Terms of Use

Last revised: February 16, 2017


These terms of use (these “Terms”) constitute a contract between you, as an individual or the entity you represent (“you”), and WhatBench, Inc., a California corporation (“WhatBench”, “us”, “our”, and “we”). Unless otherwise specified in these Terms, “you” refers to you as a Consulting Company, Consultant, Client (as those terms are defined in Section 1.1 below), or other user of the Site. These Terms govern your use of the website we operate located at www.whatbench.com (the “Site”). Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms. By accessing or using the Site, you are accepting these Terms, and you represent and warrant that you have the right, authority, and capacity to enter into these terms (on behalf of yourself or the entity that you represent). You may not access or use the Site or accept these Terms if you are not at least 18 years old. If you do not agree with all of the provisions of these Terms, do not access and/or use the site.


These terms require the use of arbitration (Section 12.2) on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute.

NOTICE: THE SITE IS CURRENTLY A BETA VERSION. IT IS BEING MADE AVAILABLE TO YOU FOR EVALUATION AND TESTING PURPOSES ONLY. YOUR USE OF THE BETA SITE WILL BE SUBJECT TO THESE TERMS OF USE, EXCEPT THAT, NOTWITHSTANDING SECTION 3 OF THESE TERMS OF USE, YOU (AS A CONSULTING COMPANY) WILL NOT BE REQUIRED TO PAY ANY FEES TO WHATBENCH FOR THE POSTING OF RÉSUMÉS ON THE SITE. YOU ACKNOWLEDGE THAT THE BETA SITE AND ITS OPERATION MAY BE SUBJECT TO ERRORS OR DELAYS. WHATBENCH WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE BETA SITE. IF AND WHEN WHATBENCH RELEASES A PRODUCTION VERSION OF THE SITE, WHATBENCH WILL NOTIFY YOU AND IF YOU CONTINUE TO USE THE SITE, YOUR USE WILL BE SUBJECT TO THE TERMS OF USE THEN IN EFFECT, INCLUDING YOUR OBLIGATION TO PAY FEES TO WHATBENCH FOR THE POSTING OF RÉSUMÉS ON THE SITE.


  1.   General Description

    1. Venue for Services. The Site provides a venue for companies who provide technical consulting services (“Consulting Companies”) to promote their services (“Services”) to prospective clients and customers (“Clients”), and for prospective Clients to locate and evaluate Consulting Companies and their personnel. Each Consulting Company may post a general description of the Services they offer, and the résumés (“Résumés”) of individuals (“Consultants”) who the Consulting Company makes available to perform Services on behalf of the Consulting Company; provided, however, that a Consulting Company must at all time post at least one Résumé in order for such Consulting Company’s listing to appear on the Site. Consultants may submit their Résumés to the Site, and must associate those Résumés with a designated Consulting Company. Résumés submitted by Consultants will be initially available only to the Consulting Company designated by the Consultant. Each Consulting Company may, through its designated manager, review Résumés that Consultants have associated with that Consulting Company, revise such Résumés, and release the Résumés for publication on the Site under the Consulting Company’s posting, so that such Résumés may be viewed by Clients. Consulting Companies may add or delete Résumés from their postings at any time. Each Consulting Company represents that the Consultants identified in Résumés published by that Consulting Company on the Site are available to perform Services on behalf of that Consulting Company. Clients may contact Consulting Companies directly, to engage such Consulting Companies to perform Services. Clients may also post reviews of Consulting Companies on the Site (“Reviews”). Consultants who no longer perform services for a given Consulting Company may remove their association with such Consulting Company by following the procedure on the Site, in which case the applicable Consulting Company will be informed of such action and the Résumé of such Consultant will no longer appear under such Consulting Company’s posting.

    2. Eligibility. The Site may be accessed and used only by legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. In order to register and make a posting on the Site, Consulting Companies must have an active independent business, a valid company website, a valid email address associated with the company website, and an active LinkedIn profile. Consulting Companies may be any form of business entity, including single-person entities and sole proprietorships. WhatBench offers the Site for your business purposes only, and not for personal, household, or consumer use.

  2.   Accounts

    1. Account Creation. Before using the Site, Consulting Companies, Consultants and Clients must register for an account (“Account”) and provide certain information as prompted by the account registration form.

    2. Consulting Company Registration Review and Approval. WhatBench will review registration information provided by each Consulting Company to confirm that such Consulting Company meets the eligibility requirements and is otherwise acceptable, and the registration will not be effective until approved by WhatBench. WhatBench reserves the right to refuse registration to any person or entity for any reason in its sole discretion. You may delete your Account at any time, for any reason, by following the instructions on the Site. WhatBench may suspend or terminate your Account in accordance with these Terms.

