Last Modified: October 31, 2016
Please read this the Terms of Service carefully as its terms limit the liability of Predictive Science, Inc. and include a binding arbitration clause. You must agree to the terms of this Agreement to access and use the Predictive Science Platform. These Terms of Service will be binding upon electronic acceptance by you or an authorized representative at your organization.
This is a contract between you, including any entity that you represent through your acceptance of the Terms of Service, (“User” or “you”) and Predictive Science, Inc. (“Predictive Science”, “we” or “us”), a Delaware corporation with its principal place of business at 401 Congress Avenue, Austin TX 78701.
The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Service”), govern your access to and use of the Predictive Science Platform, including any content, functionality and services offered on or through predictivescience.com. Capitalized terms are defined throughout the Agreement and in section 15 (Definitions).
1.1 Changes to the Terms of Service
We may revise and update the Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them. Any changes to the dispute resolution provisions set forth in section 13 (Governing Law and Dispute Resolution), will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted.
It is our policy to post any changes we make to the Terms of Service, including other documents incorporated herein, on the Site. The date the Terms of Service were last revised is identified at the top of the page. Your continued use of the Predictive Science Platform means that you accept those changes. You should visit the Site regularly to ensure that you are aware of the latest version of the Terms of Service.
You are responsible for ensuring we have an up-to-date active and deliverable email address for you, and for periodically visiting our Site and the Terms of Service to check for any changes.
The Predictive Science Platform is not intended for persons under 15 years of age. By using the Predictive Science Platform, you represent and warrant you are at least 18 years of age, or, if you are under 18 years of age (but 15 years of age or older), then you affirm the you possess the legal consent of your parent or guardian to access and use the Predictive Science Platform. Predictive Science may, in its sole discretion, modify all or any portion of the Predictive Science Platform for those persons under 18 years of age or for any other Users.
2. THE PREDICTIVE SCIENCE PLATFORM
2.1 Purpose of the Predictive Science Platform
The Predictive Science Platform allows Clients and Providers to identify each other and enable them to buy and sell Services online. Under the Terms of Service, Predictive Science provides services to both Clients and Providers, including curating Clients and Providers, providing tools to facilitate project work between Clients and Providers, recruiting and staffing services for Clients to hire Providers, training services to enhance Provider capabilities, facilitating the formation of contracts between Clients and Providers, and managing disputes related to those contracts.
Client posts projects and Predictive Science curates the best Providers to apply for the projects. Providers create profiles within the Predictive Science Platform and bid on projects. Predictive Science’s curation of Providers to apply for projects is according to various factors that may change from time to time and that are selected in Predictive Science’s sole discretion. Predictive Science makes no representations or guarantees that any Provider will be selected to apply for any particular project or for any projects at all. Prior selection of a Provider to apply for one project shall not represent that the Provider will again be selected for other projects.
2.2 When a Client agrees on the Provider and on terms, a Service Contract is formed directly between the Client and Provider subject to the provisions set forth in section 4.8 (No Right to Interest
Predictive Science has exclusive rights to any interest that Predictive Science may receive for any payments or pre-payments made by you, and you grant all rights to Predictive Science to receive such interest.
Service Contract Terms Between Client and Provider). Predictive Science pays Providers in connection with their delivery of Services through the Predictive Science Platform. Predictive Science collects payment from Clients in connection with their request for Services through the Predictive Science Platform.
If a Client chooses to employ a Provider, the Client pays Predictive Science a Finding Fee set forth in section 2.4 (Finding Fee).
2.3 Predictive Science Fees
Predictive Science charges Clients and Providers a fee for connecting Providers with the Clients that hire them and for collecting payment for the Providers’ work. This fee is 30% of a Client’s payments for a Provider’s work. If a Provider elects disbursement in foreign currency, Predictive Science adds a conversion fee of 1.5% to the spot rate quoted by its foreign exchange vendor.
2.4 Finding Fee
Notwithstanding the provisions set forth above, Users may agree to provide or receive Services outside of the Predictive Science Platform with Users identified through the Predictive Science Platform according to the following conditions:
If a Provider provides Services to a Client more than three years after the Client identifies the Provider through the Predictive Science Platform, no Predictive Science Fees or Finding Fee applies.
If you employ a Provider or if Services are rendered outside of the Predictive Science Platform less than three years after you identify the Provider through the Predictive Science Platform, payments for locating the provider for employment or for the Services will not be subject to the Predictive Science Fees, if you pay Predictive Science a Finding Fee in accordance with the procedure set forth below:
- Prior to employing the Provider or contracting outside of the Predictive Science Platform to receive Services from a Provider identified through the Predictive Science Platform, you will notify Predictive Science in writing of your intent to pay the Finding Fee in lieu of the Predictive Science Fees due through the Predictive Science Platform.
- You provide a good faith estimate of the Provider’s annual salary or hourly rate for the Services multiplied by 2000. For example, if the Provider’s annual salary was $200,000 or the Provider’s rate was $100 per hour, then the good faith estimate would be $200,000.
- You pay Predictive Science 30% of the good faith estimate.
2.5 Ancillary Content and Services
From time to time Predictive Science makes available certain value-added content or services for a fee. Should you elect to use such content or services, you agree to pay the required fee as specified in the services registration or content purchase pages.
If you use a portion of the Predictive Science Platform that requires a subscription fee, your right to access and obligation to pay for access to that portion of the Predictive Science Platform will automatically renew, unless we terminate it, or you notify us of your decision to terminate by telephone or email to customer service for the Predictive Science Platform. You must cancel any subscription before it renews in order to avoid billing of the subscription fee for the renewal term. All fees and charges are nonrefundable and there are no refunds or credits for partially used subscription periods.
3. GENERAL POLICIES
3.1 User Content Transmitted Through The Predictive Science Platform
Apart from Work Product, there are several types of content or other materials that you may upload or transmit to or through the Predictive Science Platform, including, but not limited to, resumes, presentations, community postings, and profile information (collectively, “User Content”).
With respect to User Content, you represent and warrant that you own all right, title, and interest in and to such User Content, including, without limitation, all copyright and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Predictive Science and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Predictive Science Platform or, with the exception of Work Product, the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. You also grant each User a non-exclusive license to access the User Content you post through the Predictive Science Platform, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Predictive Science Platform and the Site and under the Terms of Service.
