1. Marketplace Platform: Overview

1.1. Marketplace Platform.  Directly provides a Marketplace Platform that transforms and scales customer service for our corporate enterprise customers (“Customers”).  Directly’s Marketplace Platform enables Customers and their end-users, customers, partners, resellers, distributors, developers, and community members (“Customer Users”) to post questions Customer’s products and/or services (“Requests”) for response by Customer Users who apply for or qualify as expert users (collectively Experts). Customer Users and Experts are referred to collectively as “Users”.

1.2. Directly Account Registration and Reward Transfers. To be eligible to respond to Requests as an Expert via the Marketplace Platform you must register for a Directly account (“Directly Account“) and provide certain information about yourself including your full name, email address and/or mobile phone number and a personal “headshot” photograph.  Once you are registered as an Expert for a Directly Account, you will be able to respond successfully to Requests. To transfer any Directly Account balance in connection with the Marketplace, Experts will need to submit additional personal data such as mailing address, birthdate, phone number, and government identification information.  This personal data is processed to verify identity and combat fraud. Please see our Privacy Policy, at Section 2 for additional details. Specific customer networks may impose additional terms and duties via “Supplemental Terms,” in which case you will be given an opportunity to review and consent to such Supplemental Terms.

1.3. Account Representations and Responsibilities. You represent and warrant that: (a) the Expert registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Marketplace Platform does not violate any applicable law or regulation or these Terms.  You may delete your Directly Account at any time and for any reason, by following the instructions on the Marketplace Platform.  See Directly’s Privacy Policy, Section 5 “Choices and Rights” for details.  We reserve, at all times, the right to accept or reject your application for a Directly Account, as well as your initial and ongoing participation in the Marketplace Platform.

You are responsible for maintaining the confidentiality of your Directly Account login information and are fully responsible for all activities that occur under your Directly Account.  You agree to immediately notify us of any unauthorized use, or suspected unauthorized use of your Directly Account or any other breach of security.  Please read Section 7, “Confidential Information,” carefully, so you understand your legal obligations to protect Confidential Information and, where applicable, Personal Data.

1.4. Login via Social Network. Directly may allow you to log in using your account login information from certain third-party social networking sites (“Third Party Account”), e.g., Facebook or LinkedIn.  If you log in using your Third Party Account, we may receive information about you from such Third-Party Account.

1.5. User Content. The content that is submitted to the Marketplace Platform by, or on behalf of, Experts, Customers and Customer Users in creating, viewing, submitting or responding to Requests is all considered user content (“User Content”).  You are an independent contractor and solely responsible for your User Content and activity related to your User Content. The Marketplace Platform helps to optimize the routing and resolution of these Requests, but like all social platforms, we do not take responsibility for any User Content or for actions by independent third-party Experts, Customers, or Customer Users.

1.6. User Conduct and Confidentiality. You are responsible for maintaining a high level of professionalism and confidentiality, as described in the “User Conduct” and “Confidential Information” sections below. We may suspend or limit your rights to use the Marketplace Platform or terminate these Terms, at any time for any reason at our sole discretion, including any use of the Marketplace Platform in violation of the Terms.

2. Marketplace Platform Licenses and Restrictions.

2.1. Grant. Subject to the terms of these Terms, we grant you a non-transferable, non-exclusive license to access and use the Marketplace Platform for the purpose of viewing and responding to Requests.

2.2. Restrictions. You will not: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Marketplace Platform; (b) modify, copy, distribute, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Marketplace Platform; and/or (c) access the Marketplace Platform in order to build a similar or competitive service.

2.3. Modification.  We reserve the right, at any time, to modify, suspend, or discontinue the Marketplace Platform or any part thereof with or without notice.  You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Marketplace Platform or any part thereof.

2.4. Ownership. You acknowledge that all the intellectual property rights in the Marketplace Platform are owned by us or our licensors.  The provision of the Marketplace Platform does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights.  We and our licensors reserve all rights not granted in these Terms.

