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These Terms of Service (“Terms”) are applicable to all Users (as defined below) who use our Ontop perks & benefits marketplace (the “Ontop Marketplace” or simply the “Marketplace”).
By using the Ontop Marketplace, you agree to comply with and be bound by these Terms. Please review these Terms carefully. If you do not agree to these Terms, you should not use the Ontop Marketplace or any service offered by third parties through the Marketplace.
You will be informed if these Terms are updated pursuant to Section 12.1 - Changes.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 12.2 - DISPUTE RESOLUTION) 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. Ontop Perks & Benefits Marketplace Overview
Ontop has built the coolest Platform and wants its Users (both as defined below) to have the best experience while using it. The Ontop Marketplace is an amazing perks and benefits environment available from within our Platform where Users will have access to a broad variety of services that are offered all around the globe through our third-party partners and service providers.
“Benefit(s)” are the perks and/or benefits available to Users through the Ontop Marketplace Partners (both as defined below).
“Ontop Account” or the “Account” is the account that all Users need to create in order to use the Ontop Platform (as defined below).
“Ontop Card” or the “Card” is an international prepaid card offered by Ontop through a financial institution partner, which is topped up with the balance available in the Ontop Wallet (as defined below).
“Ontop Marketplace” is a marketplace created within Ontop’s Platform that allows Users to choose perks & benefits offered by Ontop and/or through its Marketplace Partners, as the case may be.
“Ontop Platform” or the “Platform” means the software as a service (SaaS) platform available on the Ontop website located at www.getontop.com.
“Ontop Wallet” or the “Wallet” is an e-wallet platform available on the Ontop Platform to Contractors who have access to information on amounts receivable under the terms of their contract(s) with Client(s) (as defined below). Through the Ontop Wallet, Contractors may request that funds in their Ontop Wallet be transferred to their personal bank accounts via wire transfers, ACH payment processing environment and/or other available payment methods, including credit to the Ontop Marketplace balance.
“Ontop Marketplace Partners”, “Marketplace Partners” or simply “Partners” are service providers around the world that Ontop has identified or with whom Ontop has developed partnerships in order to offer certain Benefits to Users (as defined below).
“Ontop Services” or the “Services” are all the services offered by Ontop through the Ontop Platform, whether by use of the Ontop Card, Ontop Marketplace and/or Ontop Wallet.
“Partner Services” are the services provided by the Marketplace Partners that are presented to Users through the Ontop Marketplace.
“Users” or “Independent Contractors” are the independent contractors (the “Contractors”) that use Ontop's worldwide remote working alternative solution that connects them with clients (the “Clients”), and who can use the Ontop Marketplace.
3. Access to the Ontop Marketplace
All Users with an Ontop Account on the Ontop Platform will have access to the Marketplace from within the Platform. Depending on the type of Benefits offered, Users may need to make payments through their Ontop Wallet and/or Card in order to be eligible for specific rewards.
4. Perks & Benefits Offered by Ontop Marketplace Partners
4.1 Through the Ontop Marketplace, Users will have access to a number of Benefits, such as (i) Cashback Benefits, (ii) Pre-Paid Benefits and (iii) Promotional Code Benefits (as defined below), which will connect the Users to our Marketplace Partners.
4.2 “Cashback Benefits'' are the Benefits that Ontop offers to the Users who choose to acquire specific services provided by Marketplace Partners by (i) using the Ontop Card and/or Ontop Wallet as the payment method and/or (ii) according to specific rules applicable to each Benefit. When the Ontop Marketplace presents its Users with Cashback Benefits offered by our Marketplace Partners, Users will be able to acquire Partner Services in exchange for credit in the form of cashback into their Ontop Wallet and/or Ontop Card balance, depending on the method of payment used for purchase by the User.
4.4 “Promotional Benefits” are Benefits in the form of promotional links and/or codes offered by Marketplace Partners that can be used by Users to access discounted rates to Partner Services. When Users use a promotional link and/or code to acquire Partner Services, they will need to acquire the Partner Services through the Partner’s website and/or platform, subject to the specific terms and conditions of the Marketplace Partner. Ontop does not intermediate the acquisition of the Partner Services beyond providing the promotional links and/or codes.
4.5 Limitation of Benefits offered to Users. Certain Benefits may not be available to Independent Contractors who provide services directly to Ontop Holdings Inc. The conditions of eligibility for specific Benefits will be included under the specific terms and conditions of each Benefit.
5. Third-Party Links
6. Liability for Marketplace Partner Services
Ontop is not responsible, nor is it liable for any failure or delay in the provision of services acquired by Users from Marketplace Partners. Ontop is not an agent of any Marketplace Partner or vice-versa. When Users acquire services offered by Marketplace Partners, they are bound by the Marketplace Partner terms and conditions relating to the relevant service. Ontop makes no express or implied warranties with respect to the services provided by Marketplace Partners. Users must take care to familiarize themselves with Marketplace Partner terms and conditions before acquiring services. Ontop has no obligation to facilitate communication between Marketplace Partners and Users. However, we will make all reasonable efforts to assist Users in the resolution of requests that may arise between Marketplace Partners and Users.