The Predictive Science Platform contains content created by us, by third parties, and by our Users. This content includes, among other things, reports, comments, opinions, white papers, webinars and software downloads. It also includes information about products and services offered by parties other than Predictive Science, such as product descriptions, specifications, pricing, availability, and performance. We do not guarantee the accuracy, the integrity, or the quality of the content on the Predictive Science Platform, and you may not rely on any of this content. Without limitation, we are not responsible for postings by Users in reports, product ratings, product reviews, opinions, message boards, feedback, or any other sections of the Predictive Science Platform. You should not rely on such information in situations where its inaccuracy would cause you to suffer any loss (see section 9 (Disclaimer of Warranties) and section 10 (Limitation of Liability) below).
You may not post or transmit any information which is libelous or defamatory, or which discloses private or personal matters concerning any person. You may not post or transmit any message, data, image or program that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive; that encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or that is otherwise inappropriate.
You may not copy or use personal identifying or business contact information about other users or members without their permission. Unsolicited e-mails, mailings, telephone calls, or other communications to individuals or companies whose contact details you obtain through the Predictive Science Platform are prohibited. Except where expressly permitted, you may not post or transmit charity requests; petitions for signatures; franchise, distributorship, sales representative agency arrangements, or other business opportunities, club memberships, chain letters, or letters relating to pyramid schemes. You may not post or transmit any advertising, promotional materials or any other solicitation of other users or members to use or buy products, goods or services except in those areas (e.g., a classified bulletin board) that are designated for such purpose and as expressly permitted.
You also understand and agree that Predictive Science may, but is not obligated to, review and delete or remove (without notice) any User Content in its sole discretion, including without limitation User Content that in Predictive Science’s sole judgment violates Terms of Service or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of members, users or others.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Predictive Science Platform, provided by you to Predictive Science are non-confidential and Predictive Science will be entitled to the unrestricted use and dissemination of these submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Predictive Science may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce the Terms of Service; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Predictive Science, its users and the public. You understand that the technical processing and transmission of the Predictive Science Platform, including your content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
3.2 No Malicious, Unauthorized, or Unintended Use
You will not access (or attempt to access) the Predictive Science Platform by any means other than the interface provided, and you will not use information from the Predictive Science Platform for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Predictive Science Platform. You will not upload or attach an invalid, malicious, or unknown file. You will not insert any external links that may be malicious or unknown to you, or that may be used for offering any goods or services other than Services.
You may not change, reorganize, modify, copy, reverse engineer, de-compile, disassemble, attempt to derive the source code of, or create derivative works from the Predictive Science Platform, any updates, or any part thereof for any purpose, including in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Predictive Science Platform, (c) remove, change or replace any Predictive Science trademarks, logos, copyrights or any other branding elements, (d) modify, hide, obscure, disable or otherwise render inoperable any portion of the user interface including, but not limited to, the display of advertisements and promotions within the Predictive Science Platform, or (e) copy any ideas, features, functions or graphics of the Predictive Science Platform. You agree not to “scrape” or dis-aggregate data from the Site (whether by manual or automated means), for any commercial, marketing, data compiling, or enhancing purpose, or in order to copy, re-post or re-use data from the Predictive Science Platform for any other service. You also agree not to use or provide software or services that interact or inter-operate with the Predictive Science Platform, e.g. for downloading, uploading, posting, flagging, emailing, search, or mobile use.
3.3 User Profiles, Questionnaires, and Skills Assessments
User’s may create User profiles, which may be reviewed by Predictive Science and other Users to evaluate or for use in pairing Clients and Providers. Users are solely responsible for the information in their profiles, and Predictive Science does not warranty or in any other way represent that any User profile is accurate. Users must provide truthful information for their profiles and falsifying information or misrepresenting any information in a user profiles is a violation of the Terms of Service.
Predictive Science may provide questionnaires to gather information for Predictive Science or other Users to evaluate or for use in pairing Clients and Providers. Users are solely responsible for their responses to these questionnaires, and Predictive Science does not warranty or in any other way represent that any User response is accurate. Users must provide truthful responses to these questionnaires, and any falsifying or misrepresentation of responses is a violation of the Terms of Service.
Predictive Science may provide skills assessments through its own means or through third parties, and are optional for Providers. Skills assessment results are meant as information only in evaluating Providers and are in no way a certification by Predictive Science of any Provider’s ability to perform Services associated related to the skills assessment. Manipulating assessment scores by providing or receiving answers to the assessment, allowing others to take the assessment or any other attempt at falsifying credentials is a violation of the Terms of Service.
3.4 Identity and Account Security
Predictive Science reserves the right to validate User information at any time, including but not limited to validation against third-party databases or the verification of one or more official government or legal documents that confirm the User’s identity. You authorize Predictive Science, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. Failure to provide information about you or your business when requested is a violation of the Terms of Service. You are solely responsible for ensuring and maintaining the secrecy and security of your Predictive Science account password. You agree not to disclose this password to anyone (or, if you are an Agency, not to disclose this password to anyone who is not a subcontractor of the Agency), and shall be solely responsible under all circumstances for any use of or action taken through the use of such password on the Predictive Science Platform. You must notify Predictive Science immediately if you suspect that your password has been lost or stolen. By using your Predictive Science User account, you acknowledge and agree Predictive Science’s account security procedures are commercially reasonable. Furthermore, you are solely responsible for also ensuring and maintaining the secrecy and security of any other account, including social-media accounts, if it is used to login to the Predictive Science Platform.
3.5 Disintermediation Prohibited
Client shall make all payments relating to, or in any way connected with, a Service Contract (including, without limitation, bonuses) through the Predictive Science Platform. Any action that encourages or solicits complete or partial payment outside of the Predictive Science Platform is a violation of the Terms of Service. If a Client or Provider violates this section of the Terms of Service, the Client or Provider will owe Predictive Science an amount with respect to each Service Contract equal to the greater of (a) $25,000; or (b) five times the applicable fees had the payments been processed through the Predictive Science Platform.
For clarity, you are agreeing to not circumvent the payment methods offered by the Predictive Science Platform. By way of illustration and not in limitation of the foregoing, you must not: (a) submit proposals to, solicit, contract, hire, manage or pay any Users identified through the Predictive Science Platform other than through Predictive Science Platform; (b) accept proposals from, contact, deliver services to, invoice or receive payments from parties identified through the Predictive Science Platform other than through the Predictive Science Platform; or (c) invoice or report on the Predictive Science Platform an invoice or payment amount lower than that actually agreed between Client and Provider through the Predictive Science Platform. You agree to notify Predictive Science immediately if another User improperly contacts you or suggests making or receiving payments outside of the Predictive Science Platform. If you are aware of a breach or potential breach of this non-circumvention policy, please submit a confidential report to Predictive Science by sending an email message to: firstname.lastname@example.org.
