Terms of Service for Users
Bravado Network Terms of Service for Users
Last Updated: September 26, 2023
Welcome to the Bravado Network, Inc. (“Bravado”, “we”, “us”, or “our”)’s website located at https://www.bravado.co (the “Site”). On our Site and through our mobile application (the “App”) we offer certain platforms that provide, among other things, information, forums, and networking opportunities to sales professionals.
These Bravado Network Terms of Service for Users apply to (1) sales professionals seeking to find opportunities as a contractor or employee with Businesses (as defined below) (“Members”) or (2) individual persons (e.g. managers, business counterparts, clients, decision-makers, etc.) that have been contacted by a Member to provide his/her/their review, testimonial or recommendation or share his/her/their professional experience working with the requesting Member (each such reviewing person, a “Reviewer”, and each such review, testimonial or recommendation, a “Testimonial”).
To make these Terms (as defined below) easier to read, “Users”, “you” or “your” will mean Members and Reviewers. In addition, the term “Services” means our Site, services of connecting Businesses with Members offered via the Site, and App.
Also, if you are a business or company (a “Business”) seeking to obtain a referral on a member or engage a Member as an independent contractor or an employee, then the Bravado Network Terms of Service for Businesses apply to you.
Agreement to Terms
Changes to Terms or Services; Order of Precedence
We may modify the Terms (including the pricing) at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you must not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
These Terms will govern and control your use of the Services and interactions with the Site from the date these Terms were last updated (“Update Date”) and afterward. With respect to any Contractor Opportunity (as defined below) entered into prior to the Update Date, in the event of any conflict or inconsistency between these Terms and Flex Rep Agreement or Master Service Agreement, Statement of Work or Order Form for such Contractor Opportunity, these Terms will govern and control. For clarity, though, the pricing and payment terms, duration of the engagement and terms regarding qualified meetings or qualified deals from your Statement of Work and Order Form will still apply to such Contractor Opportunity (as those specific terms are not addressed for each applicable Contractor Opportunity in these Terms).
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND BRAVADO WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Description of Services
Our Site provides a platform designed to provide Members with resources to seek opportunities as a contractor or employee with Businesses.
Professional Profile and Testimonials. Through our Site and our App, we provide Members the ability to build their professional profile and a portfolio of their representative work. Our services allow Members to connect with their Reviewers to provide a Testimonial. Accordingly, our Members can develop their professional brand by adding Testimonials from various Reviewers to their profile.
Placement Opportunities. Bravado provides Members with an opportunity to connect with Businesses that are looking to (1) engage Members as independent contractors to provide professional sales services (“Sales Services”) directly to Businesses (a “Contractor Opportunity”) or (2) hire Members as sales employees (an “Employment Opportunity”). Members acknowledge and agree that Bravado will present their respective professional profiles to Businesses based on their search criteria, parameters and objectives and a Member’s experience, skill sets and past sales performance. Member may, at his/her/their discretion, agree to accept a Contractor Opportunity or Employment Opportunity.
With respect to any Contractor Opportunity, these terms and conditions will apply and the applicable Statement of Work will dictate the duration and scope of the Sales Services and related pricing.
With respect to any successful placement for an Employment Opportunity, the applicable Business will provide to Member the agreement and documentation that governs the Member’s employment arrangement with the Business (the “Employment Agreement”).
Who May Use the Services
Eligibility. You may use the Services only if you are 18 years or older and capable of forming a binding contract with Bravado and are not barred from using the Services under applicable law.
Registration and Your Information. In order to access and use certain features of our Services, you’ll have to register as a Member. Reviewers may, but do not need to register to use the Services in order to provide a Testimonial, though they cannot build their own professional profile unless they become a Member. You can register via the Site or through your account with certain third-party social networking services such as Facebook or LinkedIn (each, an “SNS Account”). If you choose the SNS Account option, we’ll create your Member account (“Member Account”) by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
It’s important that you provide us with accurate, complete and up-to-date information for your Member Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Member Account. You agree that you won’t disclose your Member Account password to anyone and you’ll notify us immediately of any unauthorized use of your Member Account. You’re responsible for all activities that occur under or through your Member Account, whether or not you know about them.
