Updated December 1, 2024
INDEPENDENT CONTRACT TERMS & CONDITIONS
1. ACCOUNTABILITY 1.1 No-showing to an event that you have confirmed to, hurts the client, your fellow staff from procuring future work, yourself and Hot Bartenders who has worked extremely hard to get you this work. Notarized documentation/proof for extreme situations such as sickness, accident and family emergencies will be needed as an exception. Without documentation you agree that you are responsible to repay Hot Bartender lost revenue(s). Hot Bartenders will pursue to our fullest abilities to recover lost wages and damages for a non excused no-show and will hold the staff responsible for lost revenue(s) and any additional expenses that might be incurred by client if payment is not received.
1.2 Arriving late (past your start time) will incur a late rate which is, $100 for dancers and $15 for all other service staff. This is intended to deter lateness which is unprofessional and harmful to everyone including yourself financially.
IMPORTANT If there is a situation where you will be late you need to call the office at 310-256-1246 immediately. 1.3 Leaving before an event is complete has the same harmful effect as 1.1 and 1.2 as noted above. All events are deemed as open ended, which means that when you accept an event booking you are confirming that you are available to work a total of up to ten (10) hours. If you leave before an event is complete you agree to pay $150 charge that will be deducted from any outstanding payments. Any additional owing will be invoice to you with a 21 day grace period to pay. After 21 days a 2% or $25 late fee will be assessed. If amount is not paid within 42 days we will send to collection.
2. DRINKING 2.1 Consumption of alcohol at the event and/or arriving to the event under the influence of alcohol or drugs will result in immediate dismissal and no pay. Drinking is strictly prohibited.
3. SOLICITATION 3.1 Hot Bartenders work very hard to acquire our clients and to get you work. Soliciting or accepting solicitation from Hot Bartender clients for any services Hot Bartenders offers will result in immediate dismissal and no pay and removal from our agency and all sister agencies we are affiliated with. By working any Hot Bartender events, you agree to refrain from soliciting or accepting solicitations of any and all services Hot Bartender provides
4. FRATERNIZATION 4.1 Staff are prohibited from fraternizing or becoming romantically involved with Hot Bartender's clients when their personal relationships create an actual conflict of interest, cause disruption, create a negative or unprofessional work environment, present problems regarding supervision, work performance, attitude, safety, security or morale, or cause other work related problems. Fraternization will result in immediate dismissal and no pay.
5. COMPENSATION 5.1 In full consideration for the completion of the independent contractor services as indicated in the booking details via email. Hot Bartenders shall pay the Independent Contractor as follows; An agreed upon rate that is indicated in each booking detail email. When independent contractor accepts the booking by confirming to the booking email they are accepting the rate offered. 5.2 Agreeing to or solicitation to receive payment for services directly by the client is theft and will be pursued to the fullest extent of the law. Payment does not come from the client and talent my only accept gratuity if offered. 5.3 Hot Bartenders shall pay within 14 business days after the event date worked by Chase QuickPay or if requested by staff, via mail to the address indicated in your W(. If you move it is your responsibility to send an email to the Company with your new address. C. Independent Contractor acknowledges and agrees that, except as provided in this Section 2, it shall not be entitled to, and the Company shall not be obligated to pay, any monies or other compensation for the Services provided and rights granted under this Agreement.
6. GRATUITY 6.1 If gratuity is added to credit card, $5 or 6% of gross amount of gratuity, whichever is most, will be deducted to cover merchant fees and processing time. Your gratuity will be added along with your final hours as one payment.
6.2 If you are working a shared bar then split the tips evenly with your workmates. Gratuity is at the client’s discretion, however we always kindly suggest that they tip our bartenders out at the end of the evening if a tip jar is not allowed. If a bar back is assigned to your bar and is working hard for you a least a 15% from your total tips is the standard rate suggestion.
7. ENGAGEMENT 7.1 The Company hereby engages the Independent Contractor to render the services, according to the schedule and as described in the annexed Exhibit A (collectively, the "Services"). In the event of any conflict between this Agreement and the annexed Exhibit A, this Agreement shall control.
8. ASSURANCE OF SERVICES 8.1 Independent Contractor will assure that the following individuals (the "Key Employees") will be available to perform, and will perform, the Services hereunder until they are completed. B. The Key Employees may be changed only with the prior written approval of the Company.
