Terms of Service
Effective Date: September 28, 2017
Welcome to Overpass.
Overpass LLC is a communications company that creates web and mobile-based business communications applications. Among these applications is an integrated call center software product that provides enterprise-level functionality without the need for hardware or software installation. Overpass also provides an online marketplace where businesses may find independent contractors from around the world to perform communication-based tasks and which allows businesses to deploy workers directly from the Overpass call center software. The call center software also enables businesses and independent contractors to monitor all activities and provide automated invoicing and billing.
Overpass has created and manages various websites including the Overpass Website (located at www.overpass.com) (“the Site”) certain software, applications, products and services that are accessible through the Site or through other software, applications or products, including the Overpass call center software and the Overpass online marketplace (individually and collectively referred to as the Platform”) and related support services (together with the Platform, the “Site Service”).
Overpass LLC offers various Services to you through our website (www.overpass.com) and our App on the web, all of which are conditioned on your agreement to and compliance with the following Terms of Service without modification of any kind. Your use of the App or Services and/or your registration with us constitutes your agreement to these Terms of Service. These Terms of Service are subject to change at any time, without prior notice. Any changes that are made to these Terms of Service will not apply retroactively and will not apply to disputes or events occurring before the change is published. You are responsible for reviewing these Terms of Service on a regular basis. These Terms of Service apply to all visitors and all who access our website or use our App or Services. To the extent these Terms of Service incorporate by reference any linked or referenced information, such linked or referenced information is incorporated herein and part of these Terms of Service.
The Overpass website, App and Services are owned and operated by Overpass LLC and/or its affiliates, licensors, or related entities (collectively referred to herein as “Overpass”, "we", "us", or "our"). Independent Contractors and Clients are sometimes referred to herein as "you", "your", "parties" or "Users".
You hereby represent that you are of legal age to form a binding contract, or have obtained parental or guardian consent to do so. You further represent that you are legally able to accept
these Terms of Service and that you are not a person barred from receiving the Service under the laws of the United States or other applicable jurisdictions, including the country in which you reside or from where you use the Service. If you do not agree to these Terms, you may not use the Website, Apps or Services.
YOU UNDERSTAND AND AGREE THAT BY USING THE WEBSITE, APP OR SERVICES AFTER THE EFFECTIVE DATE STATED ABOVE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE, INCLUDING THE INFORMAL DISPUTE RESOLUTION AND MANDATORY BINDING ARBITRATION PROVISIONS. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MUST NOT ACCESS OR USE THE WEBSITE, APP OR SERVICES AFTER THE EFFECTIVE DATE. 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.
Subject to these Terms of Service, Overpass will provide you with access to the Services during the term of this Agreement. Your access is solely for use for your own business purposes. These “Services” include (a) the website www.overpass.com ("Site"); (b) Overpass integrated call center software; (c) Overpass online marketplace; and (d) any other services provided to you through any of the foregoing, based on the plan you have purchased from Overpass, including all software, data, text, images, sounds, videos, and other content made available through the Site, or developed via the Overpass API (collectively, “Content”). Any new features added to the Services are also subject to this Agreement, it being understood and agreed that new features may not be available for all pricing plans. The Services may also include basic or expanded support based on the Service plan purchased from Overpass.
To use certain features or areas of the Site, App or Services, you must first create a User Account. This may require you to provide personal information, which you hereby consent to be shown to other Users and members of the general public. Overpass may refuse to allow you to create a User Account for any reason in its sole discretion.
You agree to provide true, accurate, current and complete information about yourself as prompted by the applicable registration form. You are responsible for keeping such information truthful, accurate, current and complete. The information you submit must describe only you and not another person or entity. You may not sell, share or otherwise transfer your account
You are responsible for all activity that takes place when the Site, App or Services are accessed through your User Account, whether or not you authorized that activity. Therefore, if you create a User Account, please maintain confidential your user name and password. You agree and acknowledge that your login may only be used by one (1) person, and that you will not share a single login among multiple people. You understand and agree that Overpass is not and will not be liable for any loss or damage arising from your failure to protect your user name, password or account information. You agree that you will immediately notify Overpass of any unauthorized use of your password or account, or any other breach of security involving Overpass. You may unregister with Overpass at any time by following the instructions on the Website or Platform that are provided for those purposes.
When you register for a User Account and from time to time thereafter, your User 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 Overpass. You authorize Overpass, 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.
3. Billing of Call Center Software When Licensed Independently of Online Marketplace
Call Center Software Billing and Payments. If you subscribe to the call center software independently of the online marketplace, the Service is charged on an annual basis and is non-refundable. License prices are published on the Site and are subject to change at any time, but any increase will not go into effect until the next billing cycle or contract period. We will provide you with at least 15 days’ advance notice of a license price increase, and you will then have fifteen (15) days in which to cancel your renewal before the new price goes into effect. Minutes used are charged against the credits on your account at Overpass's then-current rates, which are subject to change without notice unless otherwise agreed in writing. If you do not provide your credit card or other payment information to Overpass or if your credit card becomes invalid or unusable by Overpass for any reason, your account will be suspended until payment information and charge authorization are provided. Thereafter, unless terminated by you as provided herein, your subscription will renew automatically at the then current pricing based on
your plan’s renewal cycle. The Service provides an interface for the account owner to change credit card information (e.g., upon card renewal). The account owner will receive a receipt upon each payment received, or they may obtain a receipt from within the App to be able to track the status of your subscription.