By uploading or submitting any materials, including without limitation, your profile picture, work experience, Testimonials, and any other User Content (as defined below) into the Services, you acknowledge that none of the User Content is confidential, and hereby consent to us publishing your User Content on our Services, unless a Member changes his/her/their profile settings within his/her/their account page, to be “private.”
Relationships Among Member, Bravado and Businesses
Contractor Opportunities. In connection with a Contractor Opportunity, Member agrees to provide Sales Services as an independent contractor and Member acknowledges that neither Bravado nor the Businesses supervise, direct, control or monitor your activities. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by these Terms, as between either Bravado and Member, Bravado or the Business, or the Business and Member. Member has no authority to bind Bravado by contract or otherwise. Member will perform Sales Services under the general direction of the applicable Business, but Member will determine, in Member’s sole discretion, the manner and means by which Sales Services are accomplished, subject to the requirement that Member will at all times comply with all applicable Business’s policies and procedures, including those regarding Business’s confidential business information and IT systems and networks, and applicable law.
Interactions. Member is solely responsible for its interactions with each applicable Business in connection with a Contractor Opportunity and will exercise caution, discretion, common sense and judgment in performing the Sales Services and disclosing information to Businesses. Member understands that Bravado does not screen or vet Businesses, including, but not limited to, criminal or other background or credit checks.
Liability Insurance. Member acknowledges that Bravado will not carry any liability insurance on behalf of Member. Member will maintain in force adequate liability insurance to protect Member from claims of personal injury (or death) or tangible or intangible property damage (including loss of use) that arise out of any act or omission of Member.
Sales Services Reps. Member agrees (i) that the performance of the Sales Services to a Business does not conflict with or violate a term of any agreement to which it is bound, (ii) to honor its commitments to Businesses in connection with each Sales Service, and (iii) that it will only provide Sales Services for which it has the necessary skills and expertise. Member further agrees to perform the Sales Services in a thorough and professional manner, consistent with high professional and industry standards.
Background Checks. Bravado, due to a Business request or requirement or otherwise, may, at any point during the term of these Terms, require Member to undergo and successfully complete and pass a background check verification process regarding Member’s criminal, education, driving, and/or employment background. Bravado will comply with all applicable background check requirements, including obtaining Member authorization to run a background check. These Terms and/or any Statement of Work can be terminated based upon data received in the verification.
Employment Opportunities. In connection with an Employment Opportunity, no agency, partnership, joint venture, or franchiser-franchisee relationship is intended or created by these Terms, as between either Bravado and you, Bravado or the Business, or the Business and you. Also, no employer-employee is intended or created by these Terms, as between Bravado and you. You are solely responsible for your interactions with each applicable Business in connection with an Employment Opportunity, and will exercise caution, discretion, common sense and judgment in connection therewith. Member understands that Bravado does not screen or vet Businesses, including, but not limited to, criminal or other background or credit checks.
We welcome feedback, comments, and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. Feedback is provided on a NON-CONFIDENTIAL BASIS, and we will have no obligation to keep such Feedback secret, to refrain from using such Feedback, or to compensate you for the receipt or use of such Feedback. Bravado is free to use, for any purpose whatsoever, any Feedback, including, but not limited to publishing, developing, and marketing our Services using such Feedback. By submitting Feedback to us, you hereby release Bravado from any liability under any legal theory in connection with the use, modification, sale or disclosure of such Feedback. By providing any Feedback to Bravado, you hereby grant us, to the extent you retain any rights, the unlimited, perpetual right to reuse, redistribute, publish, perform, create derivative works from, modify and otherwise exploit such Feedback without any compensation to you.
Content on the Services
“Content” means the text, graphics, images, software, designs, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services. Content includes without limitation, User Content.
“User Content” means any Content that Users provide to be made available through the Services.
Content Ownership, Responsibility and Removal
By agreeing to these Terms, you also agree to the transfer of your User Content, including any personal data about you, to the United States.