9. INDEPENDENT CONTRACTOR RELATIONSHIP 9.1 The Independent Contractor agrees to perform the Services hereunder solely as an Independent Contractor. The parties to this Agreement recognize that this Agreement does not create any actual or apparent agency, partnership, franchise, or relationship of employer and employee between the parties. The Independent Contractor is not authorized to enter into or commit the Company to any agreements, and the Independent Contractor shall not represent itself as the agent or legal representative of the Company. B. Further, the Independent Contractor shall not be entitled to participate in any of the Company's benefits, including without limitation any health or retirement plans. The Independent Contractor shall not be entitled to any remuneration, benefits, or expenses other than as specifically provided for in this Agreement. C. The Company shall not be liable for taxes, Worker's Compensation, unemployment insurance, employers' liability, employer's FICA, social security, withholding tax, or other taxes or withholding for or on behalf of the Independent Contractor or any other person consulted or employed by the Independent Contractor in performing Services under this Agreement. All such costs shall be Independent Contractor's responsibility.
10. PROPRIETARY RIGHTS 10.1 The Independent Contractor acknowledges that it has no right to or interest in its work or product resulting from the Services performed hereunder, or any of the documents, reports or other materials created by the Independent Contractor in connection with such Services, nor any right to or interest in any copyright therein. The Independent Contractor acknowledges that the Services and the products thereof (hereinafter referred to as the "Materials") have been specially commissioned or ordered by the Company as "works made-for-hire" as that term is used in the Copyright Law of the United States, and that the Company is therefore to be deemed the author of and is the owner of all copyrights in and to such Materials. B. In the event that such Materials, or any portion thereof, are for any reason deemed not to have been works made-for-hire, the Independent Contractor hereby assigns to the Company any and all right, title, and interest Independent Contractor may have in and to such Materials, including all copyrights, all publishing rights, and all rights to use, reproduce, and otherwise exploit the Materials in any and all formats or media and all channels, whether now known of hereafter created. The Independent Contractor agrees to execute such instruments, as the Company may from time to time deem necessary or desirable to evidence, establish, maintain, and protect the Company's ownership of such Materials, and all other rights, title, and interest therein. C. Notwithstanding the foregoing, the Company acknowledges that the Independent Contractor's ability to carry out the work required is heavily dependent upon the Independent Contractor's past experience in the industry and in providing similar services to others and they expect to continue such work in the future. Subject to the confidentiality provisions of Section 6 below, generic information communicated to the Company in the course of this project either orally, in the form of presentations, or in documents that report such general industry knowledge is not subject to the terms of A & B above. D. You give the Company permission to use your images and video solely to promote and market the Company services in a professional and respectful manner in all media form including website, banners, print, media, billboards, etc.
11. CONFIDENTIALITY 11.1 In connection with the performance of Services hereunder, the Independent Contractor may be exposed to confidential and proprietary information of the Company, whether or not so identified (including without limitation this Agreement). All such confidential and proprietary information shall be subject to the terms and conditions of the Non-Disclosure Agreement, as annexed in Exhibit B. B. The Independent Contractor shall not, without the prior written consent of the Company, use the Company's name in any advertising or promotional literature or publish any articles relating to the Company, this Agreement, or the Services and shall not otherwise refer to the retention of Independent Contractor to render consulting services hereunder.
12. WARRANTIES AND INDEMNIFICATION 12.1 The Independent Contractor represents and warrants that: i) The Services shall be performed in accordance with, and shall not violate, applicable laws, rules or regulations, and standards prevailing in the industry and the Independent Contractor shall obtain all permits or permissions required to comply with such laws, rules or regulations; ii) The service shall be presentable in accordance with generally applicable standards in the industry; iii) The Independent Contractor has full power and authority to enter into and perform its obligations under this Agreement; this Agreement is a legal, valid, and binding obligation of Independent Contractor, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors' rights generally and equitable remedies); entering into this Agreement will not violate the Charter or By-laws of Independent Contractor or any material contract to which it is a party; iv) The Independent Contractor will perform the Services in accordance with the specifications established by the Company. B. The Company represents and warrants that it has full power and authority to enter into and perform its obligations under this Agreement; this Agreement is a legal, valid, and binding obligation of the Company, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors' rights generally and equitable remedies); entering into this Agreement will not violate the Charter or By-laws of the Company or any material contract to which it is a party. C. The Independent Contractor shall comply with all of the Company's standards and procedures when working on-site at the Company, including without limitation, standards relating to security. D. The Company shall not be liable for injury or death occurring to the Independent Contractor or any of its employees or other assistants in the course of performing this Agreement. E. The Independent Contractor hereby indemnifies and holds harmless the Company, its subsidiaries, and affiliates, and their officers and employees, from any damages, claims, liabilities, and costs, including reasonable attorney's fees, or losses of any kind or nature whatsoever ("Loss") which may in any way arise from the Services performed by the Independent Contractor hereunder, the work of employees of the Independent Contractor while performing the Services of the Independent Contractor hereunder, or any breach or alleged breach by Independent Contractor of this Agreement, including the warranties set forth herein. The Company shall retain control over the defense of, and any resolution or settlement relating to, such Loss. The Independent Contractor will cooperate with the Company and provide reasonable assistance in defending any such claim.