3.6 Enforcement of the Terms of Service
Predictive Science has the right, but not the obligation, to suspend or cancel your access to the Predictive Science Platform if it believes that you have violated or acted inconsistently with the letter or spirit of the Terms of Service or violated Predictive Science’s rights or those of another party.
Without limiting Predictive Science’s other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide you with any further access to the Predictive Science Platform if (a) you breach any terms and conditions of the Terms of Service or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users, or Predictive Science. Once suspended or terminated, you MAY NOT continue to use the Predictive Science Platform under a different account or re-register under a new account. If you attempt to use the Predictive Science Platform under a different account, we reserve the right to reclaim available funds in that account or use an available payment method to pay for any amounts outstanding for that account. When your User account is canceled, you may no longer have access to any parts of the Predictive Science Platform, including data, messages, files, or other material you keep on the Predictive Science Platform.
4. INVOICES, PAYMENTS, AND DISBURSEMENTS
4.1 Formal Invoices and Taxes
Predictive Science shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Provider Fees. Instead, Provider shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Provider Fees and for issuing any invoices so required.
Provider shall also be solely responsible for: (a) determining whether Provider or Predictive Science is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Provider Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Predictive Science, as appropriate; and (b) determining whether Predictive Science is required by applicable law to withhold any amount of the Provider Fees, notifying Predictive Science of any such requirement and indemnifying Predictive Science (either by permitting Predictive Science to offset the relevant amount against a future payment of Provider Fees or by refunding to Predictive Science the relevant amount, at Predictive Science’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. Predictive Science shall have the right, but not the obligation, to audit and monitor Provider’s compliance with applicable tax laws as required by this section 4.8. Further, in the event of an audit of Predictive Science, Provider agrees to promptly cooperate with Predictive Science and provide copies of Provider’s tax returns, and other documents as may be reasonably requested for purposes of such audit.
4.2 Payment Methods
You hereby authorizes Predictive Science to run credit card authorizations on all credit cards provided by you, to store credit card details as your method of payment for Services or for any other fees, and to charge your credit card (or any other form of payment accepted by Predictive Science or mutually agreed to between you and Predictive Science).
4.3 Not an Escrow Service
Predictive Science does not operate an escrow service. The Predictive Science Platform does, however, have a feature, which allows pre-payment to be made with respect to a Provider for a Service Contract.
4.4 Disbursements to Providers for Hourly-Rate Contracts
4.4.1 Timesheet Approval and Disputes
For Hourly-Rate Contracts, it is the Client’s responsibility to review Timesheets of every Service Contract on a weekly basis before approving the billing. Timesheets that are not approved or disputed within one week will be deemed automatically approved by the Client. Once Timesheets are approved by the Client, they can no longer be disputed, and the approval (whether affirmative or automatic) is irrevocable. Any associated payments can only be refunded by the Provider.
4.4.2 Release of funds to Providers
You irrevocably agree that Predictive Science will automatically disburse funds to Providers according to Hourly-Rate Contracts no more than one month after funds become payable to Providers (or within six months, for amounts less than $100). Funds become payable to Providers for Hourly-Rate Contracts upon any of the following conditions:
- Client and Provider both agree in writing to disbursement of the funds to the Provider.
- Client approves all or a portion of Provider’s Timesheets. This condition applies only to and for time of Timesheets that has been approved by Client.
- Client has not disputed time of Provider’s Timesheets within one week of submission of the Timesheets by Provider.
- Predictive Science reviews Client’s disputed time of Provider’s Timesheets and determines, in its sole discretion, that the disputed time is appropriate for the applicable Services or Service Contract or that an adjustment is appropriate to the Timesheets.
- Client and Provider resolve disputed time of Provider’s Timesheets without the assistance of Predictive Science, and Client approves the Timesheets.
- Issuance of a final order of a court of competent jurisdiction from which an appeal is not taken.
- Predictive Science believes, in its sole discretion, that Client or Provider has committed or is attempting to commit fraud, abuse, or violation of the Terms of Service, in which case Predictive Science may take such actions as it deems appropriate in its sole discretion and in accordance with applicable law.
4.4.3 Disputes Between Client’s and Providers
For Hourly-Rate Contracts, Client may dispute Provider’s time reported in the Provider’s Timesheets within one week of submission of the Timesheets by the Provider. Disputes can only address the hours billed, not the quality of the Services or Work Product.
If Client disputes Provider’s time reported in the Provider’s Timesheets, Client and Freelancer are encouraged to resolve the dispute between themselves and will have one week from the day of Client’s dispute to do so. If Client and Provider resolve the dispute within one week, and Client approves the Timesheets, then Client certifies that it accepts the Timesheets and waives any further right to dispute. If, on the other hand, Client and Provider fail to come to a resolution, Predictive Science will promptly investigate the Timesheets to determine, in its sole discretion, whether an adjustment is appropriate. Predictive Science’s determination shall be final. You acknowledge and agree that Predictive Science is not and will not be a party to any such dispute.
4.4.4 Payment Guarantee
Predictive Science does not guarantee payment to Providers working on Hourly-Rate Contracts unless the Provider’s Timesheets have been approved by the Client and payment has been made to Predictive Science by the Client, the time represented is captured online using the Predictive Science Timesheets, and the work performed and captured pertains directly to the Service Contract billed (the “Payment Guarantee”). Determination of whether these criteria have been met is at the sole discretion of Predictive Science. The Payment Guarantee will not apply to Providers or Service Contracts in violation of the Terms of Service, where the Provider does not meet clear specifications of the Service Contract, where the Provider is aware of or complicit in another User’s violation of the Terms of Service, or where there is any other involvement in fraudulent activities or abuse of the Payment Guarantee.
4.5 Disbursements to Providers for Fixed-Price Contracts
You irrevocably agree that Predictive Science will automatically disburse funds to Providers according to Fixed-Price Contracts no more than one month after funds become payable to Providers (or within six months, for amounts less than $100). Funds become payable to Providers for Fixed-Price Contracts upon any of the following conditions:
- Client accepts the Services or Work Product of Provider for all of a Service Contract or for designated tasks or milestones within a Service Contract. Client’s acceptance of Services or Work Product of Provider for designated tasks or milestones within a Service Contract will only apply to the release of funds applicable to those designated tasks of milestones.