Modifying Your Subscription. If you choose to upgrade your plan or number of agents during your elected subscription period, any incremental cost will be prorated over the remaining term of the subscription period and charged to your account and credit card. Subsequently, you will be charged the adjusted rate on your next billing cycle. Regardless of your billing cycle, there are no refunds or credits for partial months of Service, plan downgrades, or refunds for unused time if you close your account before the end of your subscription period. No exceptions will be made in order to treat everyone equally and keep our administrative costs low for the ultimate benefit of our customer base. Downgrading your plan level may cause the loss of content, features, or capacity of your account and Overpass does not accept any liability for such loss. Overpass reserves the right to require payment by credit card in advance of services. Credit checks will be required before Overpass agrees to invoice for services.
Overdue charges. If you fail to pay your subscription fee on time, or if your credit card payment information is entered in error or does not go through for processing and you do not update payment information upon our request, your entire subscription may be suspended or cancelled.
Taxes. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Overpass based on its income. We will invoice you for such Taxes if we believe we have a legal obligation to do so.
Billing Disputes. You have sixty (60) days from receipt of an invoice or bill in which to initiate a dispute by emailing Overpass at firstname.lastname@example.org, otherwise you agree that you have waived all rights with respect to the time period for such billing/invoice. Overpass will respond to any inquiry or dispute with respect to its invoices or billings within thirty (30) days of receipt of a written inquiry or dispute, but until resolved, you agree to pay all invoices in a timely fashion, even those subject to dispute. You agree that you will initiate a dispute with Overpass and seek resolution informally prior to filing a dispute with your credit card company. If you fail to initiate a dispute with Overpass first, and do not allow for the 30 days response time, you acknowledge that you thereby waive your right to file a dispute with your credit card company.
4. Online Marketplace
4.1 Overpass is Not a Party to Independent Contractor/Client Contracts
The Overpass online marketplace is an online venue where Independent Contractors and Clients buy and sell Independent Contractor Services to be performed by Independent Contractors for Clients. Overpass hosts the online marketplace and provides the App for use in generating "Service Contracts", performing and monitoring Independent Contractor Services and arranging payment for Independent Contractor Services. Overpass is not a party to any Service Contracts between Independent Contractors and Clients who have located each other in the online marketplace. Nor is Overpass a party to any dispute between Clients and/or Independent Contractors, but does provide a mandatory informal dispute resolution process as described in Section _____ below.
Subject to these Terms of Service, Overpass hosts, maintains and provides to Users the Site and Services, allows Users to locate each other, communicate with each other, form Service Contracts, perform Independent Contractor Services, monitor, invoice and pay for such Services, and coordinates all disputes related to Service Contracts. If Users agree on terms for services, a Service Contract is formed directly between such Users, subject to the provisions set forth in Section 4.2. When Users enter into a Service Contract, the Users use the Overpass integrated call center software to engage, communicate, perform monitor, invoice and pay for services online.
Notwithstanding the foregoing, all Independent Contractors and Clients agree to appoint Overpass as a third-party beneficiary of their Service Contracts for the limited purpose of enforcing any obligations owed to, and any benefits conferred on, Overpass under these Terms of Service, including but not limited to challenging any effort by a User to expand Overpass's obligations or restrict Overpass's rights under these Terms of Service.
4.2 Service Contract Terms
Unless otherwise expressly agreed to in writing by both Users, the default terms and conditions of the Service Contract that an Independent Contractor enters directly with a Client when the Independent Contractor agrees to provide Independent Contractor Services to the Client are as set forth in this Section. Users may agree between them on any additional or different terms for their Service Contract as long as such terms do not affect the rights or responsibilities of Overpass or violate these Terms of Service.
Users agree that the terms concerning the Service Contract described on the Site, including Independent Contractor Fees, rates, hours, and status-based billing, form part of the Service Contract. Users agree to obtain the consent of the other User before making changes to the Service Contract by adding additional or different terms or making other changes to the Service Contract on the Site. If consent of the other party is not first obtained, the other party may reject such changes by terminating the Service Contract (see Section _____ 4.4) or accept such changes by continuing to work on the Service Contract.
4.3 Independent Contractor Services
Independent Contractor agrees to personally provide all services for any Service Contract under which the Independent Contractor is working. Independent Contractor acknowledges and agrees that Independent Contractor, and not Overpass, will be responsible for timely and professionally completing all work that he or she is assigned while working as an Independent Contractor.
Independent Contractor agrees to perform all Independent Contractor Services in a professional, workmanlike and timely manner and will timely deliver any agreed upon materials. Absent a written agreement to the contrary, the Independent Contractor is engaged by Client as an independent contractor and not an employee. Thus, in the absence of a written agreement to the contrary the manner and means of performing the Independent Contractor Services will be determined and controlled solely by Independent Contractor. The Client may use the App to specify the activities, timing and other details of Independent Contractor Service that must be followed by the Independent Contractor to be entitled to payment pursuant to the Service Contract. Those details will be monitored automatically to provide "Status-Based Billing". However, performance of the Independent Contractor Services under the details specified by the Client will merely dictate whether and for what Services the Independent Contractor is entitled to payment. Users understand and agree that Clients may not dictate the precise manner in which Independent Contractor performs Services.
To ensure accurate billing, work billed for Hourly Contracts under an Independent Contractor's Account must be performed by the Independent Contractor that has the Account. Regardless of whether an Independent Contractor delegates any portion of the services, the Independent Contractor remains responsible for all services performed under the Independent Contractor's Service Contracts, including ensuring that the services comply with the Terms of Service (including confidentiality and intellectual property obligations).