2.5. Third Party Providers. Certain features of the Marketplace Platform may be operated by Third Party Providers (“Third Party Providers”). To use the features of Third Party Providers, you may be required to create an account with, or otherwise login to, the applicable Third Party Provider.  Any information provided through a Third Party Provider feature is collected by the applicable Third Party Provider on its servers, and is governed by its terms of service and privacy policy.  That information may be shared with Directly; and you hereby consent to the Third Party Provider sharing that information with Directly.

2.6. Not Part of the Marketplace Platform.  The Marketplace Platform may be made available through independent Customer websites, help desks, and other online properties and digital customer service channels.  Our Customers are responsible for these independent properties and configuration of Directly technology that forwards select Requests. None of the activities of Experts, Customers, or Customer Users or any User Content is part of the Marketplace Platform or services provided by Directly, or the responsibility of Directly.

3. User Content

3.1. General. User Content includes any and all information and content that Experts submit to the Marketplace Platform, other than feedback about the Marketplace Platform.  You are solely responsible for your User Content and any activity related to User Content or use of the Marketplace Platform.  You assume all risks associated with use of User Content and activity related to User Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable.  You hereby affirm, represent, and warrant that:  (a) you own, or have the necessary licenses, rights, and/or consents to transmit your User Content via the Marketplace Platform and to license and assign the rights in the User Content, and (b) your User Content, activity related to User Content, and use of the Marketplace Platform does not violate the Acceptable Use Policy, below.

3.2. Assignment and License.  You hereby assign all your rights in your User Content to Directly (which may assign such rights to each Customer to which the User Content relates). You agree to waive irrevocably (and cause to be waived), and agree never to assert, any claims and assertions of moral rights or attribution with respect to your User Content. To the extent you respond to a Request, Directly, or the applicable Customer (through its agreement with Directly), grants to you a nonexclusive license (subject to relevant confidentiality obligations) to reproduce, create derivative works of, distribute, display, and perform your User Content related to such Request.

3.3. Feedback.  We will treat any feedback or suggestions you provide to us as non-confidential and non-proprietary. Thus, in the absence of a written agreement with us to the contrary, you agree that you will not submit to us any information or ideas that are, or you consider to be, confidential or proprietary.

4. Expert Conduct

4.1. Acceptable Use Policy.  The following sets forth our “Acceptable Use Policy“: You understand that all User Content, including any Request you view or complete, whether publicly posted or privately transmitted, is the sole responsibility of the person who created the respective content. This means that you, and not we, are entirely responsible for User Content that you upload, post, email, transmit or otherwise make available via the Marketplace Platform, including any Request you view or complete.  Without limiting the generality of the foregoing, you must not use the Marketplace Platform to:

• upload, post, email, transmit, or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, objectionable, or infringing of any patent, trademark, trade secret, copyright or other proprietary rights;
• upload, post, email, transmit, or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
• state or imply that your User Content is in any way provided, sponsored or endorsed by us, an Applicable Customer, or any other company, organization or association;
• impersonate any person or entity, including, but not limited to, a forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
• collect or store personal data about other Users;
• harm minors in any way;
• upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose;
• upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
• violate any applicable local, state, national or international law;
• forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Marketplace Platform;
• create multiple Directly Accounts, or “game” the system in order to falsely earn points, rewards or reputation, including without limitation by getting friends to submit Requests, or using crowd labor platforms to boost results;
• interfere with or disrupt our servers or networks, or disobey any requirements, procedures, policies or regulations of networks, including using any device, software or routine to bypass our robot exclusion headers;
• attempt to gain unauthorized access to the Marketplace Platform, other computer systems or networks connected to or used together with the Marketplace Platform, through password mining or other means.

4.2. Responsibility for User Content. Directly does not control or endorse the User Content posted via the Marketplace Platform and, as such, does not make any representations, warranties, or commitments regarding User Content (including its accuracy, integrity or quality), even if Directly provides a “helpfulness grade” or other appraisal of the User or User Content.  Directly and our designees shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any User Content that is available via the Marketplace Platform. You bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content.

4.3. Codes of Conduct and Training Rules.  If you complete a Request, you will comply with all codes of conduct and training rules provided to you (i) by Directly or (ii) by the applicable Customer with respect to Requests related to that Customer.

