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Effective Date: July 15, 2016
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and PexBank Intellectual Pty. (“PexBank”, “we,” or “us”) and, to the extent expressly stated, our affiliates Gigathon Technologies.(GGT) You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.PexBank.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services, applications and products that are accessible through the Site and all PexBank mobile applications that link to or reference this Agreement (“Site Services”) whether provided by us or our Affiliates.
This Agreement includes and hereby incorporates by reference the following: PexBank Fee Agreement; Terms of Use; Cookie Policy; Privacy Policy; PexBank Payroll Agreement; Proprietary Rights Infringement Reporting Procedures; “PexBank Team” Software License Agreement; API Terms of Use; PexBank Widget Terms of Use; Expense Payment Agreement with Escrow Instructions; and Fixed-Price Offer Listing Instructions, as such agreements may be in effect and modified by PexBank from time to time (collectively, with this Agreement, the “Terms of Service”). The Terms of Service are available at www.PexBank.com/tos.
Subject to the conditions set forth herein, PexBank may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of any amendment that includes a Substantial Change. If the Substantial Change includes an increase to Fees charged by PexBank, PexBank will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).
Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement and in Section 23 (Definitions).
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY OR AGENCY.
By registering for an PexBank account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and the other Terms of Service electronically, effective on the date you register your Account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
In connection with the Terms of Service, you may be entitled to receive certain records from PexBank or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via Postal Service and other third-party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Customer Support. In addition, so that we may communicate with you via the Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
To use the Site and certain Site Services, you must register for an Account. PexBank offers the Site and Site Services for your business purposes only, and not for personal, household, or consumer use. To use the Site and Site Services, you must have, and hereby represent that you have, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity) and further represent that you intend to use the Site and Site Services for your business purposes only, unless you use the Site and Site Services solely as an employee and Agency Member of a registered Agency Account. You understand that you must comply with any licensing or registration requirements with respect to your business, and you represent that you comply with all such requirements. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site and the purchase or delivery of Exchange Services; and (c) perform your obligations as specified by any Service Contract that you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. PexBank reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in PexBank’s sole discretion.
You represent that you are not: (x) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) a citizen or resident of, or located in, a geographic area that is subject other sovereign country sanctions or embargoes; or (z) an individual, or an individual employed by or associated with an entity, otherwise ineligible to receive items subject to control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services.
By registering for an account, you must complete a User profile (“Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. If you are an Exchanger, unless you use the Site solely as an employee, you represent and warrant that you use your Profile to market your business to others for the purpose of entering into independent contractor relationships with other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, your skills, or the services your business provides that is or becomes false or misleading. You agree not to register for more than one Client Account and one Exchange Account without express written permission from us. You agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit.
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on PexBank, if it is a separate legal entity. You authorize PexBank, 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. When requested, you must provide us with information about you and your business.
When you register for an Account, you will be asked to choose a username and password for the Account. Each User will also be asked to choose the initial username and password for any Personal or Agency Account).
You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize PexBank to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password or the password of any User of your Account. You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account at any time.
You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that PexBank post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Job Success Score (“JSS”), if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that PexBank will make feedback results available to other marketplace Users, including composite or compiled feedback. PexBank provides this feedback system as a means through which Users can share their opinions publicly and PexBank does not monitor or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any JSS relate only to the business advertised in the Exchanger’s Profile and not to any individual person. You agree not to use the JSS to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
PexBank does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that PexBank do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory. PexBank is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, PexBank reserves the right (but is under no obligation) to remove posted feedback or information that, in PexBank’s sole judgment, violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify PexBank of any error or inaccurate statement in your feedback results, including the JSS, and that if you do not do so, PexBank may rely on the accuracy of such information.
The Site is a marketplace where Clients and Exchangers can identify each other and advertise, buy, and sell Exchange Services online. Subject to the Terms of Service, PexBank provides the Site Services to Users, including hosting and maintaining the Site, enabling the formation of Service Contracts, and coordinating disputes related to those Service Contracts. If Users agree on terms for Exchange Services, a Service Contract is formed directly between such Users, subject to the provisions set forth in Section 5 (Contractual Relationship Between Client and Exchanger), unless you are enrolled in PexBank Payroll. When a User enters a Service Contract, the User uses the Site to engage, communicate, invoice and pay online.