Independent Contractor and Client acknowledge and agree that Independent Contractors (and any delegees of Independent Contractors) are not employees, independent contractors or agents of Overpass. Overpass merely provides the platform for Independent Contractors to communicate and share information with Clients. Independent Contractor acknowledges and agrees that they will not be directly or indirectly providing any services to Overpass. Independent Contractor understands and agrees that the contract terms, pay rate, work hours, service dates and working conditions will be established by Independent Contractor and/or Client through the Platform, and not by Overpass.
Independent Contractor and Client acknowledge and agree that Overpass does not in any way supervise, direct, or control Independent Contractors or their delegees. Overpass does not set Independent Contractors' contract terms (including determining whether the contract will be set at an hourly rate or status-based billing fee), work hours, work schedules, or location of work. Independent Contractor and Client acknowledge and agree that Overpass will not provide Independent Contractors with training or any equipment, labor, or materials needed for a particular Service Contract, and that Overpass does not provide the premises at which the Independent Contractors will perform Services.
4.4 Invoicing and Client Payments
For Hourly or Status-Based Billing Contracts, Client becomes obligated for Independent Contractor Fees on a weekly basis.
4.5 Dispute Resolution
With respect to disputes arising between Client and Independent Contractor, you agree to abide by the dispute resolution provisions set forth in Sections _____ and any additional dispute resolution provisions that apply to your particular Service Contract.
4.6 Termination of a Service Contract
For Hourly or Status-Based Billing Contracts, either Client or Independent Contractor has the right to terminate the Service Contract after providing any required notice, or immediately on the end date specified in the Service Contract and/or upon completion of the Independent Contractor Services, or in the event of a material breach, or with the consent of the other party. Except as required by law, Client remains obligated to pay the Independent Contractor Fees for any Independent Contractor Services provided prior to termination of the Contract.
Once a Client’s Payment Method has been charged to make a payment, Client does not have the right to recover any payments already released to Independent Contractor.
4.7 Client Materials
Client grants Independent Contractor a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use Client Materials as necessary solely for the performance of the Independent Contractor Services under the applicable Service Contract. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Client Materials. Upon completion or termination of the Service Contract, or upon Client’s written request, Independent Contractor will immediately return all Client Materials to Client and further agrees to destroy all copies of Client Materials and Deliverables contained in or on Independent Contractor's premises, systems, or any other equipment or location otherwise under Independent Contractor's control. Within ten days of such request from Client, Independent Contractor agrees to provide written certification to Client that Independent Contractor has returned or destroyed all Client Materials and Work Product as provided in this subsection.
4.8 Ownership of Work Product and Intellectual Property
Upon Independent Contractor's receipt of full payment from Client, all of Independent Contractor's Work Product will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. Independent Contractor hereby irrevocably assigns to Client all right, title and interest worldwide in and to any intellectual property rights in the Work Product.
4.9 Client is Responsible for Classification of Independent Contractor as Employee or Independent Contractor of Client
Client agrees to be solely responsible and to assume all liability for determining whether Independent Contractors (and/or their delegees) are properly classified as independent contractors or employees and for engaging them based on the appropriate determination. Overpass disclaims any liability for such determination. The Terms of Service do not create a partnership or agency relationship between Users and/or Overpass. Neither Independent Contractor nor Client any authority to enter into written or oral (whether implied or express) contracts on behalf of Overpass. For Service Contracts classified as independent contractor relationships, Client may not require an exclusive relationship. An Independent Contractor classified as an independent contractor is free at all times to provide Independent Contractor Services to persons or businesses other than Client, including any competitor of Client, subject to any confidentiality requirements.
Overpass does not employ or classify Independent Contractors. Overpass merely provides the Website and Platform for Independent Contractors to communicate and share information with Clients. Client and Independent Contractor understand and agree that the pay rate, work conditions, and work dates will be established or confirmed by the Client and not by Overpass, and that Independent Contractor will not have any contract on the Overpass Website or with Overpass regarding such service terms. Any job posting, proposal, pay rate or other information in the Website or Platform is solely for the purpose of enabling Independent Contractor to communicate with Client. Independent Contractor acknowledges and agrees that he/she is not an employee of Overpass, that he/she will not be providing any services to Overpass (directly or indirectly), and will not at any time represent, assert or claim to be or have been an employee, independent contractor or agent of Overpass.
Independent Contractor understands and agrees that the Overpass App accurately monitors Independent Contractor's work status and records and reports all hours worked to Client. Independent Contractor agrees to review all time/work status logs prepared by the Overpass Platform for accuracy and completeness and verifies that the hours worked and work status reflected in the logs are accurate.
If Client fails to pay fees owed to the Independent Contractor or any other amounts due under these Terms of Service, whether by canceling Client's credit or debit card on record with Overpass, initiating an improper chargeback, or any other means, Overpass may suspend or close Client's User Account and revoke Client's access to the Website and Platform, including Client's authority to use the Website or Platform to process any additional payments, enter into Service Contracts, or obtain any additional Independent Contractor Services. Without limiting other available remedies, Client must pay Overpass upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and
other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, Overpass, at our discretion, may set off amounts due against other amounts received from or held by Overpass for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
4.11 Formal Invoices and Taxes
Overpass will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Independent Contractor fees. Independent Contractor will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Independent Contractor fees and for issuing any invoices so required. Independent Contractor will also be solely responsible for determining whether: (a) Independent Contractor or Overpass 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 Independent Contractor fees and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Overpass, as appropriate; and (b) Overpass is required by applicable law to withhold any amount of the Independent Contractor fees and for notifying Overpass of any such requirement and indemnifying Overpass (either by Overpass, at our sole discretion, offsetting the relevant amount against a future payment of Independent Contractor fees to Independent Contractor or Independent Contractor reimbursing Overpass for the applicable amount) for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Overpass, Independent Contractor agrees to promptly cooperate with Overpass and provide copies of Independent Contractor's tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Independent Contractor is engaging in an independent business as represented to Overpass.
