Terms of Service

OTHRSOURCE, LLC

These Terms of Service (these “Terms”) constitute a legally binding agreement between you and OTHRSource, LLC (referred to as the “Company”, “we”, “our” or “us”) governing your use of our services through the OTHRSource Platform (as defined below), the Company’s website (othrsource.com or the “Site”) or other mobile applications (collectively, the “Services”). The platform services provided by Company, the Site and mobile applications together are hereinafter collectively referred to as the “Platform”.

PLEASE NOTE: THESE TERMS CONTAIN A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. 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 THESE TERMS, YOU MAY NOT USE OR ACCESS THE OTHRSOURCE PLATFORM.

Your use of the Platform constitutes your acceptance of and agreement to all of the terms and conditions in these Terms, our Privacy Policy (the “Privacy Policy”) available at http://www.othrsource.com/privacy, and any future community guidelines, policies, and rules, or amendments and additions to these Terms as we may publish from time to time, as well as your compliance with all applicable laws. The Privacy Policy is incorporated by reference into these Terms and together form and are hereinafter referred to as this “Agreement”.

We may update or change these Terms, from time to time, and recommend that you review these Terms on a regular basis. If we make changes to these Terms, the revised version of these Terms will be posted on our Website. You understand and agree that your continued use of our Services after these Terms have changed constitutes your acceptance of these Terms, as revised. Without limiting the foregoing, if we make a change to these Terms that materially impacts your use of our Services, we may post notice of any such change on our Website, notify you as you login to use our Service, and/or email you notice of any such change to the email address submitted in connection with your account.

Our Services

OTHRSource provides a platform by which companies and other organizations (each, a “Manufacturer”) can post opportunities (each, an “Opportunity”) through the OTHRSource application (the “OTHR App”) for registered users of the Services (“Merchandisers”) to accept OPPs, as an independent contractor, to perform merchandising services for the Manufacturer, at various locations where the Manufacturer’s products are available for sale, including, but not limited to, arranging, cleaning, presenting, product replenishment, out of stock identification, reorder processing and otherwise ensuring that the Manufacturer’s products are being marketed and promoted correctly at specific retail locations designated by a Manufacturer. As used herein, the term “User” refers to any user of the Platform, including both Manufacturers and Merchandisers, as the context requires.

Subject to your compliance with these Terms, the Company grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Platform on your personal devices solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, non-commercial use. Any rights not expressly granted herein are reserved by the Company.

Merchandising/Brand Help Opportunities

Upon accepting these Terms, a User can use the OTHR App to find, accept, perform, submit and be compensated for completed and validated Opportunities. The first User to accept an Opportunity has the ability to complete the tasks required to be paid the stated Merchandising Fee. In the event that the Merchandiser/Brand Helper fails to properly complete the requirements for an Opportunity, as further defined herein, the Merchandiser/Brand Helper will not be paid a Merchandising Fee.

These tasks, collectively called “Merchandising”, usually involve observing, organizing, cleaning, replenishing and arranging the Manufacturer’s item(s) on a retailer’s shelves and answering certain questions about stocking levels, product placement, pricing, promotion and other items identified by the Manufacturer. When a User submits a completed OPP (a “Submission”) for approval, the Company validates (i) that the User was in fact at the required location(s) for the Submission and (ii) that the tasks required for the Merchandising were properly completed. If a User accepts an Opportunity, but fails to complete it within three (3) hours, or a different time limit determined by the Company, or if the User submits an incomplete or otherwise insufficient or improper Submission based on the Manufacturer’s and the Company’s mutually agreed upon requirements for the Opportunity, the Company will reject the Submission and the Opportunity will immediately become available for another User to accept.

Merchandising Fees / Payments

Manufacturer Charges

Users who are Manufacturers, agree to pay the amounts charged for their use of the Platform and Services (“Charges”). The Company has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms to our Website, or by specific contracts with individual Manufacturers. Pricing may vary based on the type of Opportunities that the Manufacturer wishes to present, and the services involved. Users who are Manufacturers are responsible for reviewing the pricing terms and shall be responsible for all Charges incurred under their User account regardless of awareness of such Charges.

All Charges may be facilitated through a third-party payment processing service (e.g., Stripe, Inc., or Braintree, a division of PayPal, Inc.), or another form of payment accepted by the Company, in its discretion. The Company may replace its third-party payment processing services without notice to Users. Charges shall only be made through the Platform.