13. RELEASE, WAIVER OF LIABILITY AND COVENANT NOT TO SUE 13.1 The Independent Contractor acknowledges that he/she is responsible for any medical or other costs arising out of any bodily injury or property damage sustained while providing services as an independent contractor for the Company. The Independent Contractor certifies that he/she has adequate insurance coverage, including health and accident, for any injuries that might be sustained while working for The Company. The Independent Contractor further covenants and agrees that he/she will not sue The Company, The owner of The Company, its members individually or any clients of The Company for any claim for damages, for bodily injury or other, arising while performing any and all services for The Company as an Independent Contractor.
14. TERM AND TERMINATION 14.1 A. The term of this Agreement shall commence on the date hereof and shall continue until the Independent Contractor satisfactorily completes performance of the Services (hereinafter the "Term"). B. This Agreement may be terminated: i) by either party upon fifteen (15) days prior written notice if the other party breaches or is in default of any obligation hereunder and such default has not been cured within such fifteen (15) day period ii) by the Company at any time during the Term for any reason (or no reason) upon ten (10) days written notice. C. Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting, directly or indirectly, from cancellation of event, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation or any causes beyond the control of such party. D. Upon termination by either party, Independent Consultant shall provide to Company any and all copies, in whole or in part, of the Materials (as they then exist) and any and all tangible materials the Company provided to the Independent Consultant in connection with this Agreement.
15. DAMAGES AND REMEDIES 15.1 In the event of termination of this Agreement by the Company pursuant to Section 9.B (i), the Company shall have all remedies available to it at law and in equity. Any and all Materials prepared for and/or delivered to the Company prior to termination shall remain the property of the Company. B. In the event of termination pursuant to Section 9.B (ii), and provided that Independent Contractor is not in material breach of its obligations hereunder, the Independent Contractor shall be entitled to keep all monies already paid pursuant to Section 2 and the Company's sole obligation shall be to pay Independent Contractor the amount due for Services already acceptably performed and Materials already accepted, pro rata. In no event shall the Company be liable for any lost profits or consequential, incidental or special damages. C. The Independent Contractor waives any and all right to injunctive relief in the event of any dispute with the Company, and the Independent Contractor's sole remedy in such a dispute shall be at law.
16. GENERAL TERMS 16.1 This Agreement shall be governed and construed in accordance with the laws of the State of California applicable to contracts made and fully performed therein, and the state and federal courts located in Los Angeles shall have exclusive jurisdiction of all suits and proceedings arising out of or in connection with this agreement. Both parties hereby submit to the jurisdiction of said courts for purposes of any such suit or proceeding, and waive any claim that any such forum is an inconvenient forum. B. Any notices to either party under this Agreement shall be in writing and delivered by hand or sent by nationally recognized messenger service, or by registered or certified mail, return receipt requested, to the address set forth above or to such other address as that party may hereafter designate by notice. Notice shall be effective when received, which shall be no greater than one (1) business day after being sent by a nationally recognized messenger service or three days after being sent by mail. C. The Company may freely assign this Agreement, in whole or in part. The Independent Contractor may not, without the written consent of the Company, assign, subcontract, or delegate its obligations under this Agreement, except that the Independent Contractor may transfer the right only to receive any amounts which may be payable to it for performance under this Agreement, and then only after receipt by the Company of written notice of such assignment or transfer. This Agreement shall be binding upon and inure to the benefit of the parties' successors and assigns. D. The waiver by either party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any subsequent or other breach or violation. E. Following the expiration or termination of this Agreement, whether by its terms, operation of law, or otherwise, the terms and conditions set forth, as well as any term, provision, or condition required for the interpretation of this Agreement or necessary for the full observation and performance by each party hereto of all rights and obligations arising prior to the date of termination, shall survive such expiration or termination. F. This Agreement represents the entire Agreement between the parties. The Agreement may not be amended, changed, or supplemented in any way except by written Agreement signed by both parties.
