Terms of Service
Effective: July 3, 2019
These Terms of Service constitute a legally binding agreement between you and Punch List, Inc. (together with its affiliates, “Punch List”, “we,” “our” or “us”) governing your use of the Punch List Platform (as defined below), our website (the “Site”) and mobile applications (the “Apps”). The related services provided by Punch List to potential Contractors and Homeowners (each as defined in Section 1), the Site, and Apps are collectively referred to as the “Punch List Platform.”
Your use of the Punch List Platform constitutes your acceptance of and agreement to all of the terms and conditions in this Agreement and any future amendments and additions to this Agreement as we may publish from time to time.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND PUNCH LIST CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 16, AS APPLICABLE). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS IN SECTION 16, AS APPLICABLE) AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PUNCH LIST PLATFORM.
A few highlights of these Terms of Service include:
Your agreement that the Punch List Platform is provided “as is” and without warranty (Section 14).
Your agreement that Punch List has no liability regarding the Punch List Platform or the performance of Construction Services (as defined below at Section 1) (Section 14).
Your acknowledgment and agreement that Homeowners, and not Punch List, scope, supervise, direct, control, and monitor a Contractor’s work and the Construction Services (Section 1).
Your acknowledgement and agreement that Homeowners are solely responsible for determining if the Contractor they hire is qualified to perform the task at hand.
Your acknowledgement and agreement that Contractors are independent contractors of Homeowners and not employees, independent contractors or service providers of Punch List (Sections 1 and 10)
Your consent to release Punch List from liability based on claims between Users (Section 3), in respect of Contractor claims (Section 10) and generally (Section 14).
Your agreement to indemnify Punch List from claims due to your use or inability to use the Punch List Platform or content submitted from your account to the Punch List Platform (Section 15).
Your consent to submit any claims against Punch List to binding arbitration, and on an individual basis only, to the extent permissible by law (Section 16).
1. The Punch List Platform Connects Contractors and Homeowners
The Punch List Platform is a mobile application-based project management and communications platform which enables connections between Homeowners and Contractors. “Homeowners” are individual homeowners and/or individuals, such as renters or agents, with authorization from the homeowner seeking to obtain contractor, remodeling or other home construction services (“Construction Services”) from Contractors and are therefore clients of Contractors, and “Contractors” are individuals and/or businesses seeking to perform Construction Services for Homeowners. Homeowners and Contractors together are hereinafter referred to as “Users.” If you agree on the terms of a Construction Service with another User, you and such other User form a Construction Agreement (as defined below) directly between the two of you as set forth in more detail in Section 3 below.
CONTRACTORS ARE INDEPENDENT CONTRACTORS OF HOMEOWNERS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF PUNCH LIST. PUNCH LIST DOES NOT PERFORM CONSTRUCTION SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES. USERS HEREBY ACKNOWLEDGE THAT PUNCH LIST DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A CONTRACTOR’S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE CONSTRUCTION SERVICES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
The Punch List Platform only enables project management and communication between Users for the fulfillment of Construction Services. Punch List is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Construction Services, Contractors, Homeowners, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings provided by Users with respect to each other. Punch List makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Construction Services requested or Construction Services provided by, or the communications of or between, Users identified through the Punch List Platform, whether in public, private, or offline interactions or otherwise howsoever.
2. User Vetting and User Representations and Warranties
Contractors alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering services and undertaking Construction Services. Indeed, certain types of Construction Services and services may be prohibited altogether, and it is the responsibility of Contractors to avoid such prohibited Construction Services and services. Penalties may include fines or other enforcement. If you have questions about how local laws apply to a Construction Service, you can and should first seek separate legal guidance.
Because Punch List does not oversee, monitor or supervise the posting, scoping or performance of Construction Services, Homeowners must determine for themselves whether a Contractor is qualified to perform the specific Construction Service at hand. Homeowners may wish to consult their state/provincial/territorial or local requirements to determine whether certain Construction Services are required to be performed by a licensed professional.