5. Relationship

5.1. General.  If you are using the Marketplace Platform to complete Requests, you affirm that you are fully able and competent to enter into the Terms.  Users are not employees or agents of Directly or its Customers.  Experts, Customers and Customer Users expressly disclaim any employment relationship. You are acting as an independent contractor.  Nothing about your participation with Directly, its Customers or Customer Users is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship.

5.2. User Control When Completing Requests.  In the event you complete Requests, in no event shall Directly or our Customers have control over your work.  You will:  set your hours of work and amount of time worked; determine your own patterns and methods of work; use your own devices, supplies, tools, and equipment; perform work for any third parties of your choosing; and perform all work independently. You will not: use any property or equipment of Directly, Customers or Customer Users; perform any services on any premises of Customers or Customer Users; be required to provide any reports, written or oral, to Customers or Customer Users; or be integrated into the business operations or dealings of Directly’s Customers.  Customers will not:  pay for your expenses; provide instructions or direction to you on the location, time, methods, or means of performance of services; or supervise you in any form, fashion or manner.

6. Rewards

6.1. Payment.  In accordance with Section 2, Directly will instruct the processing of payments to you based on Requests that you complete, in accordance with Directly’s and the applicable Customer’s policy for determining the amounts of such payments.  In order to direct payment to you as an Expert, we require additional information to verify your identity and to combat fraud.  See Privacy Policy, Section 2 for details.  We also may institute a threshold of reward amounts that you must meet in your Directly Account in order to effectuate the cash transfer (e.g., paying you only after the sum of your unpaid rewards is more than a minimum amount). In the event that you earn rewards for completing Requests, Directly will undertake reasonable efforts to release to you those rewards each week, month, or at an interval determined by us or the applicable Customer.  We reserve the right (but not the obligation), at our election or upon request from the applicable Customer or upon notice of any potential fraud, unauthorized charges or other misuse of the Marketplace Platform, to place on hold or cancel any payment.  We, in our sole discretion, will select a payment processor and you must create an account with this payment processor to receive payment. We may deduct any payment processing fees from any payments to you.

6.2. Taxes.  If you complete Requests, you are solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state, or local tax authority with respect to receipt of rewards in connection with completing Requests and receiving payments therefor.  Directly, the payment processor or the applicable Customer will report payments to you to the Internal Revenue Service (or other taxing authorities) as required by law.

7.  Confidential Information

7.1. Confidential Information Scope.  You acknowledge and agree that any information you receive in connection with a Request constitutes proprietary, confidential information and/or Personal Data of (a) the applicable Customer, or (b) applicable Customer Users, whether or not marked as proprietary, confidential, personal, or other reference (collectively, the “Confidential Information”). Confidential Information does not include information that demonstrably (a) is or becomes generally available to the public other than as a result of disclosure by you; (b) was possessed by you prior to being furnished by the Marketplace Platform; or (c) becomes available to you from a source other than the Marketplace Platform.  Further, it shall not be a violation for you to disclose Confidential Information in response to a subpoena or other legal process served upon you, or where applicable law or regulation requires the disclosure of such information, provided that, if not prohibited under applicable law, you give reasonable prior written notice to Directly sufficient to permit Directly to inform the applicable Customer, so the applicable Customer can seek a protective order if it so chooses, and you disclose only the information that is legally required to be disclosed.

7.2. Confidential Information Legal Duties.
7.2.1.  You agree to keep confidential and not to disclose any Confidential Information to any third party, unless instructed to do so in writing by Directly.  With respect to any Confidential Information, you agree to abide by any confidentiality and other obligations provided by Directly.

7.2.2.  You will keep all Confidential Information in strictest confidence and will not collect, use, store, disclose, or otherwise process any Confidential Information, except to complete a Request, on Directly or the applicable Customer’s behalf, and in accordance with Directly instructions and applicable law.

7.2.3.  You will not disclose, process, or otherwise use any Confidential Information in a manner that violates any applicable law and you agree to notify Directly in writing immediately if you believe that any instruction given by Directly would violate any applicable law.