EXHIBIT A The following describes the Services to be performed, any materials that are to be delivered, and the schedule for delivery as described below: Allow time when traveling to events for L.A. traffic, parking, checking, changing if need and finding your work place. Please show up 15 min early but do not enter the premises anytime before that.
17 NON-DISCLOSURE AGREEMENT 17.1 In consideration of disclosure of Confidential Information, the parties agrees as follows: 1. "Confidential" or "Proprietary" information shall mean the disclosing party information, software, Documentation or products in which the disclosing party claims a proprietary interest, related trade secrets, methods of expression, processes, the disclosing party trademarks and copyrights, and all materials labeled confidential or trade secret or which the receiving party is advised prior to disclosure are confidential or proprietary. 2. "Derivative Works" shall mean software and other products based on preexisting software or products, such as a revision, compilation, translation, modification, abridgment, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that would constitute copyright infringement or other infringement of proprietary rights of others therein if prepared without the consent of the copyright proprietor of the pre-existing work. 3. "Documentation" shall mean and include all written explanations, in hard copy or machine readable format, prepared by disclosing party to describe its products, services or other works. 4. The receiving party shall hold and maintain Confidential Information in strictest confidence and in trust for the sole and exclusive benefit of disclosing party. 5. The receiving party hereby recognizes the disclosing party’s proprietary interest in its Confidential or Proprietary information, software and products, Derivative Works and Documentation. The receiving party agrees not to communicate, provide, disclose, transfer or otherwise make available during the term of this Agreement or any time thereafter, any information relating to the disclosing party’s trade secrets or Confidential Information which the receiving party may acquire or is disclosed to the receiving party under this Agreement, unless previously authorized in writing by the disclosing party. The restrictions contained herein shall not apply to (a) any information that is in the public domain through wrongful act of the receiving party, (b) any information that is disclosed to the receiving party by a third party having legitimate possession thereof and the unrestricted right to make such disclosure, (c) any information that receiving party can demonstrate was within its legitimate possession without any obligation to keep confidential prior to the time of disclosure under this Agreement, or (d) any information independently developed by the receiving party where the receiving party can establish that the development was accomplished without access to the disclosing party's information. 6. For a period of 3 years from the termination of this Agreement, the receiving party shall not disclose any information it receives from the disclosing party that is orally disclosed, or that is in written or visual form and which is marked Proprietary, Confidential, or comparable legend, such as "Company Strictly Private" or "Company Internal Data" to any third party, except upon on a need to know basis, with the prior written approval from the disclosing party, and where such other party has executed a nondisclosure agreement with the receiving party that is in substantial conformity with this agreement, but which in no event provides less protection to the disclosing party than under this Agreement. The receiving party shall use the same degree of care to avoid disclosure or use of the Proprietary Information as the receiving party employs with respect to its own proprietary information of like importance. 7. The receiving party acknowledges and agrees that any disclosure or misappropriation of any of the Confidential or Proprietary Information in violation of this Agreement may cause the disclosing party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the disclosing party shall have the right to apply to a court of competent jurisdiction for any order restraining any such further disclosure or misappropriation and for such other relief as may be appropriate. Such right of the disclosing party is in addition to remedies otherwise available to the disclosing party at law or in equity. 8. At the termination of the obligations under this Agreement, or upon the written request of the disclosing party the receiving party shall either return to the disclosing party all confidential and Proprietary Information, Derivative Works and Documentation received by the receiving party or the receiving party shall destroy such materials and all copies, and said destruction shall be certified in writing by officer of the receiving party. 9. If any provision of this Agreement as applied to either party or to any circumstance, shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, unless such court decision defeats the purpose of this Agreement, the same shall in no way affect (to the maximum extent permissible by law) any other provision under circumstances different from those adjudicated by the court, or the validity or enforceability of this Agreement as a whole. 10. Neither party may assign any rights nor delegate any duties under this Agreement without the other party’s prior written consent, and any attempt to do without that consent shall be void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. 11. This Agreement terminates five (5) years from the Effective Date. 12. This Agreement is entered into in the State of California and will be governed and construed according to the laws of the State of California.
18. NON-COMPETITION 18.1 To protect the Confidential Information after having worked with Hot Bartenders in any capacity, and for a total of 5 years after working with / for Hot Bartenders in any capacity, you shall not:
Plan for, acquire any financial interest in, or perform services for (as an employee, consultant, officer, director, independent contractor, principal, agent or otherwise) any business what would require you to use or disclose any Confidential Information; or perform services (as an employee, consultant, officer, director independent contractor, principal, agent, or otherwise) that are similar to your current duties or responsibilities for any person or entity that, during the term of this Agreement, engages in any business activity in which you is then engages or proposes to be engages an that conducts its business in the following territory: Los Angeles County.