All Charges are non-refundable. This no-refund policy shall apply at all times regardless of a User’s decision to terminate usage of the Platform, any disruption to the Platform or Services, or any other reason whatsoever.

Merchandiser/Brand Helper Payments

In connection with the posting of an Opportunity, the Company will list the associated fees which will be payable to any Merchandiser who successfully completes the Opportunity (the “Merchandising Fees”). When a Submission is reviewed and approved by the Company in its sole discretion (an “Approved Submission”), the Company will automatically begin processing payment (through its payment processor) of the agreed upon Merchandising Fee to the Merchandiser.

Users who are Merchandisers, will receive payment for their provision of Merchandising services. All Merchandising Fee payments are subject to a Company Commission, discussed below. The Company will process all payments due to the Merchandisers through its third-party payments processor (e.g., Stripe, Inc., or Braintree, a division of PayPal, Inc.). The Company may replace its third-party payment processing services without notice to Users. Merchandising Fees shall only be paid through the Platform.User acknowledges and agrees that such amounts shall not include any interest and will be net of any amounts that the Company is required to withhold by law.

Users may be required to register with the Payment Service Provider retained by the Company (the “PSP”), agree to Terms of Service of the PSP and go through a vetting process at the request of the PSP to set up their account with the PSP. By accepting these Terms, each Merchandiser agrees that they have downloaded or printed, and reviewed and agreed to the PSP Agreement. Please note that Company is not a party to the PSP Agreement and that you, the PSP and any other parties listed in the PSP Agreement are the parties to the PSP Agreement and that the Company has no obligations or liability to any Merchandiser under the PSP Agreement

To help prevent fraud and safeguard User information from the risk of unauthorized access, the Company and/or the PSP may validate an account before activation. As part of the account validation, a very temporary charge is placed on account associated with the User and then refunded within 1-3 business days. Due to the difference in PSP and credit card issuer requirements, this temporary charge may vary in amount.

In exchange for permitting you to offer your services through the Platform and marketplace as a Merchandiser, you agree to pay the Company (and permit the Company to retain) a fee based on each transaction in which you provide services (the “Company Commission”). The amount of the applicable Commission will be communicated to you in a Commission schedule through the Merchandiser portal on the Company’s Website. The Company reserves the right to change the Company Commission at any time in the Company’s discretion, and the Company will provide you with notice in the event of such change. Continued use of the Platform after any such change in the Company Commission calculation shall constitute your consent to such change.

The Company reserves the right to adjust or withhold all or a portion of the Merchandising Fee if it believes that (i) you have attempted to defraud or abuse the Company or Company’s payment systems, (ii) it is necessary or appropriate in order to resolve a Manufacturer complaint (e.g., the Submission was not approved by the Company or Merchandiser does not represent the Company in a professional manner while Merchandising), and/or (iii) the Merchandiser has not successfully completed an Opportunity or the Submission was not approved by the Company. The Company’s decision to adjust or withhold the Merchandising Fee in any way shall be exercised in a reasonable manner.

You understand that it is solely your obligation to pay all State and Federal income taxes and any other taxes that are owed by you as a result of your receipt of Merchandising Fees. Such fees likely constitute taxable “ordinary income” under applicable State and Federal laws. If you are uncertain about your tax obligations, you should contact a tax advisor. You will not receive any tax documentation in the form of an IRS Form 1099 or other type of form or notice unless you earn Merchandising Fees in excess of the annual minimum amount necessary to mandate that you receive a Form 1099, currently $600. If you receive Merchandising Fees in excess of $600, we will require you to provide your physical mailing address so you can be sent a Form 1099 (and any other applicable tax forms).

Referrals and Promotional Opportunities

The Company may, in its sole discretion, create referral and/or promotional opportunities (“Promotions”) in which all or a portion of Users may participate, subject to any additional terms that the Company establishes. You agree that Promotions: (i) must only be participated in by the intended audience and for the intended purpose, and in a lawful manner; (ii) may be discontinued by the Company at any time for any reason without liability to the Company; and (iii) may only be participated in compliance with the specific terms that the Company establishes for such Promotion. The Company reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or participation in a Promotion by any User in the event that the Company determines or believes that the use of the referral system or Promotion was in error, fraudulent, illegal, or otherwise in violation of these Terms.

No Agency, Employment or Contractor Relationship

The Company is engaged by each Manufacturer, pursuant to separate terms and conditions, solely to post Opportunities through the Platform and to facilitate Submissions (and approval thereof), and payment of Merchandising Fees. The Company is not a retailer of any products offered by the Manufacturers and the Company is not an agent or contractor for any Manufacturer.