In Punch List’s sole discretion, Users may be subject to a vetting process before they can register for and during their use of the Punch List Platform, including but not limited to a verification of identity through third-party services as appropriate (“Identity Checks”). Although Punch List may perform Identity Checks, Punch List is not required to do so and cannot confirm that each User is who they claim to be. Punch List cannot and does not assume any responsibility for the accuracy or reliability of Identity Check information or any information provided through the Punch List Platform. Punch List has discretion to include or exclude potential Users based off of vetting process results.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Punch List will not be liable for any false or misleading statements made by Users of the Punch List Platform. NEITHER PUNCH LIST NOR ITS AFFILIATES, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, LICENSORS, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “PUNCH LIST AND AFFILIATES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PUNCH LIST PLATFORM AND YOU HEREBY RELEASE PUNCH LIST AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PUNCH LIST PLATFORM.
User Representations and Warranties
You represent and warrant that: (i) you are 18 years of age or older or are at least of the legally required age in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts, and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You hereby warrant and represent that, other than as fully and promptly disclosed to Punch List as set forth below, you do not have any motivation, status, or interest which Punch List may reasonably wish to know about in connection with the Punch List Platform, including without limitation, if you are using or will or intend to use the Punch List Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to Punch List in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the Punch List Platform.
By registering or using the Punch List Platform to offer, post, or provide Construction Services, as a Contractor, you represent and warrant that you, and your employees and Assistants (as defined below) who may perform work for you, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which you may be subject in the jurisdiction(s) in which you offer your Construction Services and in relation to the specific job you are performing. Contractors additionally represent and warrant that you will provide timely, high-quality services to your Homeowners, you will only offer and provide services for which you have the necessary skills, expertise and, if applicable, license, and you will provide the Construction Services safely and in accordance with all applicable laws, and that you have the legal right to work in the country in which you are performing Construction Services.
Homeowners additionally represent and warrant that you either own the property for which Construction Services are being done, or are an authorized person (such as a renter or agent) by the homeowner to engage Contractors the Construction Services.
3. Contract between Homeowners and Contractors
You acknowledge and agree that a legally binding contract (the “Construction Agreement”) is formed when you agree on the terms of a Construction Service with another User. Homeowner and Contractor are responsible for abiding by contract formation laws and requirements and have complete discretion both with regard to whether to enter into a written Construction Agreement with each other and with regard to the terms of any Construction Agreement, provided that any such agreements do not conflict with, narrow, or expand Punch List’s rights and obligations under this Agreement and provided that such agreements abide by required law. To the extent the Contractor chooses to use the Punch List Platform for project management and payment, the terms of the Construction Agreement shall be deemed to include the terms set forth in this Section 3.
The Construction Agreement is a contractual relationship directly between the Homeowner and Contractor and you agree that Punch List is not a party to any Construction Agreement and the formation of a Construction Agreement will not, under any circumstance, create an employment or other service relationship between Punch List and the Contractor (or Assistants (as defined below)), nor will it create an employment relationship between the Homeowner and the Contractor (or Assistants). Punch List’s role is restricted solely limited to provide a place where the Homeowner and the Contractor may track the progress of the Construction Services and to facilitate payment between the parties using the PSP. In acting as the limited payment facilitation agent for particular Construction Services, Punch List disclaims any other agency or authority to act on behalf of the Contractor or the Homeowner, and assumes no liability or responsibility for any acts or omissions of the Contractor or the Homeowner, either within or outside of the Punch List Platform.
Where approved in advance by the Homeowner, the Contractor is not obligated to personally perform the Construction Services and may delegate any Construction Services to contractors, subcontractors, agents, assistants, or other personnel engaged by the Contractor (collectively “Assistants”). The Contractor assumes full and sole responsibility for the acts and omissions of such Assistants, including without limitation the payment of all compensation, benefits and expenses of Assistants, if any, and for all required and applicable income tax withholdings as to the Provider and all persons engaged by the Provider in the performance of the Construction Services.