4.12 Payment Terms
In order to use certain features of the Site, App and Services, Client must provide account information for at least one valid "Payment Method." Currently, Overpass accepts payment only by credit card. Client hereby authorizes Overpass (or any third-party designed by Overpass) to run credit card authorizations on all credit cards provided by Client, to store credit card details as Client’s method of payment for Services, and to charge Client’s credit card. Credit will be charged by a third-party payment processor designed by Overpass.
When Client authorizes the payment of the Independent Contractor Fees, Client automatically and irrevocably authorizes and instructs Overpass (or its designed payment processor) to charge Client’s credit card for the Independent Contractor Fees. Client shall review all Invoices (including Status Reports) provided to Client by Overpass within two days of the date on which a given Invoice is provided to Client. When Client approves or is deemed to have approved a Status Report for an Hourly or Status-Based Billing Contract, Client automatically and irrevocably authorizes and instructs Overpass (or its designated third-party processor) to charge Client’s Payment Method for the Independent Contractor Fees.
By providing credit card details through the Site or App, Client represents, warrants, and covenants that: (a) Client is legally authorized to provide such information; (b) Client is legally authorized to perform payments using the credit card provided; and (c) such action does not violate the terms and conditions applicable to Client’s use of such credit card or applicable law. When Client authorizes a payment using a credit card via the Site or App, Client represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated credit card. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
Overpass uses a third-party payment processor to bill you through a credit card linked to your User Account. The processing of payments will be subject to the terms, conditions and privacy policies of the third-party payment processor in addition to these Terms of Service. Overpass is not responsible for errors by the third-party payment processor. By utilizing the App or Services, you agree to pay us, through the third-party payment processor, in accordance with the applicable payment terms. Overpass reserves the right to change its prices and to offer discounts and temporary promotions. You agree that it is your responsibility to maintain a valid, non-expired credit card on file with us while engaging in fee-based activities using our App or Services. You also agree that it is your responsibility to maintain adequate credit to cover all Overpass charges. You agree that if you do not maintain a valid, non-expired card on file with us with a sufficient balance to cover Overpass charges during any billing attempt, you may be subject to interest and penalties. You irrevocably and expressly authorize Overpass to withhold any monies and/or debit any monies from any account that you have identified to Overpass for any charge backs, fees, costs, deductions, adjustments and any other amounts owed to Overpass.
4.12.1 Service Fee Charged to Clients
Overpass is free to sign up and post a work opportunity, review Independent Contractors' profiles, work product (if available), ratings, and feedback, and discuss the requirements of any given engagement. If a Client chooses to engage an Independent Contractor, and the Independent Contractor accepts, Overpass will charge the Client a small fee for the engagement ("Service Fee"). Where applicable, Overpass may also collect taxes (such as value added tax (VAT) in Europe) on Service Fees.
For all Hourly and Status-Based Billing Contracts, a fee of 20% is charged against each payment at the time it is made to the Independent Contractor.
4.12.2 No Service Fee Charged to Independent Contractors
As an Independent Contractor, you may at no charge sign up, create a User Profile, a User Account, post your skills, portfolio and experience, select skills of projects you are interested in, upload a portfolio, receive project notifications, discuss project details with Clients, and accept engagements. Overpass charges Independent Contractors no fee.
4.12.3 Disbursements to Independent Contractors
Overpass disburses funds that are payable to an Independent Contractor for a Project (less any applicable Overpass Service Fees) to Independent Contractors within 90 days after the Independent Contractor fees are due and payable from the Client. Overpass may disburse funds sooner. However, Independent Contractor shall not be entitled to receive interest or other earnings on any funds held by Overpass prior to disbursement to Independent Contractor.
Funds become payable to Independent Contractor following the expiration of a "Dispute Period". Overpass may, in its sole discretion, deviate from the typical billing cycle and charge Client for any and all Time Logs at any time.
Notwithstanding any other provision of these Terms of Service, and except as prohibited by applicable law, if Overpass determines that you have violated the conditions and restrictions of the Site, App or the Terms of Service, Overpass may hold the disbursement of fees to Independent Contractor. Additionally, Overpass may also hold the disbursement of fees to Independent Contractor if: (a) we require additional information before we may lawfully release funds, such as tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the fees due to may be subject to a dispute or charge back; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under a Service Contract, these Terms of Service or other terms of service; (e) we deem it necessary in connection with any investigation; or (f) required by applicable law.
In cases of fraud, abuse, or violation of the Terms of Service, Overpass reserves the right to revoke any payments and hold all fees otherwise due to Independent Contractor (not just the fees due to the Independent Contractor under the specific Service Contract(s) being investigated) unless prohibited by applicable law. In addition, Overpass reserves the right to seek reimbursement from you, and you will reimburse us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or Project; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with this Agreement yet we receive any chargeback from the payment method used by you, or used by your Client if you are an Independent Contractor. You agree that we have the right to obtain such reimbursement by charging any accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your payment method, or obtaining reimbursement from you by any other lawful means. Failure to pay for reimbursements of charge backs is cause for termination of your User Account and revocation of your access to the Site, App and Services.
4.13 2.5% Payment Processing Fees Charged to Client
Starting on the Effective Date, we will charge Clients a payment processing and administration fee of 2.5% of the total amount of each payment made.