7.2.4.  You agree to notify Directly in writing immediately if you learn of any collection, use, storage, disclosure, or other processing of any Confidential Information in a manner not permitted by this Section or these Terms.

7.2.5.  You further agree to take appropriate technical and organizational measures to ensure the confidentiality, integrity, availability, and resilience of any systems used for handling Requests and protect against the unlawful destruction, loss, alteration, unauthorized disclosure of, or access to any Confidential Information transmitted, stored or otherwise processed.

7.2.6.  You will not engage any other individual or entity to assist with a Request unless you are instructed to do so in writing by Directly.

7.2.7.  You agree to make available to the Directly all information necessary to demonstrate compliance with the obligations set forth in this Section and applicable law regarding the Confidential Information, and to allow Directly to conduct audits, including inspections, of your compliance with the obligations set forth in this Section.

7.2.8.  Upon the termination, cancellation or expiration of your Directly Account for any reason, or upon Directly’s request at any time, you will destroy all Confidential Information, together with any copies that may be authorized herein.

7.2.9.  Nothing herein is intended to or shall grant to you any license or other right of any nature to the use of any Confidential Information except as permitted in this Section.  Nothing in these Terms shall be deemed to restrict you from providing the same or similar services in connection with third-party platforms, regardless of whether any such third party directly or indirectly competes with Directly, except that you shall not use, in the provision of such services, any Confidential Information or other non-public information pertaining to Directly’s business that is either designated and/or marked as confidential when disclosed to you, or which you knew or reasonably should have known, under the circumstances, was considered confidential or proprietary by Directly even if not designated or marked as such.

8. Disclaimers

The Marketplace Platform is provided “as-is,” and as available.  We expressly disclaim any and all representations, warranties, and conditions of any kind, whether express or implied, including those of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement.  We make no warranty that the Marketplace Platform or any content therein:  (a) will meet your requirements; (b) will be available on an uninterrupted, timely, secure, or error-free basis; or (c) will be accurate, reliable, complete, legal, or safe. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.  Directly (and each Expert that completes a Request) does not provide any legal, financial or other advice.  For specific advice on legal or financial matters, you should always seek the advice of a professional who is licensed and knowledgeable in that area, such as an attorney or accountant.

9. Limitation of Liability

In no event shall we (and our Customers, Customer Users or Third Party Providers (collectively, “Partners”) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special, or punitive damages arising from this Agreement or your use of, or inability to use, the Marketplace Platform, even if we have been advised of the possibility of such damages. Access to, and use of, the Marketplace Platform are at your own discretion and risk.

Notwithstanding anything to the contrary contained herein, our (and our Partners’) liability to you for any damages arising from or related to these Terms, Marketplace Platform (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of:  (a) fifty U.S. dollars ($50) or (b) amounts we have paid you in the prior 12 months (if any).

Each Partner’s liability to you for any damages arising from or related to User Content (for any cause whatsoever and regardless of the form of the action), will at all times be limited to the greater of (a) fifty U.S. dollars ($50), or (b) amounts paid to you in the prior 12 months (if any).

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.

10. Indemnities

By You.  You agree to indemnify and hold us, our parents, subsidiaries, affiliates, any related companies, our Partners, Customers, Customer Users, suppliers, licensors, and the officers, directors, employees, agents and representatives of each of them harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of:  (i) your use of the Marketplace Platform, (ii) your User Content, or (iii) your violation of these Terms.  We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.  You agree not to settle any matter without our prior written consent.  We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