While using the Punch List Platform, Homeowners, in their sole discretion, determine whether they will be present or not when a Construction Service is performed and/or completed. Homeowners who elect not to be present when a Construction Service is performed and/or completed agree that if someone other than them (i.e. spouse, roommate, friend, etcetera) is present when the Construction Service is performed, they are appointing that person as their agent (“Homeowner’s Agent”) and the Contractor may take and follow direction from the Homeowner’s Agent as if such direction was given from the Homeowner him or herself.
The Homeowner shall pay their Contractor directly for the Construction Services through the PSP as indicated on the Punch List Platform at the rates agreed to by the parties in the Construction Agreement. Each User agrees to comply with the Construction Agreement and this Agreement during the engagement, performance and completion of a Construction Service. Both Users agree to notify Punch List of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally for at least thirty (30) days before initiating any proceeding. Punch List reserves the right to suspend or terminate any account pending the resolution of any dispute.
4. Billing and Payment
Users of the Punch List Platform contract for Construction Services directly with other Users. Payment for Construction Services is made directly from the Homeowner to the Contractor via the PSP, and not by or through Punch List. Homeowners will be solely responsible for paying for each Construction Service and Punch List is not obligated to pay Contractor for Homeowner’s failure to pay.
Users may be required to register with the PSP and agree to terms of service of the PSP (the “PSP Services Agreement”). Please note that Punch List is not a party to the PSP Services Agreement and has no obligation or liability to any User under the PSP Services Agreement.
Users of the Punch List Platform will be liable for any taxes required to be paid on the Construction Services provided under the Agreement.
5. Mobile App Updates and Upgrades
6. Termination and Suspension
Punch List may terminate or limit your right to use the Punch List Platform in the event that we are investigating or believe that you have breached any provision of this Agreement (a “User Breach”), by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. If Punch List terminates or limits your right to use the Punch List Platform pursuant to this Section 6, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party.
Even after your right to use the Punch List Platform is terminated or limited, this Agreement will remain enforceable against you. Punch List reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 16 of these Terms of Service.
Punch List reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Punch List Platform at its sole discretion. Punch List is not liable to you for any modification or discontinuance of all or any portion of the Punch List Platform. Punch List has the right to restrict anyone from completing registration as a Contractor if Punch List believes such person may threaten the safety and integrity of the Punch List Platform, or if, in Punch List’s discretion, such restriction is necessary to address any other reasonable business concern.
You may terminate this Agreement at any time by ceasing all use of the Punch List Platform. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
7. Account, Password, Security, and Mobile Phone Use
You must register with Punch List and create an account to use the Punch List Platform (an “Account”). You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Punch List for accessing the Punch List Platform. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. If you are accessing and using the Punch List Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms provided herein. Punch List has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to contact Punch List immediately.
By providing your mobile phone number and using the Punch List Platform, you hereby affirmatively consent to Punch List’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (a) perform and improve upon the Punch List Platform, (b) facilitate the carrying out of Construction Services, (c) provide you with information and reminders regarding your registration, upcoming Construction Services or milestones, changes and updates, service outages or alterations, and (d) share with other Users in private when both the Contractor and the Homeowner have accepted one another’s Construction Services. These calls and texts may include, among other things, reminders about upcoming Construction Services and/or in follow up to any push notifications delivered through our mobile application and the Punch List Platform. Punch List will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Apps, texting “STOP” in response to any texts, or by emailing firstname.lastname@example.org and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing email@example.com and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
8. User Generated Content
“User Generated Content” is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the Punch List Platform and its Users, including without limitation to the applicable Construction Agreement. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Punch List:
Is not involved in the creation or development of User Generated Content.
Disclaims any responsibility for User Generated Content.
Cannot be liable for claims arising out of or relating to User Generated Content.
Is not obligated to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Punch List Platform at its sole discretion.