4.14 No Return of Funds
Client acknowledges and agrees that Overpass will charge Client's credit card for the Independent Contractor Fees on the Monday after the week in which work was performed. Therefore, and in consideration of the services provided by the Overpass Site and App, Client agrees that once Overpass charges the Client's designated credit card for the fees due and owing to an Independent Contractor as provided in this Agreement or any other terms of service, the charge is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that these Terms of Service provide a dispute resolution process for the resolution of Client and/or Independent Contractor disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other payment provider to charge back any fees invoiced by an Independent Contractor or any other fees charged pursuant to these Terms of Service. A charge back in breach of the foregoing obligation is a material breach of these Terms of Service. If Client initiates a charge back in violation of this Agreement, Client agrees that Overpass may dispute or appeal the chargeback and institute collection action against Client.
4.15 U.S. Dollars
The Site, App and Services operate in U.S. Dollars. If Client’s payment method is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, the Site may display foreign currency conversion rates that Overpass (or a designated third party) may make available to convert supported foreign currencies to U.S. Dollars.
4.16 Non Circumvention
The fees charged by Overpass are the primary consideration received by Overpass for providing, maintaining and servicing the Site, App and Services. You agree to take no steps to circumvent Overpass's entitlement to and receipt of the fees to which it is entitled. Accordingly, Client and Independent Contractor agree that they must use the Website and Platform as the sole and exclusive method to request, make, and receive all payments for work directly or indirectly with that Client and that Independent Contractor or arising out of your relationship with each other. By way of illustration, you may not: (a) submit proposals or solicit parties identified through the Website or Platform to contact, hire, work with, or pay outside the Website and Platform; (b) accept proposals or solicit parties identified through the Website or Platform to contact, deliver services, invoice, or receive payment outside the Website and Platform; or (c) invoice or report on the Website, request an invoice or payment amount lower than that actually agreed between Users.
You agree to promptly notify Overpass if another User improperly contacts you or suggests making or receiving payments outside of the Website and Platform. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Overpass by sending an email message to: email@example.com.
4.7. Marketplace Feedback
You consent to Overpass posting feedback about Users, including you, on or through the Website. You acknowledge and agree that feedback results for you, including your "Performance Rating ", if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that Overpass will make feedback results available to other marketplace Users and that feedback results may maintained and made available in composite or compiled form. Overpass provides this feedback system as a means through which Users can share their opinions publicly and Overpass does not monitor or censor these opinions. You acknowledge and agree that posted feedback relates only the business operated by an Independent Contractor and is not intended to be of a personal nature. You agree not to use the Website and Platform to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
Overpass does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Overpass 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. You acknowledge and agree that you shall not seek to hold Overpass liable and that Overpass is not legally responsible for any feedback or comments posted or made available on the Website or Platform 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 provided by Overpass and to protect Users from abuse, Overpass reserves the right (but is under no obligation) to remove posted feedback or information that, in Overpass's sole judgment, violates the Terms of Service or, in our sole opinion, negatively affects the integrity our marketplace. You acknowledge and agree that you will notify Overpass of any error or inaccurate statement in your feedback results, and that if you do not do so, you acknowledge and agree that Overpass may rely on the accuracy of such information.
5. Responsibility For User Content and Call Recording
We respect the rights of third parties, we respect the rights of persons who create and/or own content. We expect you to do the same. Given the nature of the Service and the volume of information submitted, we cannot and do not monitor all of the materials posted or transmitted by you via the Service. You expressly agree that we will not be liable for such materials. We reserve the right, but are not obligated, to remove content from the Service for any reason, including content that we believe violates these Terms of Service or our Acceptable Use Policy below.
Please note that Overpass offers the option for you to record calls. However, if you choose to use this service, then you must comply with all state and federal laws, regulations and rules prior to recording any telephone calls and you expressly warrant and represent to Overpass that you will comply at all times. We make no representations or warranties with respect to call recording and recommend that always secure consent before recording. You acknowledge that these representations and obligations are essential to the ability of Overpass to provide you with access to call recordings and you further agree to indemnify, defend and hold Overpass and its officers, directors, owners, employees, agents, consultants and vendors harmless from and against any and
all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys’ fees) that may be incurred by Overpass arising out of or related to your acts or omissions in connection with call recordings, whether such claims arise under contract, tort, statute or other legal theory.
6. Acceptable Use Policy
The following is a partial list of the kinds of activities that are prohibited on or through the App and Service: (a) submitting materials that are patently offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) engaging in activities or submitting materials that could be harmful to and/or contribute to the delinquency of minors; (c) engaging in activity or submitting materials that harasses or advocates harassment of another person; (d) engaging in activity that involves the transmission of “junk mail” or unsolicited mass emailing or “spam” or harvesting or otherwise collecting personally identifiable information about Service users, including names, phone numbers, addresses, email addresses, (collectively, “User Data”) without their consent; (e) engaging in activity, or submitting materials, or promoting information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (f) submitting materials that contain restricted or password only access pages, or hidden pages or images; (g) submitting materials that displays pornographic or sexually explicit material of any kind; (h) submitting materials that provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (i) submitting materials that contain viruses, Trojan horses, worms, or any other similar forms of malware, (j) engaging in activities or submitting materials that solicit passwords or personally identifiable information for unlawful purposes from other users; (k) engaging in unauthorized commercial activities and/or sales without our prior written consent such as advertising, solicitations, contests, sweepstakes, barter, pyramid schemes, unsolicited marketing or other activities, including any activities that violate anti-spam laws and regulations including the CAN SPAM Act of 2003, the TCPA Rules (as defined below), and the Do-Not-Call Implementation Act (or any similar or analogous anti-spam, data protection, or privacy legislation in any other jurisdiction); (l) using any robot, spider, other automatic device, or manual process to monitor, copy, or “scrape” web pages or the content contained in the website or for any other unauthorized purpose without our prior written consent; (m) using any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; (n) decompiling, reverse engineering, or disassembling the software or attempting to do so; or (o) taking any action that imposes an unreasonable or disproportionately large load on the Service or our hardware and software infrastructure or that of any of its Licensors or Suppliers. In addition, you covenant and represent that you will not use the Service for any purpose other than those that are for your internal business purposes, nor will you use this Service in violation of any applicable laws or regulations (including those relating to the recording of telephone calls telemarketing, and the sending of text or SMS messages), industry standards, third party policies (including all of the applicable guidelines published by the CTIA, the Mobile Marketing
Association), or any other accepted industry associations, carrier guidelines (or any similar or analogous industry standards, third party policies or requirements in any other jurisdiction), or these Terms of Service.