- Client and Provider both agree in writing to disbursement of the funds to the Provider.
- Issuance of a final order of a court of competent jurisdiction from which an appeal is not taken.
- Predictive Science believes, in its sole discretion, that Client or Provider has committed or is attempting to commit fraud, abuse, or violation of the Terms of Service, in which case Predictive Science may take such actions as it deems appropriate in its sole discretion and in accordance with applicable law.
4.6 Abandoned Service Contracts
A Service Contract will be marked as “abandoned” when the following conditions are met:
- After 90 days have passed from the Client’s last message to the Provider for the Service Contract and the Service Contract is not marked as complete; and
- The Provider posts a message to the Client in the project room for the Service Contract. If the Client has not responded in 3 business days to the Provider’s message, Predictive Science will attempt to email the Client. If the Client does not respond within three 3 more business days to Predictive Science, Predictive Science will mark the Service Contract as abandoned.
If a Service Contract is marked abandoned by Predictive Science, this indicates that the Client has stopped responding and communicating with the Provider, regardless of Service Contract being completed by the Provider. Service Contracts marked as abandoned will result in Predictive Science releasing any of the Client’s pre-payments to Predictive Science, the pre-payments will become the property of Predictive Science.
In its sole determination and discretion, Predictive Science may or may not make voluntary payment to a Client or Provider for Service Contract marked as abandoned. Predictive Science may exercise its unrestricted discretion and make its determination based on factors such as evidence of work completed, available project logs, emails, or other forms of communications provided by the Provider and relating to the abandoned Service Contract.
If a Client fails to pay amounts due under the Terms of Service, whether by cancelling Client’s credit card, initiating an improper chargeback, or any other means, Client’s Predictive Science account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse Predictive Science for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of 1.5% per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, Predictive Science may setoff amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
4.8 No Right to Interest
Predictive Science has exclusive rights to any interest that Predictive Science may receive for any payments or pre-payments made by you, and you grant all rights to Predictive Science to receive such interest.
5. SERVICE CONTRACT TERMS BETWEEN CLIENT AND PROVIDER
Unless otherwise agreed to in a writing signed by both Client and Provider, the terms and conditions of the Service Contract are as set forth in sections 5.1 through 5.11 below (“Standard Terms”). Client and Provider may not agree to any other terms and conditions that affect the rights or responsibilities of Predictive Science.
Provider shall perform Services in a professional and workmanlike manner and shall timely deliver any agreed-upon Work Product.
Work performed on Hourly-Rate Contracts under a Provider’s profile must be performed by the Provider represented.
If the Provider wishes to subcontract with third parties to perform Services on behalf of the Provider on Hourly-Rate Contracts, the Provider must do so as an Agency and identify itself on the Predictive Science Platform as an Agency. You agree and acknowledge that an Provider Agency’s employees or contract personnel are not employees of Predictive Science or Client. An Agency is solely responsible for all wages, costs, unemployment insurance, compensation insurance, and expenses of the Agency’s employees or contract personnel and has the sole and exclusive right to supervise and control them. You acknowledges and agrees that neither an Agency, nor any of its employees or agents, shall have any claim under the Terms of Service for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee compensation or benefits of any kind from Predictive Science or Client.
5.3 Client Payments and Billing
Client shall pay the agreed-upon amount for time spent (under Hourly-Rate Contracts) or the approved project (under Fixed-Price Contracts) to Predictive Science. For Hourly-Rate Contracts, Client is billed for hourly Provider Fees on a weekly basis. For payments under Fixed-Price Contracts, Client is billed immediately. For Timesheets that are not approved or disputed by the Client within one week of their submission by the Provider, the Timesheets will be automatically approved, and Predictive Science will charge fees and make payments in accordance with the Terms of Service.
5.4 Termination of a Service Contract
Under Hourly-Rate Contracts, either party may terminate the Service Contract at any time for any or no reason. However, the Client remains obligated to pay for any time the Provider worked prior to termination.
Under Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments already made. The Provider may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Provider may terminate only with the Client’s consent or after the payment has been refunded.
5.5 Client Deliverables
Client grants Provider a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Deliverables as necessary for the performance of Services under the Service Contract. Client reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Client, Provider shall immediately return all Client Deliverables to the Client and Provider further agrees to purge all copies of Client Deliverables and Work Product contained in or on Provider’s premises, systems, or any other equipment otherwise under Provider’s control. Within 10 days of Client’s request, Provider agrees to provide written certification to the Client that all Client Deliverables have been returned or purged.
5.6 Work Product
Provider agrees to assign all discoveries and inventions, which Provider makes or develops as a result of performing the Service Contract during its term, alone or in conjunction with any other party (all of the foregoing being hereinafter referred to as the “Inventions”). The Provider, however, is unable to assign rights to software, technology, or other intellectual property pre-existing the Service Contract, whether such pre-existing intellectual property is owned by Provider or a third party including, without limitation, code written by proprietary software companies or developers in the open source community. Only Inventions created specifically for and paid for by the Client will be assignable to the Client. The Provider hereby agrees that, in consideration of the Client’s agreement to engage Provider as a consultant and Provider’s compensation for the Services rendered to the Client, Provider shall not reuse components of the Work Product in the Client’s Field of Interest. The Client will specify its Field of Interest in the project description narrative when posting the Project on the Predictive Science Platform. Inventions, as defined above, shall be owned by Provider until payment has been made by Client, at which time Provider will be deemed to have assigned all Inventions to Client.
5.7 Worker classification
Client assumes all liability for proper classification of Providers as independent contractors or employees based on applicable legal guidelines. Neither the Terms of Service nor Service Contract create a partnership or agency relationship between Client and Provider. Provider does not have authority to enter into written or oral—whether implied or express—contracts on behalf of Client. Provider acknowledges that Predictive Science does not, in any way, supervise, direct, or control Provider’s work or Services performed in any manner.