By Us.  We will (1) defend, or at our option settle, any suit filed by a third party against you (a “Suit”) to the extent such Suit claims that your use of the Marketplace Platform, as permitted in these Terms, constitutes infringement or misappropriation by you of a third party’s intellectual property rights; and (2) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agreed to by us in a monetary settlement of such Suit. If any portion of the Marketplace Platform becomes, or in our opinion is likely to become, the subject of a claim of infringement, we may, at our option: (a) procure for you the right to continue using the Marketplace Platform; (b) replace the Marketplace Platform with non-infringing software or Marketplace Platform, which do not materially impair the functionality of the Marketplace Platform; (c) modify the Marketplace Platform so that it becomes non-infringing; or (d) terminate these Terms and refund any fees actually paid by you to us for the remainder of the term then in effect, and upon such termination, you will immediately cease all use of the Marketplace Platform. Notwithstanding the foregoing, we shall have no obligation under this section or otherwise with respect to any infringement claim that would not have arisen but for (x) any use of the Marketplace Platform not in accordance with these Terms; (y) any use of the Marketplace Platform in combination with other products, equipment, software, or data not supplied by us; or (z) any modification of the Marketplace Platform by any person other than us or our authorized agents.  This subsection states your sole and exclusive remedy and the entire liability of Directly, or any of our officers, directors, employees, shareholders, contractors or representatives, for infringement claims and activity.

11. Release

You hereby release Directly, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and activity of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interaction with, User Content from, or conduct of, Directly Experts, Customers, Customer Users or Third Party Providers.  You hereby waive California Civil Code section 1542 in connection with the foregoing, which states:  “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

12. Term and Termination

Subject to this Section, these Terms will remain in full force and effect while you use the Marketplace Platform.  We may (a) suspend or limit your rights to use or access the Marketplace Platform (including your Directly Account), or (b) terminate these Terms, at any time for any reason at our sole discretion, including (i) for any use of the Marketplace Platform in violation of these Terms; or (ii) if while completing Requests, you do not meet, or cease to meet, the guidelines set forth in an agreement with a Directly customer.  Upon termination of these Terms, your Directly Account and right to access and use the Marketplace Platform will terminate immediately. You understand that any termination of your Directly Account may involve deletion of your User Content associated therewith.  We will not have any liability whatsoever to you for any termination of these Terms, including for termination of your Directly Account or deletion of your User Content.  Even after these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2-14

13. Copyright Policy

We respect the intellectual property of others and require that Partners who access and use our Marketplace Platform do the same.  In connection with our Marketplace Platform, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Experts who violate our terms or infringe on intellectual property rights, including copyrights. If you believe that one of our Experts is, through the use of our Marketplace Platform, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. 512(c)) must be provided to us:

1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our Marketplace Platform that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

Our designated copyright agent to receive such claims can be reached as follows:
By mail:
Copyright Agent
c/o Directly Software, Inc., 333 Bryant Street #250, San Francisco, CA, 94107, United States
By phone: 415-745-2328
By email: legal@directly.com

14. Agreement to Arbitrate: Arbitration Terms

14.1. Effect of Agreement to Arbitration Terms.

• By agreeing to the Terms, and unless you opt-out as provided immediately below, you agree that you are required to resolve any claim that you may have against Directly on an individual basis in arbitration, as set forth in this Section 14, “Agreement to Arbitrate: Arbitration Terms” (hereinafter “Arbitration Terms”).
• This will preclude you from bringing any class, collective, or representative action against Directly, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Directly by someone else.

14.2.Right to Opt Out of Arbitration Terms. You may opt out of these Arbitration Terms and your agreement to arbitrate. If you do so, neither you nor Directly can require the other to participate in an arbitration proceeding. You may opt out by emailing us at hello @directly.com or sending us written notification at Directly Software Inc., Attention: Legal, , 333 Bryant Street, #250, San Francisco, CA 94107.  You must notify us by emailing or posting within 30 days of the date that you first became subject to this arbitration provision, and your notification must include your name and residence address, the email address you use for your account (if you have one), and a clear statement that you want to opt out of these Arbitration Terms. Your decision to opt-out of these Arbitration Terms will have no adverse effect on your relationship with us.  Unless you choose to opt out, this dispute resolution provision in Section 14 shall survive termination of the Terms.