6.2 Calling and Messaging through the Services
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your User Account, including without limitation the electronic transmission of messages and calls that you create and initiate through the App or Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the App or Services by visiting the following websites: www.ftc.gov (Federal Trade Commission), www.fcc.gov (Federal Communications Commission) and www.donotcall.gov (Do-Not-Call Registry Info).
You further acknowledge that you will comply with the requirements of the Telephone Consumer Protection Act of 1991 together with final rules and regulations (collectively, “TCPA Rules”). You understand and agree that you are solely responsible for complying with the TCPA Rules and any other state, federal or local laws, rules and regulations, in effect from time to time, governing electronic communications between you and the owners of the phone numbers you initiate calls or messages to through the Services. Without limiting the foregoing, you represent and warrant that the owners of the phone numbers have given prior express consent or otherwise opted-in to the receipt of such calls or messages as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information on your calls or messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, to the extent applicable. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages or calls to any individuals after they request DNC status. The TCPA Rules, the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. Overpass is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your use of the Services to initiate calls or messages.
Ownership of the App, Site and Services. The Site, App and Services, and the information which they contain, are the property of Overpass and/or its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, patent law, international conventions and other intellectual property laws. Overpass and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the Site, App and Services.
You may use the Site, App and Services (including any content and materials included on the Site and App) for your own use as described and limited herein. You may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from the Site or App unless explicitly authorized in these Terms of Service or by the owner of the materials. You may, however, from time to time, download and/or print one copy of individual pages of the Site for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.
Submissions. If and when you submit, post or display data, information or content (including your User Profile) through the Site or App, you are granting us and any third-party service providers and partners a worldwide, non-exclusive, irrevocable, transferable, assignable, worldwide, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content in any and all media or distribution methods. You represent that any materials and content posted or otherwise submitted by you to the Site or App is original to you and that you have the right to grant us these rights.
The content that you submit may be modified or adapted for purposes of transmission, display, or distribution over computer networks or any media formats, in order to conform to any requirements or limitations in working with such networks, services, devices or media. We do not claim any ownership of the content that you submit, post, or display through the Services. You retain any and all ownership rights to the content that you submit and are responsible for protecting those rights. We reserve the right at all times to remove or refuse distribution of any content on our Services.
Responsibility for what is posted in public areas of the Site, App or Services lies with each User. You alone are responsible for the material you post or otherwise make available in public areas of the Site or App. We do not control the material that you or others may post or otherwise make available in such areas, and you understand that we have no obligation to monitor any such material or to edit or delete it. However, we reserve the right do so. We are not a publisher of user posts, and we are not responsible for their accuracy or legality.
Any sample recordings made through your User Account may be erased by us at any time after the date the recording was made. Therefore, you should download your own copy of any such recordings soon after you make the recording.
8. Representations and Warranties
You represent and warrant that: (i) You have the power, right and authority to enter into this Agreement, and are capable of forming a binding contract: (ii) you own or have sufficient rights in and to the content you submit through the Site, App or Services to grant the licenses set forth in this Agreement with respect to such content to Overpass, that any use by Overpass of such content as contemplated in this Agreement will not infringe on the rights of any third party or violate any applicable laws or regulations, and that such content shall not: (a) violate any laws or regulations or any rights of any third parties, including but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade dress, trade secret, music, image or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or publicity rights, moral or otherwise, or rights of celebrity, or any other right of any person or entity; (b) contain any material that is unlawful, fraudulent, threatening, defamatory, obscene, profane or hateful; or (c) contain any disabling codes or instructions, or any viruses, worms, Trojan horses or other contaminants.
8.2 Additional Representations When Users Register for a User Account:
Overpass offers the Site and Services solely for your business purposes, and not for personal use. As an Independent Contractor, you represent and warrant that you use your User Profile to market your own business to other registered users (Clients) for the purpose of entering into independent contractor relationships with others. To use the Site, App and Services, you must have, and hereby represent that you do have, an independent business (whether conducted solely by you as a self-employed individual or sole proprietor, or as a corporation or other lawfully-recognized business entity). You further represent that you intend to use the Site, App and Services for your business purposes only. You understand that you must comply with any regional country/state/county/city/town licensing or registration requirements with respect to your business, and you represent that you comply with all such requirements. To register for a User 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 and that you are not barred from receiving the Service under the laws of the United States or other applicable jurisdictions, including the country in which you reside or from where you use the Service. By registering for a User Account, by using the Site, App or Services on or after the Effective Date you agree to: (a) abide by this Agreement and any other Terms of Service published by Overpass; (b) be financially responsible for your use of the Site, App and Services, including the purchase, performance and delivery of Independent Contractor 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 these Terms of Service. Overpass reserves the right, in our sole discretion, to refuse, suspend,
or revoke your access to the Site, App or Services upon discovery that any information you provided on any form or posted on the Site or App 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 Overpass's sole discretion.