Predictive Science does not set Provider’s work hours or location of work. Predictive Science is neither involved in determining if the compensation will be set at an hourly or fixed rate nor in setting the particular rate for a Service Contract. From time to time Predictive Science may, in its sole discretion, provide Client or Provider with information or materials in order to improve the Predictive Science Platform or otherwise enhance Predictive Science’s business, Predictive Science is not under any obligation to provide Provider with training, any equipment, labor, or materials needed for a particular Service Contract. Any training, equipment, labor, information, or materials provided by Predictive Science to Client or Provider should not be construed as creating any agency, employee, representative, or partnership relationship between Predictive Science and Client or Provider. Predictive Science will not deduct any amount for withholding, unemployment, social security, or other taxes as it would in the case of an employee. Client and Provider will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Provider’s performance of Services.
For Service Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Provider. A Provider classified as independent contractor is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client.
Client and Provider agree to indemnify, hold harmless and defend Predictive Science from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Provider was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Provider was misclassified (including, but not limited to, taxes, penalties, interest and attorneys’ fees), any claim that Predictive Science was an employer or joint employer of Provider, as well as any claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits. Nothing in this section limits the indemnification terms in section 11 (Indemnification).
5.8 Audit Rights
Client and Provider each shall (a) create and maintain records to document satisfaction of its obligations under the Terms of Service and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (b) provide copies of such records to Predictive Science upon request. Predictive Science, or Predictive Science’s advisors or agents, shall have the right, but not the obligation, to routinely, but no more frequently than annually, audit Provider’s operations and records to confirm compliance. Nothing in this provision should be construed as providing Predictive Science with the right or obligation to supervise or monitor the actual Services performed by Provider.
5.9 Third Party Beneficiary
Predictive Science is hereby named as a third-party beneficiary of each Service Contract.
Service Contracts shall be governed by section 7 (Confidential Information), section 13 (Governing Law and Dispute Resolution), section 14 (Other Provisions), and section 15 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
5.11 Entire Agreement
The terms and conditions set forth in this section 4.8 and any non-conflicting additional or different terms expressly agreed by Client and Provider shall constitute the entire agreement and understanding of Client and Provider with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, or other communications between them.
6. ACKNOWLEDGMENTS BY USER OF PREDICTIVE SCIENCE’S ROLE
6.1 Service Contracts
You expressly acknowledge, agree, and understands that: (i) the Predictive Science Platform is merely a venue where Users may act as Clients or Providers; (ii) Predictive Science is not a party to any Service Contracts between Clients and Providers; (iii) Users are not employees of Predictive Science, and Predictive Science does not, in any way, supervise, direct, or control any User’s work or Services; (iv) Predictive Science shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) Predictive Science has no control over Providers or over the Services promised or rendered by Providers; and, (vi) Predictive Science makes no representations as to the reliability, capability, or qualifications of any Provider or the quality, security, or legality of any Services, and Predictive Science disclaims any and all liability relating thereto.
6.2 Proprietary Rights
Predictive Science and its licensors reserve all Proprietary Rights in and to the Predictive Science Platform. User may not use the Predictive Science Platform except as necessary for the purposes of discharging its obligations under the Terms of Service and any Service Contract entered into pursuant to the Terms of Service. Predictive Science reserves the right to withdraw, expand, and otherwise change the Predictive Science Platform at any time in Predictive Science’s sole discretion. User shall not be entitled to create any “links” to the Predictive Science Platform, or “frame” or “mirror” any content contained on, or accessible through, the Predictive Science Platform, on any other server or internet-based device.
6.3 Predictive Science’s Compensation
All Predictive Science Fees are non-refundable, whether or not Service Contracts were satisfactorily completed. All and “Buy-Out” fees are also non-refundable.
6.4 Predictive Science as a Limited Agent
As set forth elsewhere in the Terms of Service, neither the Terms of Service or any Service Contract should be construed as creating or implying any relationship of agency, employment, representative, or partnership relationship between you and Predictive Science.
Nevertheless, from time to time, a User may ask Predictive Science to provide a physical or manually signed copy of the Terms of Service, a Service Contract, or an ancillary document (for example, to enable a User to withdraw payments from User’s foreign bank account). User hereby appoints Predictive Science as its agent for the limited purpose of executing documents that confirm User’s activities on the Predictive Science Platform. Predictive Science will act on User’s behalf and in a clerical capacity, without in any way restricting Predictive Science’s rights or expanding Predictive Science’s obligations under this Agreement or any Service Contract. Each User appoints Predictive Science as its agent to execute an Act of Acceptance or equivalent instrument on the User’s behalf documenting payments made or to be made to Providers or to Predictive Science, if another User so requests.
7. CONFIDENTIAL INFORMATION
To the extent a Client or Provider provides Confidential Information to the other, the recipient shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not: (a) disclose Confidential Information to anyone except, in the case of Predictive Science, to any Client or Provider engaged in a Service Contract; and (b) use the Confidential Information, except as necessary for the performance of Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through the Predictive Science Platform for use by Provider).
If and when Confidential Information is no longer needed for the performance of Services for the relevant Service Contract, or at the Client’s or Provider’s written request (which may be made at any time at Client’s or Provider’s sole discretion), Client or Provider (as the case may be) shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Provider, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this section 7.2 within 10 days after the receipt of disclosing party’s written request to certify.
You acknowledge that any Confidential Information uploaded or stored by you on the Predictive Science Platform may be retained in backup or archival copies of the Predictive Science Platform until such time as those backups are overwritten or destroyed.
Without limiting section 7.1 (Confidentiality), Neither Client nor Provider shall publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a Service Contract.
8.1 Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Predictive Science Platform infringe your copyright, you may request removal of those materials (or access to them) from the Predictive Science Platform by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Predictive Science Platform, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated Copyright Agent to receive DMCA Notices is:
401 Congress Avenue, Suite 1540
Austin, Texas 78701
If you fail to comply with the requirements of section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Predictive Science Platform is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under section 512(f) of the DMCA.
8.2 Repeat Infringers
It is our policy in appropriate circumstances to disable or terminate the accounts of users who are repeat infringers.
9. DISCLAIMER OF WARRANTIES
Predictive Science disclaims any responsibility for any harm resulting from your use (or use by your employees, agents or contractors) of the Predictive Science Platform or any third-party software or content accessed in conjunction with or through the Predictive Science Platform. All information provided on or through the Predictive Science Platform is subject to change without notice. Predictive Science disclaims any and all liability for the acts, omissions, and conduct of any third parties in connection with the related to your use of the Predictive Science Platform.
You understand that Predictive Science cannot and does not guarantee or warrant that files available for downloading from the Internet or Predictive Science Platform 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 any reconstruction of any lost data. Predictive Science will not be liable for any loss or damage caused by a distributed denial-of-service attack, virus, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Predictive Science Platform or any services or items obtained through the Predictive Science Platform (including Services and Work Product) or to your downloading of any material posted on the Predictive Science Platform or on any website linked to it.