    3. Representations and Warranties. If you create an Account, you represent and warrant that all required registration information you submit is truthful and accurate, and that you will maintain the accuracy of such information. All users of the Site, whether you are a Consulting Company, Consultant or Client, represent and warrant that (a) you meet the eligibility requirements described in these Terms, (b) your use of the Site will not violate any applicable laws or regulations, and (c) your use of the Site will not violate any contract or agreement to which you are a party. In particular, if you are a Consultant, you represent that your submission of a Résumé, and your performance of Services, will not violate any employment, consulting, confidentiality, non-disclosure, non-competition, or other agreement by which you are bound.

    4. Account Responsibilities. If you register for an Account, you are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify WhatBench of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. WhatBench cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

  3.   FEES

    1. Free for Clients and Consultants. We do not charge any fees to Clients for the review of postings by Consulting Companies, the review of Résumés, or for the engagement of Consulting Companies to perform Services.

    2. Fee for Consulting Companies. Consulting Companies are charged a monthly fee for each Résumé displayed under such Consulting Company’s posting on the Site. The fee per Résumé is posted by WhatBench on the Site and can be found here: [tbd]. Each Consulting Company agrees to pay WhatBench the applicable fee for each calendar month, for each Résumé displayed under such Consulting Company’s posting on the Site at any time during such month. A Consulting Company may periodically remove Résumés from its posting, and add new Résumés from its posting, but the monthly fee for a Résumé will be owed for each individual Résumé that is displayed on the Site by the Consulting Company on any day during such month. The fees payable to WhatBench are exclusive of any applicable taxes or similar governmental charges, all of which must be paid by the Consulting Company and may be added to the charged by WhatBench. WhatBench will charge each month’s fees to the Consulting Company’s credit card on file with WhatBench, after the end of such month and each Consulting Company hereby authorizes such charges. WhatBench will make account statements available to each Consulting Company documenting the basis for the calculation of each month’s fees. If for any reason WhatBench is unable to process a monthly fee by charging a Consulting Company’s credit card, the Consulting Company shall remain responsible for payment by other means and if payment is not received by WhatBench within ten (10) days after WhatBench’s request for payment a finance charge of one percent (1%) per month, or if less the highest amount permitted by applicable law, will apply to the overdue amount from the date of such notice until paid, and the Consulting Company will be responsible for attorneys’ fees and other costs of collection to the extent permitted by applicable law. All payments are non-refundable. In addition to any other rights and remedies available to WhatBench under these Terms or under applicable law, WhatBench reserves the right to suspend a Consulting Company’s postings and right to use the Site if its account becomes delinquent.

    3. Changes in Fees. The monthly fee charged to Consulting Companies may be increased or decreased by WhatBench at any time, effective for the next calendar month that begins after the date WhatBench posts the new fees to the Site.

  4.   Access to the Site

    1. License. Subject to these Terms, WhatBench grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site for the purpose of promoting your Services (in the case of Consulting Companies), for submission of Résumés (in the case of Consultants) and for the location and evaluation of Consulting Companies and Consultants and the posting of Reviews (in the case of Clients).

    2. Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise exploit the Site or any contents thereof, except as specifically permitted by these Terms; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.

    3. Modification. WhatBench reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that WhatBench will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof; provided, however, that if WhatBench discontinues the Site, WhatBench will charge Consulting Companies only a pro-rated portion of the fee for the month during which WhatBench discontinued the Site.

    4. Support and Maintenance. WhatBench will respond, by email, to questions you submit by email relating to the use of the Site. WhatBench will have no obligation to provide you with any other support or maintenance in connection with the Site.

    5. Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site and its content (including the “look and feel” thereof) are owned by WhatBench or WhatBench’s suppliers. Neither these Terms (nor your access to or use of the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Terms. WhatBench and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted pursuant to these Terms.

  5. User Content

    1. User Content. “User Content” means any and all information and content that you submit, upload, post, publish or display on or to the Site, including but not limited to company and Services descriptions, Résumés and Reviews. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 5.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by WhatBench. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. WhatBench is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.

    2. License. You hereby grant (and you represent and warrant that you have the right to grant) to WhatBench an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

    3. Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:

      (a)   You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.

      (b)   In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to any additional conditions we may impose).

    4. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with these Terms, and/or reporting you to law enforcement authorities.

    5. Feedback. If you provide WhatBench with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to WhatBench all rights in such Feedback and agree that WhatBench shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. WhatBench will treat any Feedback you provide to WhatBench as non-confidential and non-proprietary. You agree that you will not submit to WhatBench any information or ideas that you consider to be confidential or proprietary.

  6. Relationship of WhatBench to Users; Release

    1. Independent Contractor Status. Whether you are a Consulting Company, Consultant or Client, you acknowledge that you and WhatBench are independent contractors and no partnership, joint venture or other relationship exists between you and WhatBench or between WhatBench and any other Consulting Company, Consultant or Client. No Consulting Company, Consultant or Client has the power to bind WhatBench to any contracts or to create any liabilities for WhatBench.