Rights in User Content Granted by You
By making any User Content available through the Services you hereby grant to Bravado a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license, with a right to grant sublicenses, to use, copy, modify (only for formatting purposes), publicly display, publicly perform, and distribute your User Content in connection with operating and providing the Services and Content to you and to other Users and training and improving our Services.
You are solely responsible for all your User Content. You represent and warrant that: (i) you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms; (ii) the User Content that you submit through the Services will be true and accurate; and (iii) neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Bravado on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in Content Granted by Bravado
Subject to your compliance with these Terms, Bravado grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access, view and print the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
For Contractors: Deliverables; IP Ownership
You agree that any tangible deliverables or materials and all intellectual property rights therein created by you, alone or jointly with others, exclusively for a Business (excluding your confidential information) in connection with a Contractor Opportunity (collectively, “Deliverables”) is, to the maximum extent permitted by law, the property of such Business. You hereby irrevocably transfer and assign and agree to irrevocably transfer and assign all intellectual property rights and other ownership rights therein to Bravado. Consequently, Bravado hereby irrevocably transfers and assigns and agrees to irrevocably transfer and assign all intellectual property rights and other ownership rights to such Business. You also agree to assist and cooperate with that Business in all respects to obtain and enforce patents, copyrights, trade secret rights and other legal protections for those contributions you make in connection with the applicable Sales Services and will execute any documents that Bravado or the Business may reasonably request and take such further acts reasonably requested by Bravado or the Business to perfect those rights.
You or your licensors retain ownership of any tangible deliverables or materials and all intellectual property rights therein that are not Deliverables, including any items owned by you or your licensors prior to the date of the applicable Contractor Opportunity or which are developed independently by you outside the scope of the applicable Contractor Opportunity (“Background IP”). You hereby grant to Bravado a non-exclusive, royalty-free, fully paid perpetual, irrevocable, worldwide right and license, under and to the Background IP incorporated in or otherwise necessary to use a Deliverable solely for the purpose of sublicensing such Background IP to the applicable Business to use such Deliverable. Consequently, Bravado hereby grants a non-exclusive, royalty-free, fully paid perpetual, irrevocable, worldwide right and license, under and to such Background IP to the applicable Business for the applicable Business to use such Deliverable.
Member understands that information of a confidential or secret nature about a Business may be disclosed to Member, including in connection with a Contractor Opportunity, such as product plans, business strategies and financial information (collectively, “Business Confidential Information”) and Member agrees both during and after Member’s use of the Services to keep and hold all such Business Confidential Information in strict confidence and trust. Member agrees not to disclose any Business Confidential Information without the prior written consent of the applicable Business, except as may be necessary to provide the Sales Services. Business Confidential Information will not include information which: (i) is now, or hereafter becomes, through no act or failure to act on Member’s part, generally known or available to the public; (ii) was acquired by Member before receiving such information from the applicable Business and without restriction as to use or disclosure; (iii) is rightfully furnished to Member by a third party without restriction as to use or disclosure; or (iv) is independently developed by Member without use or access to the Business Confidential Information.
In connection with a Contractor Opportunity, Member will comply in all respects with the applicable Business’ corporate information and physical security policies (including policies with respect to protection of proprietary information and other policies regarding the use of computing resources) as in effect from time to time and provided to Member in writing.
General Prohibitions and Bravado’s Enforcement Rights
You agree not to do any of the following:
Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third-party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, forged, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (vii) promotes illegal or harmful activities or substances; (viii) attempts to sell a product(s); (ix) is self-promoting or intends to drive traffic to a third-party site; or (x) is spam or commercial content.