As a User, you acknowledge and agree that the relationship between the parties under this Agreement is solely that of independent contracting parties. You and the Company expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and the Company; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind the Company, and you undertake not to hold yourself out as an employee, agent or authorized representative of the Company. As an independent contractor, you are not entitled to any salary or benefits from the Company.

The Company does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Merchandising services, or your acts or omissions. You retain the sole right to determine when, where, and for how long you will utilize the Platform. You retain the option to accept or to decline or ignore an Opportunity via the Platform, or to cancel an accepted request for Merchandising services via the Platform, subject to the Company’s then-current cancellation policies. The Company has no right to require you to wear a uniform or any other clothing displaying the Company’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Merchandising services or otherwise engage in other business or employment activities.

The Company’s responsibility to you is limited solely to processing Merchandising Fee payments earned by you as described in these Terms, and the Company shall have no liability for the acts, omissions or negligence of any User. The Company may discontinue or alter the Services at any time in its own discretion, and it may block your access to the Services if it believes you have repeatedly failed to follow the instructions for the Services or if it believes you have used the Services inappropriately in any way.

The Company shall not be liable or responsible for any injuries you sustain in performing Merchandising services related to Opportunities, including slips or falls while visiting locations to perform Merchandising, or while you are traveling to the same. You also accept the possibility that you may walk or drive to a retailer to perform Merchandising, but then find that another User has accepted the same Opportunity prior to your arrival at the retailer, and the Company shall have no liability to you for such missed Opportunities or for any temporary interruption or permanent termination of the Services.

If you submit Submissions deemed by the Company to be incomplete, insufficient, fraudulent or otherwise inappropriate, the Company may prohibit you from using the OTHR App or may limit the number and/or types of Opportunities you are presented by the Platform. If you do not provide your physical mailing address and other required information once you have earned more than $600 in Merchandising Fees in any calendar year, the Company will block your ability to accept additional Opportunities until the Company receives a valid address so that the Company may provide you with an IRS Form 1099 for your reporting of taxable income.

Network Access and Devices; Related Expenses

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services, and the OTHR App and any updates thereto. The Company does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

You further agree that any expenses incurred by you in submitting Submissions, such as data or internet charges imposed by your data or internet providers, or traveling to perform Merchandising work related to Opportunities, shall be your sole responsibility.

Ownership of Related Content

You agree that all pictures, answers, texts and other information and data submitted by you in the course of making Submissions through the Services (collectively, “Content”) immediately become the property of the Company and the Company alone shall own all right, title and interest in any such Content and shall be free to do with it as it pleases, including sharing it with Manufacturers and/or sharing it or selling it in any form and in any manner whatsoever with or to any third party. You understand and agree that you will not have access to the content included in your Submissions once they have been submitted.

This transfer of your rights in and to any Content submitted by you includes all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual and industrial property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such Content, in whole or in part, in all media formats and channels now known or hereafter devised (including on the Platform, on third party websites, on our broadband and wireless platforms, products and services, on physical media) for any and all purposes including, without limitation, entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity.

By submitting Content through the Services, you represent and warrant that the Content and your communication thereof conform to these Terms and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Submission in all manners contemplated by these Terms.

You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act which might be necessary to confirm the grant of rights, consents, agreements, assignments and waivers set forth in these Terms.

To the extent any “moral rights”, “ancillary rights”, or similar rights (“Moral Rights”) in or to the Content exist and are not exclusively owned by us and to the extent you are able to do so under applicable law, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives and other authorized users, and you shall procure the same agreement not to enforce from any others who may possess such rights. To the extent such an agreement is unenforceable, you hereby give a Moral Rights Consent. To the extent any other person has Moral Rights in or to the Content, you must obtain a Moral Rights Consent from that person and provide it on request to us. “Moral Rights Consent” means a waiver of moral rights to the maximum extent permitted by applicable law and an unconditional consent to any act or omission in relation to the Content by or on our behalf or any licensee or subsequent owner of copyright in the Content, including an act or omission which would, but for these terms of use, infringe your moral rights.

User Representations and Warranties

To use and/or register for our Services you must be: (a) at least eighteen (18) years of age, (b) be otherwise legally able to form a binding contract with us, and (c) cannot be a person barred from receiving our Services under the laws of the United States.