You use of the Predictive Science Platform, its content and any services or items obtained thought the Predictive Science Platform is at your own risk. The Predictive Science Platform, its content and any services or items obtained through the Predictive Science Platform (including Services and Work Product), are provided on an “as is” and “as available” basis, without any warranties of any kind, either express or implied. Neither Predictive Science not any person associated with Predictive Science makes any warranty or representation with respect to the completeness, security, reliability, quality, accuracy, or availability of the Predictive Science Platform.
Without limiting the foregoing, neither Predictive Science nor anyone associated with Predictive Science represents or warrants that the Predictive Science Platform, its content or any services or items obtained through the Predictive Science Platform (including Services and Work Product) will be secure, timely, accurate, reliable, error-free or uninterrupted, that defects will be corrected, that our Predictive Science Platform or the servers that make it available are free of viruses or other harmful components or that the Predictive Science Platform or any services or items obtained (including Services and Work Product) through the Predictive Science Platform will otherwise meet your needs or expectations or provide specific results.
Predictive Science hereby disclaims all warranties of any kind, whether express or implied, statutory or otherwise, including but not limited to any warranties of security, reliability, timeliness, performance, accuracy, merchantability, non-infringement, or fitness for a particular purpose.
The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.
10. LIMITATION OF LIABILITY
You assume total responsibility for your use of the Predictive Science Platform, any websites linked to it, any content on the Predictive Science Platform, or such other websites, or any services or items obtained through the Predictive Science Platform (including Services and Work Product). Your sole and exclusive remedy against Predictive Science for dissatisfaction with the Predictive Science Platform is to stop using the Predictive Science Platform.
This limitation of liability is part of the bargain between you and Predictive Science. You understand and agree that you use the Predictive Science Platform, any websites linked to it, any content on the Predictive Science Platform, or such other websites, or any services or items obtained through the Predictive Science Platform (including Services and Work Product) at your own discretion and risk and that you will be solely responsible for any costs or damages of any kind resulting from the use of the Predictive Science Platform , any websites linked to it, any content on the Predictive Science Platform, or such other websites, or any services or items obtained through the Predictive Science Platform (including Services and Work Product).
You understand that the Predictive Science Platform may be subject to downtimes for scheduled maintenance, upgrades, repairs, security concerns, emergency outages and matters beyond its control. Predictive Science will not be responsible or liable for any delay, degradation, or failure resulting from or attributable to (a) unusually high usage volumes, (b) failures in any third-party telecommunications services, networks or systems, (c) your or other third party’s negligence, acts or omissions, or criminal acts, (d) any force majeure or other cause beyond its reasonable control or (e) unauthorized access to the Predictive Science Platform, breach of firewalls, or other hacking.
In no event will Predictive Science, its affiliates or their licensors, service providers, employees, agents, officers, or directors be liable for costs or damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, the Predictive Science Platform, and websites linked to it, any content on the Predictive Science Platform, or such other websites, or any services or items obtained through the Predictive Science Platform (including Services and Work Product). This limitation of liability for costs and damages includes direct, indirect, special, incidental, consequential, or punitive damages, include but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether cause by tort (including negligence), breach of contract or otherwise, even if foreseeable and even if Predictive Science was advised of the possibility of such costs or damages.
The foregoing limitations of liability shall apply notwithstanding a failure of essential purpose of any limited remedy. The foregoing does not affect any liability that cannot be excluded or limited under applicable law.
11.1 Indemnification for Violations of the Terms of Service or Proprietary Rights
Each User shall indemnify, defend and hold harmless Predictive Science, its subsidiaries, affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, representatives, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising from or relating to the User’s violation of the Terms of Service or use of the Predictive Science Platform, including any claim or judgement that any Work Product, Service, act, or omission of the User infringes Proprietary rights of any third party.
11.2 Indemnification by Client
Each Client shall indemnify, defend, and hold harmless Predictive Science, its subsidiaries, affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, representatives, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising from or relating to (a) the Client’s use of Services, including without limitation claims by or on behalf of any Provider for worker’s compensation or unemployment benefits, or (b) any Service Contract entered into between the Client and a Provider.
11.3 Indemnification by Provider
Each Provider shall indemnify, defend, and hold harmless Predictive Science, its subsidiaries, affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, representatives, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising from or relating to (a) the Provider’s provision of Services, or (b) any Service Contract entered into between such Provider and a Client.
12. TERM AND TERMINATION
The Terms of Service remain in effect until terminated in accordance with section 12.2 (Termination).
You or Predictive Science may terminate the Terms of Service at any time, with or without cause, effective immediately upon written notice to the other party (or by either party terminating or suspending your User account),
Any termination of the Terms of Service for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and the Terms of Service shall continue to apply with respect to such Service Contracts.
12.3 Consequences of Termination
Termination shall not relieve a Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be charged to Client’s credit card or other form of payment pursuant to section 4.2 (Payment Methods). Subject to section 4.4.3 (Disputes Between Client’s and Providers), Predictive Science shall pay a Provider, in accordance with the provisions of section 4 (Invoices, Payment) for all time recorded in the Timesheets incurred prior to the effective date of the termination.
Predictive Science shall maintain a copy of User Content, Work Product, or other information provided by a User in order to meet its obligations to other Users or contracts in force. Predictive Science may also maintain a copy of User Content, Work Product, or other information provided by a User in backup or archival copies of the Predictive Science Platform until such time as those backups are overwritten or destroyed. Upon termination, your rights to access the Predictive Science Platform and any and all User Content, Work Product, or other information provided on the Predictive Science Platform will terminate.
Sections 6 (Acknowledgments by User of Predictive Science’s Role) through 15 (Definitions) of this Agreement shall survive any termination thereof.
13. GOVERNING LAW AND DISPUTE RESOLUTION
13.1 Governing Law, Venue, and Jurisdiction
All matters relating to the Predictive Science Platform and the Terms of Service and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).