By using the Site, App or Services, you agree to indemnify, hold harmless and defend Overpass, its Affiliates, and its respective directors, officers, employees, agents, successors and assigns (each, an “Indemnified Party”), arising from or relating to any and all claims, damages, losses, liabilities, and all related costs and expenses, including but not limited to attorneys’ fees, resulting directly or indirectly from: any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site, App or Services by you or your agents, including any payment obligations incurred through use of the Site, App or Services; (b) your failure to abide by these Terms of Service or other conduct that Overpass deems to be in violation of this Agreement; (c) your violation of the rights of another; (d) any Service Contract entered into by you or your agents, including, but not limited to, the classification of an Independent Contractor as an employee; the classification of Overpass as an employer or joint employer of an Independent Contractor; (e) any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (f) any content you submit or transmit through the Services; (g) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you agree to cooperate with us in defending such claims. This indemnification, defense and hold harmless obligation will survive these Terms and the termination of your use of the Site, App or Services.
10. No Warranties
THE SITE, APP, THEIR CONTENT AND ANY OVERPASS SERVICES PROVIDED THEREIN ARE PROVIDED FOR ENTERTAINMENT, EDUCATIONAL AND PROMOTIONAL PURPOSES. YOU AGREE NOT TO RELY ON THE SITE, APP, THEIR CONTENT, ANY SERVICES, ANY INFORMATION ON THE SITE OR PROVIDED VIA THE APP, AND THE CONTINUATION OF THE SITE, THE APP AND THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SPECIFICALLY, BUT WITHOUT LIMITATION, OVERPASS DOES NOT WARRANT THAT: (i) THE INFORMATION PROVIDED ON THE SITE, THE APP OR THROUGH THE SERVICES IS CORRECT, ACCURATE, RELIABLE OR COMPLETE; (ii) THE FUNCTIONS OF THE SITE, APP AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SITE, APP OR SERVICES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. OVERPASS DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. OVERPASS DOES NOT GUARANTEE THE AVAILABILITY OF THE SERVICES AND DOES NOT GUARANTEE THAT THE SITE, APP OR SERVICES WILL MEET YOUR NEEDS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE, APP OR SERVICE IS AT YOUR SOLE RISK. OVERPASS MAKES NO EXPRESS REPRESNTATIONS AND EXPLICITLY AND SPECIFICALLY EXCLUDES ANY AND ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW.
THIS OVERPASS SITE, APP OR SERVICES MAY ALSO CONTAIN FACTS, VIEWS, OPINIONS, STATEMENTS, AND RECOMMENDATIONS OF THIRD PARTY INDIVIDUALS AND ORGANIZATIONS. WE DO NOT REPRESENT OR ENDORSE THE ACCURACY, TIMELINESS, OR RELIABILITY OF ANY OPINION, STATEMENT, OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED THROUGH THE SITE, APP OR SERVICES, OR ANY USER CONTENT. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, STATEMENT, INFORMATION, OR USER CONTENT WILL BE AT YOUR SOLE RISK.
Overpass may alter, suspend, add to, or discontinue the Site, App or Services in whole or in part at any time for any reason, without notice or cost. Overpass assumes no responsibility for your ability to (or any costs or fees associated with your ability to) obtain access to the Site, App or Services. Overpass does not assume any liability for the failure to store or maintain any user communications, account or profile information, or personal settings. By accessing the Site and/or App, you agree that Overpass and its third party providers and partners may place advertisements on the Site and App. The types of advertisements are subject to change. The Site and/or App may become unavailable due to maintenance or malfunction of computer equipment, servers, or other reasons.
You also expressly agree that neither we nor any of our directors, officers, stockholders, employees, consultants, agents or representatives shall be liable to you or anyone else for any action or inaction to prevent, restrict, redress, or regulate content, or to implement other enforcement measures against any content, conduct or potential violation of these Terms of Service.
We do not endorse, support, represent or guarantee the truthfulness, completeness, accuracy or reliability of the content or any communications or materials posted via our Site, App or Services. Any reliance or use of content or materials posted via the Site, App or Services is at your own risk. Under no circumstances is Overpass liable in any way for any content, including, but not limited to any errors or omissions of such content. We are also not liable for any loss or damage incurred as a result of the use of the content.
11. Limitation of Liability
Overpass is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to: (a) failure to be paid by a Client; (b) your use of or your inability to use our Site, App or Services; (c) delays or disruptions in our Site, App or Services; (d) viruses or other malicious software obtained by accessing, or linking to, our Site, App or Services; (e) glitches, bugs, errors, or inaccuracies of any kind in our Site, App or Services; (f) damage to your hardware device from the use of the Site, App or Services; (g) the content, actions, or inactions of third parties’ use of the Site, App or Services; (h) a suspension or other action taken with respect to your User Account; (i) your reliance on the quality, accuracy, or reliability of job postings, User Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site, App or Services; and (j) your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IF YOU ARE DISSATISFIED WITH THE SITE, APP OR SERVICES, OR ANY MATERIALS, PRODUCTS, OR SERVICES ON THE SITE, APP OR SERVICES, OR WITH ANY OF THE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE, APP AND SERVICES. UNDER NO CIRCUMSTANCES SHALL OVERPASS, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE OR RESPONSIBLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, APP OR SERVICES OR THE INFORMATION AND MATERIALS CONTAINED ON THE SITE, APP OR SERVICES, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND REGARDLESS OF WHETHER OR NOT OVERPASS WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. IN NO EVENT SHALL OVERPASS’S TOTAL LIABILITY FOR ALL DAMAGES UNDER THIS AGREEMENT EXCEED THE AGGREGATED AMOUNTS YOU PAID TO OVERPASS DURING THE MOST RECENT THREE (3) MONTH PERIOD IN CONNECTION WITH YOUR USE. THE LIABILITY OF OVERPASS, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY OVERPASS WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS EMPLOYER OR INDEPENDENT CONTRACTOR DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
12. Links to Third-Party Apps
To the extent any Overpass website, App or Service contains link(s) to non-Overpass websites or Apps, such links are provided to you as a convenience, and Overpass is not responsible for the content of any linked website or App. In no event shall any link or reference to any third party, third-party App or third-party product or service be construed as an approval or endorsement by Overpass of that third party or of any product or service provided by a third party.