You further represent and warrant that you will fulfill the commitments you make to Manufacturers through the Platform, including receiving payment through the Platform, communicating clearly and promptly, being present and/or available at the times and places you agree upon, as the case may be, and only utilizing the third party payment processing system specified or approved by us to make or receive payment for Merchandising services provided. You also represent and warrant that you will act professionally and responsibly in your interactions with other Users, Merchandisers and all members of the public (including store owners, employees and customers) with whom you interact in connection with your provision of Merchandising services. You additionally represent and warrant that you will provide timely, high quality services to Manufacturers, you will only offer and provide services for which you have the necessary skills and expertise and you will provide the services safely, and, if required by the Company or a Manufacturer, carry the proper and customary levels of insurance coverages applicable to the services you perform.

General Limitations on Use

You agree that you will NOT use the Platform, the OTHR App, or the Services to:

· Act, in any manner, which is inconsistent with these Terms or other Company rules, or is otherwise unlawful;

· Upload, download, post, email, transmit, store or otherwise make available any Content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable;

· Stalk, harass, threaten or harm another;

· Pretend to be anyone, or any entity, you are not — you may not impersonate or misrepresent yourself as another person, entity or as a Company employee;

· Engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;

· Upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware; or

· Interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon).

Violations of any of these Terms may result in termination of your User Account. We reserve the right to modify these limitations on use and rules of conduct at any time.

Limitations on Use of Company Content

You agree to use the Services only for the purposes as permitted by these Terms and any applicable law, or generally accepted practice in the applicable jurisdiction. You may not use the Services for commercial purposes or in any way that is unlawful, or harms us or any other person or entity. All information, materials, functions and other content (“Company Content”) contained on the Services are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, slogans, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees.

We may change the Services or delete Company Content or features at any time, in any way, for any reason. Except as we specifically agree in writing, no Company Content from the Services may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Services, including as part of a derivative work, except that where the Services are configured to enable the download of particular Company Content. Using our Company Content for any other purpose is a violation of our copyright and other proprietary rights and is strictly prohibited.

YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THESE TERMS SHALL HAVE THE EFFECT OF TRANSFERRING THE OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS, SLOGANS, SERVICE MARKS, TRADE NAMES, TRADE DRESS OR OTHER PROPRIETARY RIGHTS IN THE SERVICES OR COMPANY CONTENT OR ANY PART THEREOF TO YOU OR ANY THIRD PARTY NOR TO AUTHORIZE YOU TO CREATE DERIVATIVE WORKS BASED ON THE COMPANY CONTENT.

User Accounts

When you accept these Terms and complete our sign up process, you will have a User Account.

In order to create your User Account you will be required to select a password. Please choose a strong password and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further understand that you are solely responsible and liable for any activities that occur under your User Account. If you suspect or become aware of any unauthorized use of your User Account please contact us. You further acknowledge and agree that our Services are designed and intended for personal use on an individual basis and you should not share your User Account and/or password details with another person.

You agree that all information you provide to the Company during the sign up process (“Sign-up Data”) will be true, accurate, complete and current information, and that you shall maintain and update the Sign-up Data as needed throughout your term to keep it accurate and current. Failure to provide accurate, current and complete Sign-up Data may result in the suspension and/or termination of your User Account.

If you have concerns regarding your User Account, our handling of any Submissions made by you or any payment or non-payment of any Merchandising Fee, please contact us at this email address support@othrsource.com and we will endeavor to respond to your email within two (2) business days.

Access to Your Account and Content

You acknowledge and agree that we may access, use, preserve and/or disclose your account information and Content if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce these Terms, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of the Company, its users or the public as required or permitted by law.

Termination

You may terminate your account and/or stop using the Service at any time. Please note that, in case of any termination by you, the Company will still be required to retain certain information regarding your use of the Platform and receipt of any Merchandising Fees for tax reporting and any other purposes required by applicable laws.

We may, at any time, under any circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Cause for such termination shall include, but shall not be limited to: (a) violations of these Terms or any other policies or guidelines that are referenced herein and/or posted on the Services; (b) a request by you to cancel or terminate your account; (c) discontinuance or material modification to the Service or any part thereof; (d) a request and/or order from law enforcement, a judicial body, or other government agency; (e) provision of the Service to you becoming unlawful; (f) unexpected technical or security issues or problems; or (g) your participation in fraudulent or illegal activities. Any such termination or suspension shall be made by us in our sole discretion and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service.