Subject to section 13.2 (Informal Dispute Resolution) and section 13.4 (Mandatory Arbitration Requirement and Class Action/Jury Trial Waiver), any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or the Predictive Science Platform shall be instituted exclusively in the federal courts of the United States, the courts of the State of Texas, or as described in section 13.4 (Mandatory Arbitration Requirement and Class Action/Jury Trial Waiver)below, in each case venue located in the City of Austin. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
13.2 Informal Dispute Resolution
Before filing a claim for arbitration or otherwise seeking relief in a court of law, you agree to first contact and provide notice to Predictive Science to inform its customer support team of your complaint and seek informal resolution. This notice of dispute must include: your name, pertinent account information, a brief description of your dispute, and contact information so that Predictive Science may evaluate the dispute and attempt to informally resolve it. Predictive Science will have 60 days from the date of the notice to informally resolve the dispute, which if successful will avoid the need for further action.
Predictive Science is under no obligation to first contact you or provide notice to you regarding its intention to initiate arbitration or an action in court.
13.3 Small Claims
If Predictive Science is one of the parties to a claim, and for incidents of non-payment concerning amounts $10,000 or less, the claim may be filed as a small claims case in the courts of the State of Texas.
For all other disputes, including non-payment of amounts greater than $10,000, you agree that the disputes shall be subject to the following sections 13.4 (Mandatory Arbitration Requirement and Class Action/Jury Trial Waiver) through 13.5 (Other Remedies).
13.4 Mandatory Arbitration Requirement and Class Action/Jury Trial Waiver
This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision (“Arbitration Provision”) applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a claim within 60 days of the receipt of the applicable notice under section 13.2 (Informal Dispute Resolution), you, Predictive Science, and any of our affiliates agree to resolve any claim for more than $10,000 or non-monetary claim by binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com.
13.4.1 Scope and Conduct of Arbitration.
Arbitration is governed by the United States Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Arbitration Provision applies to any claim the parties may have and survives after your relationship with Predictive Science ends. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Austin, Texas in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS. You and Predictive Science will follow the applicable JAMS rules with respect to arbitration fees. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Any demand must be sent within the time limits that would apply to a party’s claim if it were being resolved in a court and not by arbitration.
A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
13.4.2 Class Action and Jury Trial Waiver
This arbitration provision affects your ability to participate in class, collective or representative actions. Both you and Predictive Science agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding. You agree that you and Predictive Science are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
13.4.3 Right to Opt-Out of Arbitration and Class Action / Jury Trial Waiver
Action is required to protect your legal right to sue Predictive Science in court or to participate in any way in a class action, collective action, private attorney general action or other representative proceeding. You may opt out of the foregoing arbitration and class action / jury trial waiver provision of this Agreement by notifying Predictive Science in writing within 30 days of the effective date of this agreement or your first visit to the Site, whichever is later. Such written notification must be sent to Predictive Science, 401 Congress Avenue Suite 1540, Austin TX 78701, USA Attention: Legal and must include: (1) your individual or your company profile URL(s) on the Predictive Science Platform, (2) your name, (3) address, (4) telephone number, (5) email address, and (6) a clear statement indicating that you do not wish to resolve disputes 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.
If any clause within section 13.4 (Mandatory Arbitration Requirement and Class Action/Jury Trial Waiver is found to be illegal or unenforceable, that clause will be severed from the section and the remainder of the section will be given full force and effect, except that in the event of unenforceability of section 13.4.2 (Class Action and Jury Trial Waiver), the entire Arbitration Provision shall be shall be unenforceable.
13.4.5 Improperly Filed Claims.
If the arbitrator determines that a claim under these provisions was filed for an improper purpose or was frivolous, the arbitrator shall award the non-offending party liquidated damages in the full amount attorneys’ fees and costs plus an administrative fee based on the time expended on the case.
13.5 Other Remedies
Notwithstanding the foregoing, Predictive Science retains the right to seek immediate injunctive or other equitable relief, including any provisional relief required to prevent irreparable harm, in any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights.
14. OTHER PROVISIONS
If you agree to the Terms of Service on behalf of an entity, you represent and warrant that you have the authority to bind that entity to the Terms of Service. In that event, “you” and “your” as used in the Terms of Service will refer and apply to that entity.
14.2 Independent Relationship
Nothing herein will be construed as making any User an employee, agent, or representative of Predictive Science. And the parties should not be construed as joint venturers or partners for any purpose.
14.3 Interactive Computer Service
You acknowledge that Predictive Science is a provider of an interactive computer service and not a publisher under section 230 of the Communications Decency Act of 1996, and not responsible for any User content or other third-party content on the Predictive Science Platform.
If you have comments on the Predictive Science Platform or ideas on how to improve it, please send email to . Please note that by doing so, you grant Predictive Science and other third parties permission to use and incorporate your ideas or comments into the Predictive Science Platform (or other third-party software or content) without further compensation or approval.
14.5 Entire Agreement
The Terms of Service, including the documents incorporated by herein by reference, constitute the entire agreement and understanding of the parties, and supersedes all prior negotiations, understandings, communications, or agreements (oral or written), between the parties about the subject matter of the Terms of Service.
The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Predictive Science drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Predictive Science because of the authorship of any provision of the Terms of Service.
In the event of a conflict between the Terms of Service and any document incorporated by reference, the Terms of Service control.
No modification or amendment to the Terms of Service shall be binding upon Predictive Science unless in a written instrument signed by a duly authorized representative of Predictive Science. For purposes of this section 14.6, a written instrument shall expressly exclude electronic communications such as email and electronic notices other than those explicitly stating that the Terms of Service have been modified.
Updated version of the Terms of Service posted on the Site are considered authorized modifications or amendments to the Terms of Service.
14.7 Side Agreements
Section 14.5 (Entire Agreement) notwithstanding, Clients and Providers may enter into any supplemental or other written agreement that they deem appropriate (for example, confidentiality agreement, work-for-hire agreement, assignment of rights, etc.). The terms and conditions of the Terms of Service, however, will govern and supersede any term or condition in a side agreement that purports to expand Predictive Science’s obligations or restrict Predictive Science’s rights under the Terms of Service.
14.8 No Waiver
No waiver by Predictive Science of any term, condition, right, or claim set forth in the Terms of Service shall be deemed a further or continuing waiver of such term, condition, right, or claim or a waiver of any other term, condition, right, or claim. Any failure or delay of Predictive Science to exercise or enforce any term, condition, right, or claim does not constitute a waiver of such term, condition, right, or claim and shall in no way affect Predictive Science’s right to later enforce or exercise it.
User shall not violate any laws or third-party rights on or related to the Predictive Science Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and to respect and not violate third parties’ Proprietary Rights.