19. SMS-OPT IN: 19.1 "By agreeing the terms of service, you agree to receive text messages from Hot Bartenders for event gig opportunities. Message and data rates may apply. Message frequency varies. Reply HELP for help and STOP to cancel.
Last updated: Aug 1, 2017
These Terms of Service constitute a legally binding agreement (“Agreement”) between you and HotBartenders, LLC. (“Company” or “HotBartenders”) governing your use of the HotBartenders Platform (as defined below), Company’s website (HotBartenders.com or the “Site”) or mobile applications. The platform services provided by Company, the Site and mobile applications together are hereinafter collectively referred to as the “HotBartenders Platform.”
PLEASE NOTE: THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). 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 IN SECTION 20) AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE HOTBARTENDERS PLATFORM.
Your use of the HotBartenders Platform constitutes your acceptance of and agreement to all of the terms and conditions in these Terms of Service and the Privacy Policy (the “Privacy Policy”) available here, and any future amendments and additions to this Agreement (as defined below) as we may publish from time to time. The Privacy Policy are incorporated by reference into these Terms of Service and together form and are hereinafter referred to as this “Agreement”.
A few highlights of these Terms of Service include:
The HotBartenders Platform is a web-based communications platform which enables the connection between Clients and Talents. “Clients” are individuals and/or businesses seeking to obtain task services (“Tasks”) from Talents and are therefore clients of Talents, and “Talents” are individuals and/or businesses seeking to perform Tasks for Clients. Clients and Talents together are hereinafter referred to as “Users.” If you agree on the terms of a Task with another User, you and such other User form a Service Agreement directly between the two of you as set forth in more detail in Section 3 below.
TALENT ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OF COMPANY. COMPANY DOES NOT PERFORM TASKS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TASKS. USERS HEREBY ACKNOWLEDGE THAT COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A TALENT’S WORK AND IS NOT RESPONSIBLE FOR THE WORK PERFORMED OR THE TASKS IN ANY MANNER.
The HotBartenders Platform only enables connections between Users for the fulfillment of Tasks. Company is not responsible for the performance of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Tasks, Talents, Clients, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Tasks requested and services provided by Users identified through the HotBartenders Platform whether in public, private, or offline interactions.
User Vetting
In Company’s sole discretion, Users may be subject to an extensive vetting process before they can register for and during their use of the HotBartenders Platform, including but not limited to a verification of identity and a comprehensive criminal background check, at the Country, State and local level, using third party services as appropriate. Users hereby give consent to Company to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.
Although Company may perform background checks of Users, as outlined above, Company is not required to do so and cannot confirm that each User is who they claim to be and therefore, Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the HotBartenders Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE HOTBARTENDERS PLATFORM AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE HOTBARTENDERS PLATFORM.
User Representations and Warranties
You represent and warrant that that: (1) you are 21 years of age or older and are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (2) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement. You represent and warrant that you have read, understand and are required to agree to and accept be bound by these Terms of Service and, the Privacy Policy in order to access and use the HotBartenders Platform. You hereby warrant and represent that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of Users and that you will not record (whether video or audio or otherwise) any Task or any interaction by or with any User and/or Company in connection with HotBartenders Platform without the prior written consent of any relevant User. You further represent and warrant that you will fulfill the commitments you make to other Users including paying/receiving payment through the HotBartenders Platform, communicating clearly and promptly through the chat thread and/or respond to invitations promptly, being present and/or available at the time you agree upon with your Talent or Client 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 services provided through the HotBartenders Platform. You also represent and warrant that you will act professionally and responsibly in your interactions with other Users. Talents additionally represent and warrant that you will provide timely, high quality services to your Clients, you will only offer and provide services for which you have the necessary skills and expertise and you will provide the services safely. Talents who request to be identified on the HotBartenders Platform as a Licensed Talent additionally represent and warrant that they hold all licenses and certification necessary to perform the Tasks for which they are hired, are active and in good standing with the applicable licensing authorities, do not have any outstanding or unresolved disciplinary actions against them by the relevant licensing board, hold the requisite insurance and acknowledge that their insurance shall be primary for all Tasks performed. Talents who are identified on the HotBartenders Platform as a Licensed Talent also acknowledge they will personally perform the Task for which they are hired or, with their Client’s permission, will only send other Licensed Talents in their employ who (i) hold the requisite license, (ii) are covered by the requisite insurance and (iii) are registered as a Talent and identified as a Licensed Talent on the HotBartenders Platform.
