Last Modified: June 1, 2019
THESE TERMS OF SERVICE (these “Terms of Service”) is an agreement by and between Bullpen Analysis Services, LLC, a California limited liability company, located at 3000 Sacramento Street, Unit 8, San Francisco, CA 95115 (the “Company” or “Bullpen”) and You, the User (as defined below), (Company and User each a “Party” and collectively the “Parties”) effective as of May 1, 2019 (“Effective Date”). You must read and accept the terms and conditions in this Terms of Services to be a User. Anyone agreeing to this Terms of Service on behalf of a company, business, organization, or person, represents and warrants that he/she/it has the authority to bind the company, business, organization, or person. The Website is a copyrighted work belonging to Company.
The Company Platform is offered and available to users who are 18 years of age or older, and reside in the United States or any of its territories or possessions. By using this Company Platform or Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Company Platform or Website
“ACH” shall mean automated clearing house.
“Business User” is a company, individual business, person, or organization who creates an account on and utilizes the Website to find and hire Contractor User(s) to provide real estate advisory and/or analysis services.
“Company Platform” refers to Company’s website and related services for collaboration and communication between Contractor Users and Business Users.
“Contractor Hourly Rate” refers to the fee set by the Contractor User that is based on an hourly rate and is subject to change at the Contractor User’s sole discretion. The Contractor User’s minimum hourly rate fee shall be Twenty and 00/100 Dollars per hour ($20.00/hour), and there shall be no maximum hourly rate fee:[PLEASE REFER TO CONTRACTOR USER’S FEE SCHEDULE FOR FURTHER DETAILS]
“Contractor Flat Fee Rate” refers to the following fee schedule for work performed by Contractor User:[PLEASE REFER TO CONTRACTOR USER’S FEE SCHEDULE FOR FURTHER DETAILS]
“Contractor User” refers to any person who creates an account on and utilizes the Website to provide real estate advisory and/or analysis services to Business User(s). Contractor Users are not employees or agents of Company or Business User(s).
“Disputes” shall mean a dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement or interpretation thereof, or to the use of the Company Platform.
“Retainer” refers to a funds deposited with Bullpen in which Business User can deposit money to billed against for payment of Contractor Hourly Rate or Contractor Flat Fee Rate.
“Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.
“Intellectual Property Right” means all patent rights, copyrights, trademark rights, rights in trade secret (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (whether registered or unregistered) throughout the world.
“Service Contract” refers to a contract between Business User and Contractor user as a result of use of Company Platform.
“User,” “You” or “Your” refers to both Business User(s) and Contractor User(s).
“Website” or “Site” shall mean https://bullpenanalysisserv ces.com, or https://bullpenre.com/, and all services or content available through the Website, including any subpages.
“Work Product” means the completed service performed and delivered by the Contractor User per Business User’s agreement with Contractor User in a medium agreed upon between the Contractor User and Business User, or, in the event no medium is agreed upon, then in a reasonable medium.
“Work Week” shall mean Monday through Sunday.
2.Purposes of Website and Company Platform.
(a) Website for Business Purposes Only. Website is for business purposes only and is not for personal, household, or consumer use. Each User who registers an account on Website represents and warrants that his/her/its use of Website shall be for business purposes only.
(b) Company Platform. Company Platform and Website are a platform and marketplace where Users can communicate and collaborate with each other to buy or sell real estate analyst services. While the Company allows Contractor Users to facilitate Service Contracts between Users, the Company is neither a party to these contracts nor a third-party beneficiary to these contracts.
(c) Reliance on Information Posted. The information presented on or through the Company Platform and Website is made available solely for general information purposes. Company does not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. COMPANY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER VISITOR TO THE WEBSITE, INSIGHT FINANCIAL SERVICE, OR ONLINE PLATFORM, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.
(d) Content by Third Parties. The Company Platform may include content provided by third parties, including materials or User contributions provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
(a) Company Relationship with Contractor Users. The relationship between Contractor User and Company is that of an independent contractor. Company does not guarantee the performance of Contractor User or his/her fitness for Business User’s specific needs. Company encourages Business User to vet or perform any other desired due diligence on Contractor User before hiring him or her.