You hereby represent and warrant to Punch List that your User Generated Content (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Punch List or purport you to act as a representative or agent of Punch List; and (viii) will not create liability for Punch List or cause Punch List to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
You hereby grant Punch List a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights you have in your User Generated Content, in any media now known or not currently known in order to perform and improve upon the Punch List Platform.
9. Links to Third-Party Websites
The Punch List Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Punch List or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Punch List Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Punch List does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Punch List is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Punch List has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Punch List Platform at its sole discretion.
The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. Punch List expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Punch List Platform. You hereby agree to hold Punch List harmless from any liability that may result from the use of links that may appear on the Punch List Platform.
As part of the functionality of the Punch List Platform, you may link your account with online accounts you may have with third party service providers (such as Facebook and Stripe) (each such account, a “Third-Party Account”) by either: (i) providing your Third-Party Account login information through the Punch List Platform; or (ii) allowing Punch List to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Punch List and/or grant Punch List access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Punch List to pay any fees or making Punch List subject to any usage limitations imposed by such third-party service providers. By granting Punch List access to any Third-Party Accounts, you understand that (1) Punch List may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the “SNS Content”) so that it is available on and through the Punch List Platform via your account, including without limitation any friend lists, and (2) Punch List may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your account on the Punch List Platform. Please note that if a Third-Party Account or associated service becomes unavailable or Punch List’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Punch List Platform. You will have the ability to disable the connection between your account on the Punch List Platform and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY PROVIDERS. Punch List makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Punch List is not responsible for any SNS Content.
10. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, PUNCH LIST DOES NOT PERFORM CONSTRUCTION SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM CONSTRUCTION SERVICES. EACH USER ASSUMES ALL LIABILITY FOR PROPER CLASSIFICATION OF SUCH USER’S WORKERS BASED ON APPLICABLE LEGAL GUIDELINES. IF A HOMEOWNER, YOU INDEMNIFY AND HOLD PUNCH LIST AND AFFILIATES HARMLESS, AND IF A CONTRACTOR, YOU FULLY AND FINALLY RELEASE PUNCH LIST AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, LOSSES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES THAT CONTRACTORS OR ASSISTANTS MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, COMMON LAW, CIVIL LAW, STATUTE OR OTHERWISE, IN RESPECT OF CONSTRUCTION SERVICES OR CONSTRUCTION AGREEMENTS OR THE USE OF THE PUNCH LIST PLATFORM, INCLUDING WITH RESPECT TO MISCLASSIFICATION OF CONTRACTORS AND ASSISTANTS AND THE TERMINATION OR CESSATION OF ANY CONSTRUCTION SERVICE, CONSTRUCTION AGREEMENTS, THIS AGREEMENT OR THE USE OF THE PUNCH LIST PLATFORM.
Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Punch List. Each User acknowledges and agrees that Punch List does not, in any way, supervise, scope, direct, control or monitor a Contractor’s work or Construction Services performed in any manner. Punch List does not set a Contractor’s work hours or location of work. Punch List will not provide any equipment, tools, labor or materials needed for a particular Construction Service. Punch List does not provide any supervision to Users.
The Punch List Platform is not an employment agency service or business and Punch List is not an employer of any User. As such, Punch List is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to applicable sales taxes, unemployment or employment insurance, social security, disability insurance or any other applicable federal, provincial or state withholdings in connection with a User’s use of the Punch List Platform. Contractors acknowledge and confirm that they are responsible for exercising their own business judgment in entering into Construction Agreements and performing Construction Services and that, depending on how they exercise such business judgment, there is a chance for individual profit or loss.
This Section 10 in no way limits the generality of Section 14.
11. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Punch List Platform is owned by Punch List, excluding User Generated Content, which Users hereby grant Punch List a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Punch List owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Punch List Platform without Punch List’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content.
Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Punch List and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Punch List, including without limitation Punch List and Punch List logos, are service marks owned by Punch List. Any other trademarks, service marks, logos and/or trade names appearing via the Punch List Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Additionally, you may choose to or we may invite you to submit comments, ideas, or feedback about the Punch List Platform, including without limitation about how to improve our services or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place Punch List under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Punch List does not waive any rights to use similar or related Feedback previously known to Punch List, developed by its employees, or obtained from sources other than you. You acknowledge that all email and other correspondence that you submit to us shall become our sole and exclusive property.