GGT provides escrow services to Users to deliver, hold, or receive payment for an Engagement, and to pay service, membership and payment processing and administration fees to PexBank (“Escrow Services”). GGT is a private business enterprise that have developed and implement the Escrow System on PexBank using Third-Party Payment systems. The Escrow Services are intended for business use, so you agree to use the Escrow Services only for business purposes and not for consumer, personal, family, or household purposes.
Depending on your needs and the applicable Escrow Instructions, GGT will establish and maintain one of three different types of Escrow Accounts, subject to the applicable Escrow Agreement:
(a) Client Escrow Account. After entering into a Service Contract, the first time a Client makes a payment for an Engagement, GGT will establish and maintain a “Client Escrow Account” to hold funds for the Client to use to make payments for Engagements, to receive refunds in connection with Engagements, and to make payments to PexBank for payment processing and administration fees.
(b) Exchanger Escrow Account. After entering into a Service Contract, the first time an Exchanger uses the Site to receive payment for an Engagement, GGT will establish and maintain a “Exchanger Escrow Account” for the Exchanger to receive payments for Engagements, withdraw payments, and service fees to PexBank, and issue refunds to Clients.
(c) Fixed-Price Escrow Account. When you enter into a Fixed-Price Contract, GGT will establish and maintain a “Fixed-Price Escrow Account” to receive, hold, and release payments pursuant to the Fixed-Price Escrow Instructions for the Engagement that is the subject of that Service Contract.
You hereby authorize and instruct GGT to act as escrow agent in connection with the Escrow Accounts and the payment, holding, and receipt of funds for each Engagement and other specified purposes (the “Escrow”) in accordance with the Terms of Service and the applicable Escrow Instructions.
Unless you use the services described in the PexBank Payroll Agreement (such services, “PexBank Payroll”), you acknowledge and agree that a Service Contract is comprised of the following agreements (as applicable): (a) The Fixed-Price Escrow Instructions; (b) Exchange Engagements or Expense Payment Agreement with Escrow Instructions; (c) the Engagement terms awarded and accepted on the Site to the extent that the terms do not, and do not purport to, expand PexBank’s obligations or restrict PexBank’s rights under the Terms of Service; (d) the terms in Section 8 (Service Contract Terms), unless other terms are agreed to by the parties, to the extent that the provisions do not, and do not purport to, expand PexBank’s obligations or restrict PexBank’s rights under the Terms of Service; and (e) any other contractual provisions accepted by both the Client and the Exchanger, to the extent that the provisions do not, and do not purport to, expand PexBank’s obligations or restrict PexBank’s rights under the Terms of Service. You acknowledge and agree that PexBank is not a party to any Service Contracts, and that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between PexBank and any Exchanger.
Fixed-Price Engagements. If Users choose fixed-price compensation, then the Users agree that they will be bound by, and GGT will follow, the Fixed-Price Escrow Instructions.
Exchange Engagements or Expense Payments. If Users choose hourly compensation, and/or if the Client makes bonus or expense payments, then the Users agree that they will be bound by, and GGT will follow, the Exchange Engagements or Expense Payment Agreement with Escrow Instructions.
When a Client pays an Exchanger, or when funds related to an Engagement are otherwise released to an Exchanger as required by the applicable Escrow Instructions, GT will credit the Exchanger Escrow Account for the full amount paid or released, and then subtract and disburse to PexBank a service fee in the amount specified in the PexBank Fee Agreement (the “Service Fee”). Exchanger agrees to pay PexBank the Service Fee for using the Site’s communication, invoicing, dispute resolution and payment services, including Payment Protection. Refer to the PexBank Payroll Agreement for applicable fees to use PexBank Payroll.
Clients are charged a fee for payment processing and administration as described in the PexBank Fee Agreement.
Exchangers may need to subscribe to privileges for listing an offer as “featured” on the Site, by payment of subscription fees as described in and subject to the terms of the Exchanger Membership Agreement, as may be revised from time to time upon such notice as may be appropriate.
PexBank does not introduce Clients to Exchangers and does not help Exchangers secure Engagements. PexBank merely makes the Site Services available to enable Exchangers to do so themselves. Therefore, PexBank does not charge a fee when an Exchanger finds a suitable Client or finds an Engagement. However, a Client and an Exchanger are obligated to use the Site to pay and receive payment for their work together if they identified each other through the Site. In addition, PexBank does not charge any fee or dues for posting public feedback and composite or compiled feedback, including JSS.