Use, display, mirror or frame the Services or any individual element within the Services, Bravado’s name, any Bravado trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Bravado’s express written consent;
Access, tamper with, or use non-public areas of the Services, Bravado’s computer systems, or the technical delivery systems of Bravado’s providers;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Bravado or any of Bravado’s providers or any other third party (including another User) to protect the Services or Content;
Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive, or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
Impersonate or misrepresent your affiliation with any person or entity;
Engage in coordinated inauthentic behavior or disinformation campaigns or generate deceptive or misleading comments, reviews or Testimonials;
Utilize input or output of our Beta Services to train an AI model or have an AI model trained (e.g., “model scraping”);
Violate any applicable law or regulation;
Encourage or enable any other individual to do any of the foregoing; or
Use the Services in any manner that we reasonably believe to be an abuse of or fraud on the Bravado War Room or Commission Store as further explained in the Bravado Commission Points Program Terms and the War Room FAQ.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, temporarily or permanently suspend or ban access to the Services, or remove Commission Points (as used in the Services and defined in the Bravado Commission Points Program Terms), at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services, and consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Bravado respects copyright law and expects its users to do the same. It is Bravado’s policy to terminate in appropriate circumstances Users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Bravado’s Copyright Policy, for further information.
AI Tools or Other Beta Services
We may offer beta products and other AI tools (collectively, “Beta Services”) as part of our Services. These Beta Services are still under development and may not be fully functional or may have bugs. We encourage you to use caution when using these products and offerings, and to report any bugs or issues you encounter to us. Additionally, it is important to note that, similar to any new technology that leverages large language models and heuristics, the AI tools have its limitations that we want to be upfront about. In addition to, and without limiting the warranty disclaimers below (which also apply to the Beta Services), by using our Beta Services, you acknowledge and accept that:
We do not guarantee that any of our Beta Services will be error-free, or that they will perform as intended in all circumstances. Our Beta Services may produce unexpected results or errors, and we are not responsible for any damages or losses resulting from such errors or results.
You are responsible for ensuring that any use of information or output generated by the Beta Services complies with all applicable laws and regulations.
We reserve the right to modify or discontinue any of our Beta Services at any time, without prior notice.
You acknowledge and agree that the quality of the input for any AI tool will impact the quality of the output. If the input is inaccurate, incomplete, or inconsistent, the output will likely reflect such deficiencies. Due to the nature of artificial intelligence and machine learning, output may not be unique across users of the services and the Beta Services may generate the same or similar output for you or a third party or different output with the same prompt or other input.
Additional use restrictions may apply. For example, if you use and access our Beta Service called SalesGPT, you acknowledge and accept that you are also subject to, and must comply with, OpenAI’s additional use restrictions listed in their Usage Policies here, which is incorporated into these Terms.
Links to Third-Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content (or the accuracy, truthfulness or reliability of such content), products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
Contractor Opportunity. In connection with any Contractor Opportunity, Members will be paid a fee based on his/her/their performance, whether in connection with a qualified meeting or deal initiated by such Member, as further described in this Section (the “Engagement Fee”). Additional details about the pricing, mechanics and timing for the Engagement Fee are outlined in the Statement of Work for the applicable Contractor Opportunity. Member authorizes Bravado to collect the Engagement Fee from the applicable Business on Member’s behalf. Bravado or its payment processor will pay to Member the Engagement Fee as specified in any applicable Statement of Work, less taxes if applicable, processing fees and any other fees to which Bravado collects or is entitled hereunder, including the retained percentage of the Engagement Fee specified in the applicable Statement of Work.
For clarity, Member acknowledges and agrees that Bravado’s obligation and ability to pay Member the Engagement Fee is dependent on Bravado receiving and clearing the Engagement Fee from the applicable Business. Member will not accept any fees or other compensation for the Sales Services outside of the Services’ payment functionalities, which may be powered through one or more third-party payment processors. Member must provide Bravado with a valid checking account for Bravado to make deposits (or issue refunds) for the Engagement Fee. If a Business disputes the qualified meetings or qualified deals that Member initiated in good faith, Member will work in good faith with Bravado to resolve the dispute in an expeditious manner, including, without limitation, providing documents or other evidence reasonably necessary for Bravado or the applicable Business to verify the same.