12. Copyright Complaints and Copyright Agent
Punch List respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Punch List Platform infringe upon your copyright or other intellectual property right, please send the following information to Punch List’s Copyright Agent at firstname.lastname@example.org:
A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Punch List Platform where the material you claim is infringed is located. Include enough information to allow Punch List to locate the material, and explain why you think an infringement has taken place;
A description of the location where the original or an authorized copy of the copyrighted work exists -- for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
Your address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
13. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of Punch List and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Punch List Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify Punch List in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Punch List upon termination of this Agreement for any reason whatsoever.
The term “Confidential Information” shall mean any and all of Punch List’s trade secrets, confidential and proprietary information, and all other information and data of Punch List that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to Punch List or Punch List’s business, operations or properties, including information about Punch List’s staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
14. Disclaimer of Warranties
(a) Use Of The Punch List Platform Is Entirely At Your Own Risk
THE PUNCH LIST PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUNCH LIST MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE PUNCH LIST PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE PUNCH LIST PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PUNCH LIST PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.
THIS SERVICE MAY CONTAIN TRANSLATIONS POWERED BY GOOGLE. GOOGLE DISCLAIMS ALL WARRANTIES RELATED TO THE TRANSLATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, RELIABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Punch List does not warrant, endorse, guarantee or assume responsibility for any service advertised or offered by a third party through the Punch List Platform or any hyperlinked website or featured in any banner or other advertising, and Punch List will not be a party to or in any way be responsible for monitoring any transaction between you and third-party Contractors of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate. Without limiting the foregoing, Punch List and Affiliates do not warrant that access to the Punch List Platform will be uninterrupted or that the Punch List Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Punch List Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Construction Service, service, information or materials provided through or in connection with the use of the Punch List Platform. Punch List and Affiliates are not responsible for the conduct, whether online or offline, of any User. Punch List and Affiliates do not warrant that the Punch List Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Punch List and Affiliates cannot and do not guarantee that any personal information supplied by you will not be misappropriated, intercepted, deleted, destroyed or used by others.
Each Homeowner is responsible for determining the Construction Service and selecting their Contractor and Punch List does not warrant any goods or services purchased by a Homeowner and does not recommend any particular Contractor. Punch List does not provide any warranties or guarantees regarding any Contractor’s professional accreditation, registration or license.
In addition, no individual or entity shall be a third party beneficiary of these terms. These terms are solely for the benefit of the parties to this Agreement and are not intended to and shall not be construed to give any person or entity other than you any interest, remedy, claim, liability, reimbursement, claim of action or any other rights (including, without limitation, any third party beneficiary rights), with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
(b) No Liability
You acknowledge and agree that Punch List is only willing to provide the Punch List Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Punch List and Affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the Punch List Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any User, any instruction, advice, act, or service provided by Punch List and Affiliates and any destruction of your User Generated Content.
UNDER NO CIRCUMSTANCES WILL PUNCH LIST AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY PUNCH LIST, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PUNCH LIST PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY.
PUNCH LIST AND AFFILIATES EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF ITS PUNCH LIST PLATFORM. PUNCH LIST AND AFFILIATES ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE PUNCH LIST PLATFORM.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT PUNCH LIST AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO PUNCH LIST DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Some jurisdictions do not allow the exclusion of certain warranties or limitation of liability for consequential or incidental damages, so certain aspects of the limitations above may not apply to you.
THE PUNCH LIST PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. BECAUSE PUNCH LIST IS NOT A PARTY TO OR OTHERWISE INVOLVED IN THE CONSTRUCTION AGREEMENT BETWEEN USERS OR IN THE COMPLETION OF THE CONSTRUCTION SERVICES, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU HEREBY RELEASE PUNCH LIST AND AFFILIATES AND THEIR CORPORATE PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL, OR EXEMPLARY), EXPENSES, LOSSES, GOVERNMENTAL OBLIGATIONS, SUITS AND/OR CONTROVERSIES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH READS AS FOLLOWS: “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.”