Users may not assign the Terms of Service, or any User rights or obligations hereunder, without Predictive Science’s prior written consent in the form of a written instrument signed by a duly authorized representative of Predictive Science (and, for the purposes of this section 14.10, a written instrument shall expressly exclude electronic communications such as email and electronic notices). Predictive Science may freely assign the Terms of Service, or subcontract performance of all or any part of Predictive Science’s obligations, without the consent of any User. Any attempted assignment or transfer in violation of this section will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of the Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, that provision shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the minimum extent necessary to conform to applicable law in order to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
14.12 International Use
The Predictive Science Platform is controlled and operated from the United States. Predictive Science makes no representations that the Predictive Science Platform is appropriate or available for use in other locations. Those who access or use the Predictive Science Platform from other locations do so at their own choice and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Predictive Science Platform if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Predictive Science Platform are solely directed to individuals, companies, or other entities located in the United States.
14.13 Notices and Consent to Electronic Notice
You consent to the use of (a) electronic means to agree to the Terms of Service and to deliver any notices pursuant to it; and (b) electronic records to store information related to the Terms of Service or your use of the Predictive Science Platform.
Notices hereunder shall be invalid unless made in writing, in English, and given by (a) by Predictive Science via email (in each case to the primary email address that you provide), (b) by Predictive Science via a posting on the Site or (c) by you via email to Predictive Science’s support team or to such other addresses as Predictive Science may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
You hereby consent to inclusion of your name and logos in customer lists and presentation materials that may be published and distributed as part of Predictive Science’s marketing and promotional efforts.
From time to time upon request, you agree to provide Predictive Science with reasonable cooperation and assistance in connection with other marketing efforts (such as, for example, by acting as a reference, issuing press releases and providing written or videotaped customer testimonials and case studies, with statements attributed to a one of your named employees).
In addition to performance improvements, Predictive Science may utilize data derived from your use of the Predictive Science Platform, in the form of statistics, for promotional purposes.
You may generally publicize your use of the Predictive Science Platform; however, you may not issue any press release with respect to Predictive Science or the Predictive Science Platform, without Predictive Science’s express prior written consent.
14.15 Force Majeure
Neither party shall be liable for any delay or failure in performing its obligations hereunder that arises out of any cause, condition, or circumstance beyond its reasonable control.
The Predictive Science Platform is a commercial product, developed solely at private expense and proprietary to Predictive Science, Inc. If any User of the Predictive Science Platform is an agency, department, or other entity of the United States Government, then the use, duplication, reproduction, modification, release, disclosure, or transfer of such software or documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The software is “commercial computer software,” the documentation is “commercial computer software documentation,” and their use is further restricted in accordance with the terms of the Terms of Service.
14.17 Prevailing Language.
The English language version of the Terms of Service shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
“Agency” means a legally recognized entity with the ability to hire or contract.
“Client” means any User that has used the Predictive Science Platform to request Services to be performed by a Provider. From time to time, Predictive Science may act as a Client, and the terms and conditions of the Terms of Service applicable to Clients will apply to Predictive Science when it is acting in this way.
15.3 “Client Deliverables”
“Client Deliverables” means instructions, requests, intellectual property, or any other information or materials that a Provider receives from a Client for a particular Service Contract.
15.4 “Confidential Information”
“Confidential Information” means Client Deliverables or Provider Deliverables, Work Product, or any other information provided to, or created by, a User for a Service Contract, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Provider or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by the User for a Service Contract prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by the User without use of Confidential Information.
15.5 “Finding Fee”
“Finding Fee” means those fees set forth in section 2.4 (Finding Fee).
“Fixed-Price” means a fixed fee agreed between a Client and a Provider, prior to the commencement of a Service Contract, for the completion of all Services requested by the Client for under the Service Contract.
15.7 “Fixed-Price Contract”
“Fixed-Price Contract” means a Service Contract for which Client is charged a Fixed-Price. Under a Fixed-Price Contract, Providers may be paid part or all of the Fixed Price upon completion of designated tasks or milestones within a Service Contract.
15.8 “Hourly Rate”
“Hourly Rate” for a Service Contract means the hourly rate specified for a Provider.
15.9 “Hourly-Rate Contract”
“Hourly-Rate Contract” means a Service Contract for which a Client is charged based on the Hourly Rate of Providers.
15.10 “Predictive Science Fees”
“Predictive Science Fees” means those fees set forth in section 2.3 (Predictive Science Fees).
15.11 “Predictive Science Platform”
“Predictive Science Platform” means the online platform operated by Predictive Science, including any (a) content, functionality, and services offered on or through the Site; (b) off-line software components made available to you by or on behalf of Predictive Science (“Desktop”); (c) any web-based services made available to you by or on behalf of Predictive Science (“Web-based Offering”) (d) data, text, graphics, sound or video clips, flash animations, user interfaces, visual interfaces, trademarks, logos, and computer code, whether on the Site, in the Desktop or in a Web-based Offering.
15.12 “Proprietary Rights”
“Proprietary Rights” means any and all rights, title, ownership, and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
“Provider” means any User that has used the Predictive Science Platform to offer Services to Clients.
15.14 “Provider Deliverables”
“Provider Deliverables” means instructions, requests, intellectual property, or any other information or materials that a Client receives from a Provider for a particular Service Contract.
15.15 “Provider Fees”
“Provider Fees” means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours recorded by Provider in Timesheets, multiplied by the Provider’s Hourly Rate; (b) for a Fixed-Price Contract, the Fixed-Price; and (c) any bonuses paid or other payments made by a Client for a Service Contract.
15.16 “Service Contract”
“Service Contract” means a particular project or set of ongoing tasks for which a Client has requested Services to be performed by a Provider and for which the Provider has agreed on the Predictive Science Platform.
“Services” means web development, software development, writing, translation, administrative, marketing, design, customer service, sales, data entry, general business services, or any other human services.
“Site” means the website, including its content, functionality and services offered on or through, PredictiveScience.com or any subdomain of PredictiveScience.com. “Site” also refers to other websites own or operated by Predictive Science that may be displayed at other domains but that direct visitors to PredictiveScience.com.
“Timesheets” refers to Predictive Science’s online timesheets for the Services performed with respect to a Service Contract.
15.20 “Work Product”
“Work Product” means any tangible or intangible results or deliverables that Provider agrees to create for, or actually delivers to, Client as a result of performing the Services on a particular Service Contract, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any intellectual property developed in connection therewith.