Taxes. Member will report to all applicable government agencies as income all Engagement Fees received by Member pursuant to these Terms. Member will be solely responsible for payment of all withholding taxes, social security, workers’ compensation, unemployment and disability insurance or similar items required by any government agency. Member will not (unless Member is engaged for an Employment Opportunity) be entitled to any benefits paid or made available by Bravado or Business to their employees, including, without limitation, any vacation or illness payments, or to participate in any plans, arrangements or distributions made by Bravado or Business pertaining to any bonus, stock option, profit sharing, insurance or similar benefits. Member will indemnify and hold Bravado and Business harmless from and against all damages, liabilities, losses, penalties, fines, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or relating to any obligation imposed by law on Bravado or Business to pay any withholding taxes, social security, unemployment or disability insurance or similar items in connection with compensation received by Member pursuant to these Terms. Bravado will issue an IRS Form 1099 for the payments made to Member in connection with the Sales Services provided by Member. Members must submit a valid and completed W-9, and any other relevant tax information required by Bravado, to Bravado before starting the Contractor Opportunity.
Employment Opportunity. In connection with any Employment Opportunity, the applicable Business will pay you the salary and any incentive compensation in accordance with the Employment Agreement.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may terminate any or all Contractor Opportunity or these Terms for convenience by providing Bravado with 14 days’ prior written notice, either by contacting firstname.lastname@example.org or via termination features in your account, if available. By terminating these Terms, you also agree to terminate all of your active Contractor Opportunities. You acknowledge that Businesses also have a right to termiante a Contractor Opportunity for convenience by providing Bravado with 14 days’ prior written notice.
Upon any termination, discontinuation or cancellation of Services or your Member Account, the following provisions will survive: Feedback, Content and Aggregate Data Ownership, Responsibility and Removal; Deliverables; IP Ownership; Confidentiality; Fees (but solely for any outstanding amounts); Termination; Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution, and General Terms.
YOUR USE OF THE SERVICES, ITS CONTENT AND ANY AMENITIES OR ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE SERVICES WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR RECONSTRUCTION OF ANY LOST DATA. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY AMENITIES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY CONTENT POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
THE SERVICES AND ITS CONTENT AND ANY AMENITIES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services (including any connections made or suggested via the Services), the Contractor Opportunities or Employment Opportunities will meet or satisfy your expectations, assumptions or requirements. We also make no warranty that the Services will be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, availability, copyright compliance, legality, decency, or reliability of any information (including generated by the Beta Services) or Content on the Services. The foregoing does not affect any warranties which cannot be excluded or limited under applicable law. You are solely responsible for, and assume all risks associated with any information generated by the Beta Services and User Content (including Testimonials) that you or your Reviewer submits and Sales Services. In the event that you have a dispute with any Member, Business or Reviewer, you agree to address such dispute directly with the other party and you release Bravado (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
You will defend, indemnify and hold harmless Bravado and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content (including without limitation, information in the Testimonials), (iii) your relationship with any Business, including, if applicable, your engagement by one or more Businesses as independent contractors on, via the Services, (iv) your Sales Services, (v) your violation of these Terms or (vi) any of your acts or omissions that results in: (A) personal injury (or death) or tangible or intangible property damage (including loss of use); or (B) the violation of any law, statute, ordinance, or regulation. For any matter for which you are required to provide indemnification under these Terms, Bravado may, in its sole discretion, assume exclusive defense and control, at your sole cost and expense. You agree to cooperate with Bravado in the defense of any claim or action. You agree that you will not settle any such claim without the advance written consent of Bravado.
Limitation of Liability
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRAVADO WILL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICES INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BRAVADO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL BRAVADO’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS PAID BY BRAVADO TO YOU IN CONNECTION WITH THE SERVICES IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO BRAVADO, AS APPLICABLE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BRAVADO AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Bravado agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) 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 (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Bravado with written notice of your desire to do so by email or regular mail at email@example.com or 268 Bush Street, #2734, San Francisco, CA 94104 within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Bravado with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Bravado with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Bravado with an Arbitration Opt-out Notice, you acknowledge and agree that you and Bravado 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. Further, unless both you and Bravado otherwise agree in writing, 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. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Bravado otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Bravado submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Bravado will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Bravado will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Bravado changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Bravado’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Bravado in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Any notices or other communications provided by Bravado under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Bravado’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Bravado. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or otherwise the Service, please contact Bravado at email@example.com or 268 Bush Street, #2734, San Francisco, CA 94104.