(b) Business User Accounts. Each Business User agrees that, unless Business User indicates otherwise, all content posted by Business User on Website shall be public. Business User also agrees that all information posted by Business User on Website shall be true, accurate, and complete and Business User shall make all best efforts to update information on the Website that may become untrue, inaccurate, or incomplete.
(c) Contractor User Accounts. Each Contractor User agrees that he/she is an independent contractor using Company’s Website to connect with Business Users. Each Contractor User agrees that, unless he/she indicates otherwise, all content posted by him/her on Website shall be public. Contractor User also agrees that all information posted by him/her on Website shall be true, accurate, and complete and Business User shall make all best efforts to update information on the Website that may become untrue, inaccurate, or incomplete.
4.Contracts Between Business User and Contractor User.
(a) Contracting. Business User may contract with Contractor User through the Website or Company Platform to hire a Contractor or post jobs on Website or calling Company. Business User can choose the Contractor User(s) they are interested in and directly interview them. If a Business User decides to hire a Contractor User, Business User and Contractor User decide whether they wish to contract on an hourly rate or flat fee. If Business User and Contractor User agree to an hourly rate, Business User agrees to pay the Contractor Hourly Rate set forth in the Definitions section above. If Business User and Contractor User agree to a flat fee, Business User agrees to pay the Contractor Flat Fee Rate set forth in the Definitions section above. Any such contracts reached between Business User and Contractor User are solely between those two parties. Company shall not be a party to any contract resulting from Users’ use of Website.
(b) Payment Methods. Business User has the following two (2) payment methods: (a) payment via automatic withdrawal with an on-file credit card, PayPal account, or other approved payment automatic payment method, or (b) by depositing money into Business User’s Retainer to draw against as the fee is earned.
(c) Payment of Contractor Hourly Rate. For an hourly rate contract, Business User shall pay Contractor Hourly Rate in such amount invoiced for the prior Work Week. This will be done automatically via either of the payments methods set forth in Section 4(b) above.
(d) Payment of Contractor Flat Fee Rate. For a flat fee contract, Business User shall pay the entire amount of the flat fee in the form of a retainer at the time the Contractor User commences work on the contracted for service. Upon completion of the project, any excess flat fee retainer shall be released to the Business User at the sooner of (1) when the Contractor User submits work for approval to the Business User, and the Business User provides Contractor User written approval of the Work Product, or (2) five (5) business days after the Contractor User submits the Work Product to Business User for final approval. For example, if the flat fee is $10,000 and the job is 10 weeks long, Business User agrees to pay $1,000 per week at the end of each Work Week for the entirety of the 10 week term. This will be done automatically via either of the payments methods set forth in Section 4(b) above.
(e) Payment Authorization. By agreeing to this Terms of Service, Business User is giving Company the right to, without further authorization, charge the on-file credit card, PayPal account, ACH, Retainer, or other approved payment method after the expiration of the review period, which shall be five (5) days.
(f) Company Fees. Contractor User does not get paid until Business User pays Company for service rendered from a prior Work Week or otherwise. Once Business User pays and delivers invoiced amount to Company, Company shall retain thirty five percent (35%) of the fee and pay and deliver the remaining sixty-five percent (65%) to Contractor User.
(g) Company Not Responsible for Services or Payments. Company merely provides a platform for Company Platform and do not have any responsibility or control over the services provided by Contractor User that Business User purchases. Nothing in this Terms of Service deems or will be interpreted to deem Company as Business User or Contractor User’s agent with respect to any services rendered hereunder, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Company does not guarantee the performance, functionality, quality, or timeliness of Contractor User’s services or that a Business User can or will make payments.
5. Intellectual Property. The Website, Company Platform, and the online platform, and its entire contents, features and functionality (including, but not limited to, all information, source code, algorithms, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are wholly owned by Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Company Platform for your business or commercial use only. These Terms of Service do not constitute a sale or convey to you any rights, title, or interest of ownership in or related Company’s logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Website, except as follows:
● Your computer may temporarily store copies of such materials incidental to your accessing and viewing those materials.