All notices to Overpass in connection with this Agreement will be deemed given as of the day they are received either by email, messenger, delivery service, or in the U.S. Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows or to such other address as Overpass may designate pursuant to this notice provision. You agree that all notices to you shall be sent to the email address provided by you as part of the sign-up process. Notices to Overpass shall be sent via email to legal@Overpass or to the following mailing address:
Attn: Legal Dept.
40 Commerce St., 3d Fl. Newark, NJ 07102
13.2 Modifications, Entire Agreement.
We reserve the right to change these Terms of Service at any time. Such changes will be effective when posted, provided that we may only amend the alternative dispute resolution, venue and time limit of claims provisions to the extent allowed by applicable law. By continuing to use the Website or Platform after we post any such changes, you accept the Terms of Service
as modified. If you do not agree to the changed Agreement, your only recourse is to stop using the Website and Platform. The captions in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This is the entire Agreement between the parties relating to the subject matter herein and shall not be modified except in writing signed by both parties or by a new posting by Overpass.
13.3 Suspension or Termination of Access
We have the right to deny access to, and to suspend or terminate your access to, the Site, App or Services, or to any features or portions of the Site, App or Services, and to remove and discard any content or materials you have submitted to the Site, App or Services, at any time and for any reason, including for any violation by you of these Terms of Service. In the event that we suspend or terminate your access to and/or use of the Site, App or Services, you will continue to be bound by the Terms of Service that were in effect as of the date of your suspension or termination.
13.4 No Waiver; Severability
Our failure to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, you and we nevertheless agree that the court should endeavor to give effect to intentions reflected in such provision, and the other provisions of these Terms of Service will remain in full force and effect.
You agree that Overpass may access, maintain, and disclose information you provide to Overpass if required to do so by law or if Overpass believes, in good faith, that such access, maintenance or disclosure is reasonably necessary to: (i) comply with any legal process; (ii) enforce this Agreement; (iii) respond to claims that any content posted, provided, transmitted, or otherwise made available by you violates the rights of third parties; (iv) respond to your customer service requests; or (v) otherwise protect the rights and property of Overpass, its vendors, users and the general public.
13.6 Successors and Assigns
The terms of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties; provided, however, that neither this Agreement nor any rights hereunder may be assigned or otherwise transferred by you, either voluntarily or by operation of law, without the prior written consent of Overpass, and any attempt to do so will be null and void.
13.7 Governing Law
This Agreement is governed and interpreted pursuant to the laws of the State of New York, United States of America, without regard to its conflict of law provisions and excluding any and all international conventions concerning contracts.
13.8 Maintain Your Email and Mailing Addresses Current with Overpass
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 Platform or by contacting Overpass customer support. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
13.9 Jurisdictional Issues
We control and operate the Site, App and Services from our facilities in the United States of America. Unless otherwise specified, the materials displayed on the Site, App and Services are presented solely for the purpose of promoting products and services available in the United States, its territories, possessions, and protectorates. We do not represent that materials on the Website or Platform are appropriate or available for use in other locations. If you choose to access the Website or Platform from other locations, you are responsible for compliance with local laws, if and to the extent local laws are applicable.
13.10 Mandatory Informal Dispute Resolution
Before serving a demand for arbitration of a Claim pursuant to Section 13.10, you agree to first notify Overpass of the Claim at:
Attn: Legal Dept.
40 Commerce St., 3d Fl. Newark, NJ 07102
or by email to firstname.lastname@example.org. Overpass agrees to provide to you with a notice at your email address on file and to provide you with informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Overpass will have 60 days from the date of the receipt of the Notice to informally resolve your Claim, which, if successful, will avoid the need for further action.
13.11 Mandatory Binding Arbitration and Class Action/Jury Trial Waiver
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you and Overpass agree to resolve the Claim by binding arbitration before an arbitrator from the American Arbitration Association ("AAA").
Any claim or controversy arising out of or relating to the use of our Service, to the goods or services provided by us, or to any acts or omissions of other users for which you may contend we are liable, including but not limited to any claim or controversy (“Dispute”), which was not resolved by informal resolution process of Section 13.10 shall be finally, and exclusively, settled by arbitration in New York City, New York, from which arbitration there shall be no appeal. The arbitration shall be held before one arbitrator. The arbitrator shall be selected pursuant to the AAA rules. The arbitrator shall apply the substantive law of the state of New York, exclusive of its choice of law principles and any international convention on contracts, except that the interpretation and enforcement of this arbitration provision shall be governed by the U.S. Federal Arbitration Act. To begin the arbitration process, a party must make a written demand therefore. Each party shall bear its own costs and attorneys’ fees. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and we otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. You and Overpass agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.