You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a Task with another User. The terms of the Service Agreement include the terms set forth in this Section 3, the engagement terms proposed and accepted on the HotBartenders Platform, and any other contractual terms accepted by both the Talent and their Client to the extent such terms do not conflict with the terms in this Agreement including this Section 3 and do not expand Company’s obligations or restrict Company’s rights under this Agreement. You agree that Company is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Company and the Talent.
Where approved in advance by the Client, the Talent is not obligated to personally perform the Services. Before any Task services are performed by any assistants, helpers, subcontractors or other personnel (collectively “Assistants”) engaged by the Talent, the Talent shall require any such individuals to become registered Talents on the HotBartenders Platform pursuant to Company policies as described on the HotBartenders Platform. A Talent’s failure to bring an Assistant who is not a registered Talent could lead to removal from the HotBartenders Platform. The Talent assumes full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable state and federal income tax withholdings as to the Talent and all persons engaged by the Talent in the performance of the Task services.
The Client shall pay their Talent directly for completed Task services through the PSP (as defined below) as indicated on the HotBartenders Platform at the rates agreed to by the parties in the Service Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a Task. Both parties agree to notify Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Company representatives for at least thirty (30) days before initiating any proceeding between the parties.
Users of the HotBartenders Platform contract for Tasks directly with other Users. Company will not be a party to any contracts for Tasks or services. Payment for Task services through the HotBartenders Platform is made directly from the Client to the Talent and not by Company. If a Client fails to pay a Talent for services provided through the HotBartenders Platform, Company may, in its sole discretion, pay the Talent for such services but Company is not obligated to do so. Notwithstanding the foregoing, Company is not obligated to pay Talent for Client’s failure to pay for services.
Users of the HotBartenders Platform will be required to provide their credit card and/or bank account details to Company and the Payment Service Provider retained by Company (the “PSP”). Talents are responsible for invoicing their Clients within 24 hours of the work being performed even if the Task is not completed in its entirety or is designed as “ongoing”. Clients will be responsible for paying the invoice for each Task (the “Invoice”), which will include (i) the pricing terms of the Task agreed with and provided by a Talent (“Task Payment”), (ii) any out of pocket expenses agreed with and submitted by a Talent in connection with the Task, (iii) any tip or gratuity, if applicable, (iv) the service charge Company assesses for the HotBartenders Platform, variable based on the Task Payment amount, and (v) the platform fee (sometimes referred to as Trust & Support Fee), which is used to offset Company's cost of providing Users with customer support, providing various business objectives, and (vi) cancellation fees, if applicable. Talents will be responsible for paying (i) registration fees (applicable to Talent registrants), (ii) cancellation fees, if applicable and (iii) repayment of erroneous payments. Clients may also be charged credit card processing fees equal to three percent (3%) of the aggregate expense amount if expenses related to a Task individually, or Tasks in the aggregate over a 30-day period, exceed $300.00.
Talents may be required to register with 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. Terms of Service between Talents and the PSP retained by Company are available here (the “PSP Agreement”). By accepting these Terms of Use, each Talent 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 (currently, Braintree) are the parties to the PSP Agreement and that Company has no obligations or liability to any Talent under the PSP Agreement.
To help prevent fraud and safeguard User information from the risk of unauthorized access, 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 between $0.01 US to $5000.00 US depending on the estimated value of the task and reimbursements.
When Client receives confirmation through the HotBartenders Platform or via email that a Task has been completed, Client automatically authorizes Company to provide Client's payment details to the PSP for processing of Task Payment, out of pocket expenses owed to Talent, and the service charge and trust and support fees owed to Company for the use of the HotBartenders Platform. You may be charged a cancellation fee through the PSP if you book a Task, but cancel it before it is completed, as set forth in the Task pricing terms or if you agree to perform a Task but fail to complete it, as may be set forth in the Task pricing terms.
Company reserves the right, in its sole discretion (but not the obligation), upon request from Client or Talent or upon notice of any potential fraud, unauthorized charges or other misuse of the HotBartenders Platform, to (i) place on hold any Task Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so.
Task Payment and fees must be paid through the PSP as indicated on the HotBartenders Platform.
Users of the HotBartenders Platform will be liable for any taxes (including VAT, if applicable) required to be paid on the Task services provided under the Agreement (other than taxes on Company’s income).