7. Other Terms Applicable to Ontop Marketplace Services
7.1 Ontop Platform Terms of Service. By using the Ontop Marketplace Services through access to your Ontop Account, you agree to be bound by the Ontop Platform Terms of Service, available at www.getontop.com/legal/terms-of-service. If you do use the Ontop Wallet to acquire Partner Services through the Ontop Marketplace, specific provisions of the Ontop Platform Terms of Service relating to the Wallet will apply.
7.2 Ontop Card Terms of Service. If you use your Ontop Card to acquire Partner Services through the Ontop Marketplace, the Ontop Card Terms of Service, available at www.getontop.com/legal/card-terms-of-service will apply.
7.5 AML Policy. Your access to Ontop Marketplace Services is also subject to our anti-money laundering policy (“AML Policy”). You can access our AML Policy manual at www.getontop.com/legal/anti-money-laundering-aml-policy-manual.
8. Term and Termination
Subject to this Section, these Terms will remain in full force and effect while you use the Marketplace. We may suspend or terminate your rights to use the Marketplace (including your Account) at any time for any reason at our sole discretion, including for any use of the Marketplace in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Marketplace will terminate immediately. Ontop will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account. Even after your rights under these Terms are terminated, any of the provisions hereunder which by their nature are meant to survive expiration or early termination of these Terms for any reason will remain in effect.
9.1 You agree to indemnify and hold Ontop (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all claims or demands made by any third party due to or arising from (a) your use of the Services provided by Ontop, (b) your violation of these Terms, (c) your violation of applicable laws or regulations. We reserve the right, at your expense, to take on the sole 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 our prior written consent. We will use reasonable efforts to notify you of any such claims, actions and/or proceedings when we become aware of them.
9.2 Release. You hereby release and forever discharge Ontop (and its officers, 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 from, or that relates directly or indirectly to, the Services.
ONTOP (AND ITS 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 SERVICES WILL MEET YOUR REQUIREMENTS, THAT IT WILL BE ACCURATE, COMPLETE, OR RELIABLE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ANY AND 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.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ONTOP (OR ITS 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 THE SERVICES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY AND ALL DAMAGES ARISING FROM OR RELATED TO THESE SERVICES (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 INCREASE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE SERVICES.
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.
12.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an email to the last email address you provided to us (if any), and/or by prominently posting notice of the changes on our website. You are responsible for providing us with your most current email address. In the event that the last email 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 email containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective immediately. Continued use of our Website 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.
12.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Ontop and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(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 Ontop 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 Ontop, 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 Ontop should be sent to: 1321 Upland Dr., PMB 15685, Houston, Texas 77043. After the Notice is received, you and Ontop may attempt to resolve the claim or dispute informally. If you and Ontop 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 at 1-800-778-7879. 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 your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. 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 Ontop made to you prior to the initiation of arbitration, Ontop 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 Ontop 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 Ontop, 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 Ontop.
(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 Ontop in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ONTOP 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 CLIENT, CONTRACTOR AND/OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT, CONTRACTOR AND/OR 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 Ontop.
(m) Small Claims Court. Notwithstanding the foregoing, either you or Ontop 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 the Southern District of Miami-Dade County, Florida, for such purpose.
12.3 Governing Law; Jurisdiction. These Terms will be governed and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of law provisions.
12.4 Export. The Services 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 Ontop, or any products utilizing such data, in violation of the United States export laws or regulations.
12.5 Electronic Communications. The communications between you and Ontop use electronic means, whether you use our website or send us emails. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy as if it were a hardcopy. The foregoing does not affect your non-waivable rights.
12.6 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not be constituted as a waiver of such right or provision. The section titles used in these Terms are for convenience only and have no legal or binding 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. Your relationship to Ontop is that of an independent contractor, and neither party is an agent or partner of the other. These Terms and your rights and obligations hereunder may not be assigned, subcontracted, delegated or otherwise transferred by you without Ontop’s prior written consent, and any attempted assignment, subcontracting, delegation or transfer in violation of the foregoing will be null and void. Ontop may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
12.7 Copyright/Trademark Information. All trademarks, logos and service marks (“Marks”) displayed on the Ontop Marketplace are our property or that of the Marketplace Partners and/or other third parties. You are not permitted to use these Marks without our prior written consent or the consent of the third party that owns the Marks.
12.8 Contact Information:
Address: 251 Little Falls Drive, Wilmington, New Castle County, Delaware, 19808