Terms of Use

Last revised: February 4, 2019

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”) and your use of our service, available via the Google Assistant service (“Google Assistant”) on any supported device (the “App”). 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, or by using the App, 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 the App, 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 or the App.

THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 13.2) 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.

  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”).  The App provides a means 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.  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 under the Consulting Company’s posting, so that such Résumés may be viewed by Clients through the App.  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 view Consulting Company postings through the App, available on Google Assistant, and contact Consulting Companies directly, to engage such Consulting Companies to perform Services.  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 and the App 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 posting material to the Site, Consulting Companies and Consultants 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 merely a Site visitor, 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. Use of App.
    1. Communication; Privacy. Before you can perform searches via the App, you will need to “link” your Google account to WhatBench, by following the instructions provided by Google Assistant.  The App allows you to use your Google Assistant-supported device to communicate with us, by voice. You are responsible for all of the interactions with us via the App. For example, it is possible that someone other than you could interact with us via the App, or that someone could overhear you interacting with us via the App.  It is also possible that Google Assistant will record your interactions with the App or with Google Assistant. We recommend that you consult your agreements with Google to learn more about how Google treats those interactions. By enabling the App on your Google Assistant-supported device, you accept full responsibility for how the App is used, by you or by anyone who uses your device. Your interactions with us via the App are subject to our Privacy Policy.  By installing the App, you authorize us to perform the actions and/or share with Google the information communicated to us.
    2. Search Results. The App will respond to your search requests by providing information concerning Consulting Companies that meet the criteria specified by you.  THE CONSULTING COMPANIES IDENTIFIED IN OUR SEARCH RESULTS, AND WHOSE LOGOS ARE DISPLAYED IN THOSE SEARCH RESULTS, ARE NOT AFFILIATED WITH WHATBENCH IN ANY WAY, AND HAVE NOT ENDORSED THE SERVICES OF WHATBENCH.
    3. Accuracy. We didn’t design or manufacture Google Assistant or your enabled device. It is possible that Google Assistant will not hear you correctly, will incorrectly translate what you said, or even say something to you different from what we asked it to say. By accepting these Terms, you are accepting that we are not responsible for inaccuracies in your interactions with us via the App.
  4. FEES. Use of the App and the Site are currently free.  We do not charge any fees to Clients for their use of the App.  We currently do not charge any fees to Consulting Companies or Consultants for their postings on the Site.
  5. 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 WhatBench grants Clients a limited license to use and access the App, via Google Assistant, for the location and evaluation of Consulting Companies and Consultants.
    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 App, 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 or App; (c) you shall not access the Site or App in order to build a similar or competitive website or service; and (d) except as expressly stated herein, no part of the Site or App 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 or App shall be subject to these Terms.  All copyright and other proprietary notices on the Site or App (or on any content displayed on the Site or App) must be retained on all copies thereof.
    3. Modification. WhatBench reserves the right, at any time, to modify, suspend, or discontinue the Site or App (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 App, or any part thereof.
    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 or App.
    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 App, and their 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 or App) 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.
  6. User Content
    1. User Content. “User Content” means any and all information and content that Consulting Companies and Consultants submit, upload, post, publish or display on or to the Site, including but not limited to company and Services descriptions and Résumés.  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 6.3).  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. Consulting Companies and Consultants hereby grant (and represent and warrant that they 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 and making it available through the App via Google Assistant.  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”:
      • 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.
      • 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 or App (“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.
  7. 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 users of the Site and the App 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 user of the Site or the App, we are under no obligation to become involved.
    4. Reviews. Through use of the App via Google Assistant, Clients may access reviews of Consulting Companies and/or Consultants (“Reviews”), or may be directed to third-party websites where such Reviews are posted.  Such Reviews may consist of comments, ratings, indicators of satisfaction, and other feedback.  WhatBench does not monitor Reviews, or verify any information in Reviews available in or through the App. 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.
    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 or the App, or the use of either (including any interactions with, or act or omission of, other Site or App 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.”
  8. 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 or the App, (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.
  9. Third-Party Links & Ads
    1. Third-Party Links & Ads. The Site may contain, and the App may display, 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.
  10. Disclaimers

THE SITE AND THE APP ARE 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 OR THE APP 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 OR THE APP, 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.

 

  1. Limitation of 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 AND/OR THE APP, EVEN IF WHATBENCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ACCESS TO, AND USE OF, THE SITE AND APP 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.

  1. Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Site and/or the App.  We may suspend or terminate your rights to use the Site (including your Account) and/or the App at any time for any reason at our sole discretion, including for any use of the Site or App in violation of these Terms.  Upon termination of your rights under these Terms, your Account and right to access and use the Site and/or the App will terminate immediately.  You understand that any termination of your Account on the Site may involve deletion of your User Content associated with your Account from our live databases.  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, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
  2. General
    1. Changes. These Terms are subject to occasional revision, and if we make any changes, we will post the revised Terms on the Site.  We may also notify you of substantial revisions through other communications.  It is important that you review the Terms whenever we modify them because if you continue to access or use the Site or the App after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms.  If you do not agree to be bound by the modified Terms, then you may not continue to access or use the Site or the App.
    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.
      • 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.
      • 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.
      • 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 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 the county where you reside 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.  Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, WhatBench will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration was frivolous or was brought for an improper purpose.
      • 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.
      • 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.
      • 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’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator 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.
      • 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.
      • 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.
      • 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.
      • 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.
      • Right to Waive; Changes. 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. Notwithstanding the provisions of the “Changes” section above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective. By rejecting any such change, you are agreeing that this Dispute Resolution section in effect as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) will continue to apply.
      • Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with WhatBench.
      • Small Claims Court. Notwithstanding the foregoing, either you or WhatBench may bring an individual action in small claims court.
      • 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.
      • 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.
      • Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the exclusive personal jurisdiction and venue of the courts located within Los Angeles County, California, for such purpose
    3. 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.
    4. WhatBench is located at the address in Section 13.8. 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.
    5. Electronic Communications. The communications between you and WhatBench use electronic means, whether you use the Site or the App, 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.
    6. Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site and the App (but your use of Google Assistant may be subject to other terms specified by Google, including Google’s own Terms of Service). 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.
    7. Copyright/Trademark Information. Copyright © 2019 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.
    8. Contact Information:

 

WhatBench, Inc.

3200 Park Center Drive,  Suite 1400

Costa Mesa, CA 92626

support@whatbench.com