You hereby agree to indemnify, defend, and hold harmless Punch List and Affiliates, and their attorneys, insurers, independent contractors, providers, successors and assigns (the “Indemnified Parties”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use the Punch List Platform or perform Construction Services, or (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party and (iv) any content submitted by you or using your account to the Punch List Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. Punch List reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Punch List.
16. Dispute Resolution – Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND PUNCH LIST CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND PUNCH LIST TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Informal Negotiations
To expedite resolution and reduce the cost of any dispute, controversy or claim between you and Punch List (each a “Claim” and collectively “Claims”), you and Punch List agree to first attempt to negotiate any Claim (except those Claims expressly excluded below) informally for at least thirty (30) days before initiating any arbitration. This pre-arbitration negotiation shall be initiated by providing written notice to the other party — including a brief written statement describing the name, address, and contact information of the notifying party, the facts giving rise to the Claim, and the relief requested. You must send such written notice to Punch List, Inc., 230 California Street, Suite 405, San Francisco, California 94111, Attention: Legal. If necessary to preserve a Claim under any applicable statute of limitations, you or Punch List may initiate arbitration while engaging in the informal negotiations.
During this pre-arbitration negotiation, all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability, in arbitration or other proceeding involving the parties.
After a good faith effort to negotiate, if you or Punch List believe a Claim cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”).
(b) Agreement to Binding Arbitration
IN EXCHANGE FOR THE BENEFITS OF THE SPEEDY, ECONOMICAL, AND IMPARTIAL DISPUTE RESOLUTION PROCEDURE OF ARBITRATION, YOU AND PUNCH LIST MUTUALLY AGREE TO WAIVE YOUR RESPECTIVE RIGHTS TO RESOLUTION OF ALL CLAIMS BETWEEN YOU (EXCEPT THOSE EXPRESSLY EXCLUDED BELOW) IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTES BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS AS SET FORTH HEREIN.
This agreement to arbitrate contained in this Section 16 (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives the termination of this Agreement and your relationship with Punch List.
Claims covered by this Arbitration Agreement include, but are not limited to, any dispute, claim or controversy whether based on past, present or future events arising out of or relating to: this Agreement and prior versions (including the breach, termination, enforcement, interpretation or validity thereof); the Punch List Platform; your relationship with Punch List; the threatened or actual suspension, deactivation or termination of your Account or this Agreement; any city, county, state or federal wage-hour law; compensation, breaks and rests periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, trade secrets, unfair competition, emotional distress; any promotions or offers made by Punch List; breach of any express or implied contract or breach of any express or implied covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Fair Labor Standards Act, Civil Rights Act of 1964, Uniform Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Punch List and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters; and all other federal and state statutory and common law claims.
If there is a dispute about the arbitrability of any Claim (including questions about the scope, applicability, interpretation, validity, and enforceability of this arbitration agreement), you and Punch List agree that this threshold dispute shall be delegated to the arbitrator (not a court) and that the arbitrator shall have initial authority to resolve such threshold disputes, except as expressly provided below.
YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU AND PUNCH LIST ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, UNLESS EXPRESSLY EXCLUDED IN THIS ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT IS INTENDED TO REQUIRE ARBITRATION OF EVERY CLAIM OR DISPUTE THAT CAN LAWFULLY BE ARBITRATED, EXCEPT THOSE CLAIMS AND DISPUTES WHICH BY THE TERMS OF THIS ARBITRATION AGREEMENT ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT TO ARBITRATE.