The HotBartenders Platform is only a venue for connecting Users. Because Company is not involved in the actual contact between Users or in the completion of the Task, in the event that you have a dispute with one or more Users, you release Company and its affiliates (and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS HotBartenders PLATFORM. Company’s sole liability with respect to disputes between Users is as set forth in the Happiness Pledge described in Section 13
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
The HotBartenders Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the HotBartenders Platform, you may not share your personal contact information with other Users.
Without limitation, while using the HotBartenders Platform, you may not:
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
Company may terminate, limit or suspend your right to use the HotBartenders Platform in the event that we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.
If Company terminates, limits, or suspends your right to use the HotBartenders Platform as a Client for a User Breach, you will not be entitled to any refund of unused balance in your account, and you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating, limiting, or suspending your account, Company reserves the right to take appropriate legal action, including without limitation pursuing arbitration, criminal, and injunctive redress in accordance with Section 20.
Even after your right to use the HotBartenders Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you.
Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the HotBartenders Platform at its sole discretion. Except for refundable fees you have advanced to Company (if any), Company is not liable to you for any modification or discontinuance of all or any portion of the HotBartenders Platform. Notwithstanding anything to the contrary in this Section 8, Company has the right to restrict anyone from completing registration as a Talent if Company believes such person may threaten the safety and integrity of the HotBartenders Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the HotBartenders Platform. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
You must register with Company and create an account to use the HotBartenders Platform. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Company for accessing the HotBartenders Platform. You are solely and fully responsible for all activities that occur under your password or account. Company has no control over the use of any User's account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact Company immediately.
By providing your mobile phone number and using the HotBartenders Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the HotBartenders Platform, (b) facilitate the carrying out of tasks through the HotBartenders Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming Tasks, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming tasks and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Company’s mobile application, by emailing info@hotbartenders.com and specifying you want to out-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing info@hotbartenders.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
“Your Information” is defined as any information and materials you provide to Company or other Users in connection with your registration for and use of the HotBartenders Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.”
You hereby represent and warrant to Company that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The HotBartenders Platform hosts User Generated Content relating to reviews and ratings of specific Talents (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake their own research to be satisfied that a specific Talent is the right person for a Task. You agree that Company is not liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Company do so.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the HotBartenders Platform.
Each Talent who provides to Company any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the HotBartenders Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
Each Talent acknowledges that Company shall not owe any financial or other remuneration for using the recordings provided hereunder by such Talent, either for initial or subsequent transmission or playback, and further acknowledges that Company is not responsible for any expense or liability incurred as a result of such Talent’s recordings or participation in any recordings, including any loss of such recording data.
The HotBartenders Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by Company of those sites or their content. They are provided as an information service, for reference and convenience only. Company does not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the HotBartenders Platform to such websites (including without limitation external websites that are framed by the HotBartenders Platform as well as any advertisements displayed in connection therewith) does not mean that Company endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites, and not by Company's Terms of Service or Privacy Policy. You access such third-party websites at your own risk. Company expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the HotBartenders Platform. You hereby agree to hold Company harmless from any liability that may result from the use of links that may appear on the HotBartenders Platform.
As part of the functionality of the HotBartenders Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the HotBartenders Platform; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that (i) Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the HotBartenders Platform via your account, including without limitation any friend lists, and (ii) Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Service. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the HotBartenders Platform. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the HotBartenders Platform. You will have the ability to disable the connection between your account on the HotBartenders Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Company is not responsible for any SNS Content. You acknowledge and agree that Company may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the HotBartenders Platform. At your request made via e-mail to info@hotbartenders.com, Company will deactivate the connection between the HotBartenders Platform and your Third Party Account and delete any information stored on Company’s servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.
AS SET FORTH IN SECTION 1, COMPANY DOES NOT PERFORM TASKS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TASKS. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Company. Each User acknowledges that Company does not, in any way, supervise, direct, control or monitor a Talent’s work or Tasks performed in any manner. Company does not set a Talent’s work hours or location of work. Company will not provide any equipment, labor or materials needed for a particular Task. Company does not provide any supervision to Users.
The HotBartenders Platform is not an employment service and Company is not an employer of any User. As such, Company is not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance,social security, disability insurance or any other applicable federal or state withholdings in connection with your use of Users’ Task services.
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the HotBartenders Platform is owned by Company, excluding User Generated Content that Company has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the HotBartenders Platform without Company's express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Company and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks owned by Company. Any other trademarks, service marks, logos and/or trade names appearing via the HotBartenders Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
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 HotBartenders Platform infringe upon your copyright or other intellectual property right, please send the following information to Company's Copyright Agent at: info@hotbartenders.com
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 other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. 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.