14.3. Waiver of Jury Trial and Class Actions. You acknowledge and agree that you and Directly are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Directly otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Directly each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

14.4. Notices. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to Directly should be sent to: ATTN: Legal, Directly Software, Inc., 333 Bryant Street, Suite 250, San Francisco, CA, 94107.  Any Notice to the applicable Customer should be sent to that Customer’s principal offices.  After the Notice is received, you and Directly (or the applicable Customer) may attempt to resolve the claim or dispute informally.  If you and Directly (or the applicable Customer) do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

14.5. Arbitration Rules.  Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”).  The Terms and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms (“Arbitration Rules”).  The arbitration shall be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise.  If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  If the arbitrator grants you an award that is greater than the last settlement offer that Directly or the Applicable Customer made to you prior to the initiation of arbitration, Directly (or the Applicable Customer) will pay you the greater of the award or 130% of the settlement offer.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

14.6. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected pursuant to Section “(c)” above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

14.7. Time Limits.  If you or Directly (or the applicable Customer) pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.

14.8. Authority of Arbitrator.  If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Directly (or the applicable Customer), and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim.  The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s rules, and the Terms.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and Directly (or the applicable Customer).

14.9. Waiver of Jury Trial.  The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under these arbitration section terms.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court.  In the event any litigation should arise between you and Directly (or the Applicable Customer) in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and Directly (or the applicable Customer) waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.

14.10. Waiver of Class or Consolidated Actions.  All claims and disputes within the scope of this Arbitration Terms must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one User cannot be arbitrated or litigated jointly or consolidated with those of any other user or third party (including but not limited to Experts, Customer Users or Customers).

14.11. Confidentiality.  All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential.  The parties agree to maintain confidentiality unless otherwise required by law.  This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief.

14.12. Severability.  If any part or parts of this section are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Terms shall continue in full force and effect.

14.13. Right to Waive.  Any and all of the rights and limitations set forth in this section may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of these terms.

14.14. Survival of Terms.  This Arbitration Terms will survive the termination of your relationship with Directly (or the Applicable Customer).

14.15. Small Claims Court.  Notwithstanding the foregoing, either you or Directly (or the Applicable Customer) may bring an individual action in small claims court.

14.16. Emergency Equitable Relief.  Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Terms.

14.17. Claims Not Subject to Arbitration.  Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to these Arbitration Terms.

14.18. Courts.  In any circumstances where the foregoing Arbitration Terms permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within San Francisco County, California, for such purpose.

15. General

15.1. Changes to Terms.  These Terms are subject to revision, and if we make any substantial changes, we will notify you by sending you an email to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Marketplace Platform so it is visible when you visit and/or log-on to the Marketplace Platform for the first time after the change is posted.  Your continued use of the Marketplace Platform after the changes have been posted shall constitute your acceptance of the changes.  If you do not agree to the updated Terms, you must cease your use of the Marketplace Platform.

Any material changes to these Terms will be effective immediately following our posting of notice of the changes on our Marketplace Platform.  You are responsible for providing us with your most current e-mail address. I n the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.

15.2. Electronic communications.  The communications between you and us use electronic means, whether you visit the Marketplace Platform or send e-mails, or whether we post notices on the Marketplace Platform or communicate with you via email.  For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.  The foregoing does not affect your statutory rights.

15.3. Entire Terms. These Terms (which include any other rules posted on the Marketplace Platform, excluding the privacy policy) constitute the entire agreement between you and us regarding the use of the Marketplace Platform.  Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.  The section titles in these Terms are for convenience only and have no legal or contractual effect.  The word “including” means “including without limitation.”  If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.  These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. We may freely assign these Terms.  The terms of these Terms shall be binding upon assignees.

15.4. Copyright/Trademark Information.  Copyright (c) 2010-2018.  All rights reserved.  All trademarks, logos and service marks (“Marks“) displayed on the Marketplace Platform are our property or the property of other third parties.  You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

15.5. System Outages and Changes to Marketplace Platform.  You acknowledge and agree there will be occasions when the Marketplace Platform will be interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment that are beyond our control, and that we will have no liability for your inability to access and/or use the Marketplace Platform and/or Marketplace Platform, or any portion thereof, during any of the foregoing events.  We reserve the right to change, alter or vary the Marketplace Platform, Marketplace Platform and/or User Content offered on or through the Marketplace Platform at any time without notice.

15.6. Third Party Beneficiary.  Directly and you acknowledge and agree that each applicable Customer is a third-party beneficiary of these Terms, and that, upon you accepting the terms and conditions of these Terms, such customers will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.