    2. No Responsibility for Services. WhatBench is not a party to any contract or agreement that may be entered into by or among Consulting Companies, Consultants and/or Clients, for the purchase or performance of Services or otherwise, and WhatBench will not have any liability or obligations of any nature under any such contracts. The terms and conditions of such contracts, including but not limited to the charges payable for Services, are determined exclusively by the parties to such contracts. WhatBench does not recommend or endorse the Services of any Consulting Companies or Consultants and does not, in any way, supervise, direct, or control the performance of such Services. Consulting Companies must look only to Clients for compensation for their Services. Consultants must look only to their associated Consulting Companies for compensation for their services. No Consulting Companies, Consultants and/or Clients, or their personnel, are employees of WhatBench or are entitled to compensation or benefits from WhatBench, including but not limited to worker’s compensation insurance. You are solely responsible for compensating your own personnel and complying with all applicable laws with regard to withholdings. Each Consulting Company acknowledges and agrees that it assumes all liability for the classification of its Consultants as employees or independent contractors.

    3. No Responsibility for User Content. Each Site user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. In particular, we do not verify any information in Résumés submitted to the Site. WhatBench will have no liability of any nature for any inaccuracies, errors or omissions in Résumés posted on the Site, including any additions or changes made by any Consulting Company to the Résumés released by the Consulting Company for publication on the Site. Your interactions with other Site users are solely between you and such users. You agree that WhatBench will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any other Site user, we are under no obligation to become involved.

    4. Reviews. The Site permits Clients to post Reviews regarding Consulting Companies and Consultants, consisting of comments, ratings, indicators of satisfaction, and other feedback. You acknowledge and agree that such Reviews will be available on the Site to any Account holders. WhatBench does not monitor Reviews, or verify any information in Reviews posted to the Site; provided, however that WhatBench may in its discretion (but shall not be obligated to) delete Reviews that, in its sole judgement, violate the Acceptable Use Policy, are factually inaccurate, or fraudulent. WhatBench will have no liability of any nature for any inaccuracies in Reviews or any other contents of Reviews, for deletion of Reviews, or for failure to delete Reviews. If you post a Review, you may be held legally responsible for damages suffered by others or third parties as a result of your remarks if such remarks are legally actionable or defamatory.

    5. Release. You hereby release and forever discharge WhatBench (and our officers, directors, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

  • Indemnification.

    You agree to indemnify and hold WhatBench (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations, (d) your User Content, or (e) your purchase or performance of Services. WhatBench reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of WhatBench. WhatBench will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.


  • Third-Party Links & Ads

    1. Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of WhatBench, and WhatBench is not responsible for any Third-Party Links & Ads. WhatBench provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.

  • Disclaimers

    THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WHATBENCH (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.


    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.


  • Limitation on Liability

    TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WHATBENCH (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF WHATBENCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

    TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.

    SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.


  • Term and Termination.

    Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. If you are a Consulting Company and your Account is terminated by you or by WhatBench for any reason, in addition to any accrued and unpaid fees, you will remain responsible for paying the fees for Résumés displayed under your posting on the Site during the month termination occurs, which will be a pro-rated portion of the normal fees if termination occurs on a day other than the last day of a calendar month. WhatBench will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 3, 4.5, and 5 through 12.


  • General

    1. Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

    2. Dispute Resolution. Please read this Arbitration Agreement carefully.   It is part of your contract with WhatBench and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

    3. (a)   Applicability of Arbitration Agreement.   All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by WhatBench that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and WhatBench, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

      (b)   Notice Requirement and Informal Dispute Resolution.   Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to WhatBench should be sent to its address listed in these Terms. After the Notice is received, you and WhatBench may attempt to resolve the claim or dispute informally. If you and WhatBench do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

      (c)   Arbitration Rules.   Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of our principal office unless we and you agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that WhatBench made to you prior to the initiation of arbitration, WhatBench will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

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

      (e)   Time Limits.   If you or WhatBench pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

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

      (g)   Waiver of Jury Trial.   THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and WhatBench in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WHATBENCH WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

      (h)   Waiver of Class or Consolidated Actions.   ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.

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

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

      (k)   Right to Waive.   Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

      (l)   Survival of Agreement.   This Arbitration Agreement will survive the termination of your relationship with WhatBench.

      (m)   Small Claims Court.   Notwithstanding the foregoing, either you or WhatBench may bring an individual action in small claims court.

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

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

      (p)   Courts.   In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose


    4. Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from WhatBench, or any products utilizing such data, in violation of the United States export laws or regulations.

    5. Disclosures. WhatBench is located at the address in Section 12.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

    6. Electronic Communications. The communications between you and WhatBench use electronic means, whether you use the Site or send us emails, or whether WhatBench posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from WhatBench in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that WhatBench provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.

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

    8. Copyright/Trademark Information. Copyright © 2018 WhatBench, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

    9. Contact Information:

    10. WhatBench, Inc.
      3200 Park Center Drive Suite 1400
      Costa Mesa, CA 92626
      support@whatbench.com