THE HotBartenders PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, including, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE HOTBARTENDERS PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE HOTBARTENDERS PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE HOTBARTENDERS PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE HOTBARTENDERS PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE HOTBARTENDERS PLATFORM WILL BE UNINTERRUPTED OR THAT THE HOTBARTENDERS PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HOTBARTENDERS PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY TASK OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE HOTBARTENDERS PLATFORM. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE HotBartenders PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
IN ADDITION, NOTWITHSTANDING ANY FEATURE A CLIENT MAY USE TO EXPEDITE HOTBARTENDERS SELECTION, EACH CLIENT IS RESPONSIBLE FOR DETERMINING THE TASK AND SELECTING THEIR TASKER AND COMPANY DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A CLIENT AND DOES NOT RECOMMEND ANY PARTICULAR TASKER. COMPANY DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY TASKER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE HOTBARTENDERS PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE HOTBARTENDERS PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE HOTBARTENDERS PLATFORM OR THE TASK SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
COMPANY DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE HOTBARTENDERS PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES IN EXCESS OF THE HAPPINESS PLEDGE, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO COMPANY DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
You hereby agree to indemnify, defend, and hold harmless Company, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, successors and assigns, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys' fees and costs incurred, in connection with (i) your use or inability to use the HotBartenders Platform or Task Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law the rights of any User or third party (iv) any content submitted by you or using your account to the HotBartenders Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Company (each a “Claim” and collectively “Claims”), you and Company agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to Company. info@hotbartenders.com: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Company may initiate arbitration while engaging in the informal negotiations.
YOU AND COMPANY MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate, contained in Section 20, (“Arbitration Agreement”), is governed by the Federal Arbitration Act and survives the termination of this Agreement or your relationship with Company. Claims include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof), the HotBartenders Platform, services, Tasks, your relationship with Company, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any city, county, state or federal wage-hour law, compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress, any promotions, offers made by Company, breach of any express or implied contract or breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including Claims about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
You and Company agree that any arbitration will be limited to the Claim between Company and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING (“CLASS ACTION WAIVER”). Further, unless both you and Company otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Company, which are addressed separately in Section 20 (d) below. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the Claim is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent allowed by law: (1) you and Company agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Company agree that any such Claim will be resolved in arbitration on an individual basis only (that is, to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA Waiver or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA
Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Talents or Clients, but is bound by rulings in prior arbitrations involving the same Talent or Client 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, provided that any award may be challenged in a court of competent jurisdiction in accordance with the Federal Arbitration Act.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
Unless you and Company agree otherwise, any arbitration hearings between Company and a Talent will take place in the county of your billing address, and any arbitration hearings between Company and a Client will take place in the county in which you received Task services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
The following types of Claims are not required to be arbitrated under the Arbitration Agreement:
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. However you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision and do not prevent you from receiving an award for information provided to any government agencies.
In addition to the severability provisions in Section 20(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
You may opt out of the Arbitration Agreement by notifying Company in writing within thirty (30) days of the date you first registered for the HotBartenders Platform or thirty (30) days from the date this Agreement was last updated. To opt out, you must send a written notification email info@hotbartenders.com Attention: Legal, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
Except as provided in Section 20 or expressly provided otherwise, this Agreement will be governed by, and will be construed under, the laws of the State of California, without regard to choice of law principles.
Company may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified or removed at any time by Company without advance notification and the liability of any of Company’s partners pursuant to such promotional opportunities, sweepstakes and contests shall be limited pursuant to Section 18 of these Terms of Service, including but not limited to Section 18 of these Terms of Service.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
Failure by Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Company with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of Company, its successors and assigns.
HotBartenders does not oversee, monitor or supervise the posting, scoping or performance of tasks. Accordingly, Clients must determine for themselves whether a Talent is qualified to perform the specific Task at hand.
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 this Agreement (including the Privacy Policy) and review, improve, modify or discontinue, temporarily or permanently, the HotBartenders Platform or any content or information through the HotBartenders Platform at any time, effective with or without prior notice and without any liability to Company. 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 HotBartenders Platform. Your continued use of the HotBartenders Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. Company may change, modify, suspend, or discontinue any aspect of the HotBartenders Platform at any time without notice or liability. Company may also impose limits on certain features or restrict your access to parts or all of the HotBartenders Platform without notice or liability.
I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF SERVICE AND PRIVACY POLICY AND AGREE THAT MY USE OF THE HOTBARTENDERS PLATFORM IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.