(c) Agreement Prohibiting Class Actions and Non-Individualized Relief
Except as otherwise required under applicable law, you and Punch List agree that any arbitration will be limited to the Claim between Punch List and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND PUNCH LIST ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE PROCEEDING (“Class Action Waiver”). Further, unless both you and Punch List otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. Notwithstanding the foregoing, this Class Action Waiver shall not apply to Private Attorney General Act Claims brought against Punch List, which are addressed separately in Section 16(d) below.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (as defined below), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(d) Representative PAGA Waiver
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, to the fullest extent allowed by law: (i) you and Punch List agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (ii) for any claim brought on a private attorney general basis, including under PAGA, both you and Punch List agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (1) the unenforceable provision shall be severed from this Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (3) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.
(e) Rules and Logistics Governing Arbitration
The arbitration will be commenced and conducted under the AAA Rules in effect at the time the arbitration is initiated and modified by the terms set forth in this Agreement, and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. You and Punch List agree that the arbitration shall be administered before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by the AAA.
As part of the arbitration, both you and Punch List will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim(s). The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision, which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all Claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules) subject to the following modifications:
If Punch List initiates arbitration under this Arbitration Agreement, Punch List will pay all AAA filing and arbitration fees.
If a Homeowner or Contractor files a Claim in accordance with this Arbitration Agreement and the associated claim for damages does not exceed USD $10,000, Punch List will pay all AAA filing and arbitration 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 (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
If a Homeowner or Contractor files a Claim in accordance with this Arbitration Agreement and the associated claim for damages exceeds USD $10,000, Punch List shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses, and the Homeowner or Contractor shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which they perform Construction Services, unless a lower fee amount would be owed by you as required by law or the applicable AAA Rules. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. If the arbitrator finds that the substance of your claim or the relief sought is frivolous or brought for an improper purpose, however, then the allocation of fees will be governed by the applicable AAA Rules.
Except as required by law or the applicable AAA Rules, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the Claim(s) were litigated in a court, such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the conclusion of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law or the applicable AAA Rules.
Unless you and Punch List agree otherwise, any arbitration hearings between Punch List and a Contractor will take place in the county of your billing address, and any arbitration hearings between Punch List and a Homeowner will take place in the county in which you received Construction Service. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration.
(f) Exceptions to Arbitration
The following types of Claims may be, but are not required to be, arbitrated under the Arbitration Agreement:
Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
Small claims actions that are within the scope of small claims court jurisdiction and brought on an individual basis;
Applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
A representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the representative PAGA Waiver in Section 16(d) is deemed unenforceable by a court of competent jurisdiction; and
Claims that may not be subject to arbitration as a matter of general law not preempted by the Federal Arbitration Act.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. However, you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. This Agreement and Arbitration Agreement do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Agreement and do not prevent you from receiving an award for information provided to any government agencies.
Except as otherwise provided in the severability provisions in Sections 16(c) and 16(d) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Right to Opt Out of Arbitration Agreement
If you are a Contractor, you may opt out of the Arbitration Agreement by notifying Punch List in writing within thirty (30) days of your agreement to these Terms of Service. To opt out, you must send a written notification to Punch List at Punch List, Inc., 230 California Street, Suite 405, San Francisco, California 9411, Attention: Legal, that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
17. Governing Law
Except as provided in Section 16 or expressly provided otherwise, this Agreement and your use of the Punch List Platform will be governed by, and will be construed under, the laws of the State of Delaware, without regard to choice of law principles. This choice of law provision is only intended to specify the use of Delaware law to interpret this Agreement.
18. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
19. General Provisions
Failure by Punch List to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and Punch List with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the “Agreement Prohibiting Class Actions and Non-Individualized Relief” in Section 16, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable, (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable or, (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary, (2) to an acquirer of assets, or (3) to any other successor or acquirer. Any assignment in violation of this Section 19 shall be null and void. This Agreement will inure to the benefit of Punch List, its successors and assigns.
20. Changes to this Agreement and the Punch List Platform
21. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
22. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
If you have any questions about these Terms of Service or about the Punch List Platform, please contact us by email at email@example.com or by mail to 230 California Street, Suite 405, San Francisco, California 94111.