Privacy Policy

You understand that by using the Service, you consent and agree to the collection and use of certain information about you and your use of the Service in accordance with our Privacy Policy. You further consent and agree that we may collect, use, transmit, process and maintain information related to your account, and any devices registered thereunder, for purposes of providing the Service, and any features therein, to you. Information collected by the Company when you use the Service may also include technical or diagnostic information related to your use that may be used by the Company to maintain, improve and enhance the Service. For more information please read our full privacy policy.

Disclaimer of Warranties

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, THE COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

Limitations of Liability

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICES.

Indemnification

You agree to defend, indemnify and hold the Company, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your performance of Merchandising services, or your Submissions; (b) your use of the Services; (c) any violation by you of these Terms; or (d) your violation of any rights of another. This obligation shall survive the termination or expiration of these Terms and/or your use of the Services. You acknowledge that you are responsible for all use of the Services using your account, and that these Terms apply to any and all usage of your User Account. You agree to comply with these Terms and to defend, indemnify and hold harmless the Company from and against any and all claims and demands arising from usage of your User Account, whether or not such usage is expressly authorized by you.

Copyright Complaints and Copyright Agent

The Company 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 Platform infringe upon your copyright or other intellectual property right, please send the following information to the Company’s Copyright Agent at copyright@othrsource.com:

· A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Platform where the material you claim is infringed is located. Include enough information to allow Company 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 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 or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

Confidential Information

You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever.

The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical, financial, strategic and other proprietary and confidential information relating to Company’s business, operations and properties, including information about Company’s Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.

Notices

The Company may provide you with notices regarding the Service, including changes to these Terms, by posting such notice through our Platform, and any combination of email to your email address reflected on your account (and/or other alternate email address if provided), by telephone or text message to any phone number provided in connection with your User account, or by regular mail to any address connected with your User account. Any such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting, or 12 hours after sending (if sent by email or telephone).

You may give notice to the Company, with such notice deemed given when received by the Company, at any time, by first class mail or pre-paid post to our principal business address, or by registered agent for service of process.

Governing Law

Except to the extent expressly provided in the following paragraph, these Terms and the relationship between you and the Company shall be governed by the laws of the State of Georgia, excluding its conflicts of law provisions.

Unless you and we agree otherwise, in the event that the below arbitration provisions are deemed or found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and the Company must be resolved exclusively by a state or federal court located in Fulton County, Georgia. You and the Company agree to submit to the personal jurisdiction of the courts located within Fulton County, Georgia for the purpose of litigating all such claims or disputes.

Arbitration Agreement

Except in cases where the Company believes you have engaged in fraud, other illegal behavior, or any other form of willful and serious misconduct, you agree that any and all disputes or claims that have arisen or may arise between you and the Company relating in any way to or arising out of this or previous versions of the Terms or your use of or access to Services shall be resolved exclusively through final and binding arbitration, rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.

YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER COMPANY USERS.

The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this agreement to arbitrate, any part of it, or of the Terms, including, but not limited to, any claim that all or any part of the agreement to arbitrate or Terms is void or voidable.

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this agreement to arbitrate.

The arbitration shall be held in Fulton County, Georgia or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or the Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and the Company, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or the Company, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Georgia, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Company users, but is bound by rulings in prior arbitrations involving the same Company user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this agreement to arbitrate.

With the exception of any of the provisions in the paragraphs above, if an arbitrator or court decides that any part of these provisions requiring arbitration is invalid or unenforceable, the other provisions regarding agreement to arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in the paragraphs above is invalid or unenforceable, then the entirety of the above provisions regarding arbitration shall be null and void. The remainder of these Terms will continue to apply.

General

These Terms constitute the entire agreement between you and the Company, govern your use of the Services and completely replace any prior agreements between you and the Company in relation to the Services. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of the Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. You agree that any claim or cause of action arising out of or related to these Terms or the use of the Service must be filed within one (1) year after the cause of action arose or be forever barred.

Changes to this Agreement, our Services and the Platform

The Company reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of these Terms (including the Privacy Policy) and review, improve, modify or discontinue, temporarily or permanently, the OTHR App or the Platform or any content or information through the OTHR App or the Platform at any time, effective with or without prior notice and without any liability to the Company. The Company will endeavor to notify you of material changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the OTHR App and the Platform. Your continued use of the OTHR App or the Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. The Company may change, modify, suspend, or discontinue any aspect of the OTHR App or the Platform at any time without notice or liability. The Company may also impose limits on certain features or restrict your access to parts or all of the OTHR App or the Platform without notice or liability.

Last Updated February 15, 2018