● You may store files that are automatically cached by your Web browser for display enhancement purposes.
You must not:
● Modify copies of any materials from Company.
● Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
● Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from an Insight Financial Service. If you print, copy, modify, or otherwise use or provide any other person with access to any part of the Company Platform in breach of the Terms of Service, your right to use the Company Platform will cease immediately and you must, at our option and direction, return or destroy any copies of the materials you have made. Any use of the Company Platform not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark and other laws.
Company respects the intellectual property of others and asks that users of our Website do the same. In connection with our Website, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of Users who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our Users is, through the use of our Website, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to us. Please let us know as soon as possible. Please contact the Company at email@example.com.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material facts (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs, and attorneys’ fees incurred by us in connection with the written notification and the allegation of copyright infringement.
6. Term and Termination.
(a) Term. The term of this Terms of Service commences upon Effective Date or the date User creates an account through Website, whichever is earlier. The Term continues until terminated by either Company or User.
(b) Termination by Company. Company reserves the right to, at any time and for any reason or no reason at all, terminate User’s account, including any access to Website or Company Platform.
(c) Termination by User. User can terminate use of Website or Company Platform by providing seven (7) days’ prior written notice to Company. If Business User provides a notice of termination while they are still under contract to utilize the services of a Contractor User, Business User must pay Company for the services of Contractor User until the expiration of the contract. If Business User has one or more outstanding invoices unpaid at the time of termination, termination shall not take effect until the invoices are paid in full.
(d) Provisions Surviving Termination. Some provisions survive termination including, but not limited to, the intellectual property provisions, ownership provisions, indemnity, and outstanding payment.
7. Confidentiality. In connection with this Terms of Service, a Party may disclose, or the other Party may learn of or have access to, certain confidential proprietary information owned by a Party or its affiliates, business partners, or clients (“Confidential Information”). Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to a Party or any of Party’s existing or contemplated business activities, business and marketing strategies, technology, developments, software, software designs, methods, trade secrets, and clients. Each Party may use the Confidential Information of the other Party only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Confidential Information also includes the terms of this Agreement and the Services.
8. Indemnification. User agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, manager, members, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to User’s use of the Website or Company Platform.
9. Limitation of Liability. Company is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
● your use of or your inability to use our Website or Company Platform;
● delays or disruptions in our Website or Company Platform;
● viruses or other malicious software obtained by accessing, or linking to, our Website or Company Platform;
● glitches, bugs, errors, or inaccuracies of any kind in our Website or Company Platform;
● damage to your hardware device from the use of the Website or Company Platform;
● the content, actions, or inactions of third parties’ use of the Website or Company Platform;
● a suspension or other action taken with respect to your account; and
● your reliance on the quality, accuracy, or reliability of job postings, profiles, ratings, recommendations, and feedback (including their content, order, and display), or other information on the Website or Company Platform.
10. Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED, THE COMPANY PLATFORM IS MADE AVAILABLE ON AN “AS IS” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY. COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
11. User Representations and Warranties.
(a) Authorization to Contract. User represents and warrants, if an individual, that he/she is of legal age to enter into a binding contract. If User is an entity, it represents that the person acting on its behalf has the authority to bind the entity to this Terms of Service.
(b) No Intellectual Property Rights Infringement. User represents and warrants that his/her/its use of Website or Company Platform does not infringe upon or violate the Intellectual Property Rights of any third party.
(c) Grant of User Generated Content. User represents and warrants that any content he/she/it grants Company a license to use all content owned by User posted on Website.
12. Dispute Resolution and Arbitration Agreement.
(a) Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, You and Company each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. Company will contact you at the email address you have provided to us; You can contact Company’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and 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 AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
(b) Agreement to Arbitrate. You and Company mutually agree that any Disputes will be settled by binding arbitration. If there is a dispute about whether this arbitration agreement can be enforced or applies to our Dispute, you and Company agree that the arbitrator will decide that issue.
(c) Exceptions to Arbitration Agreement. You and Company each agree that the following claims are exceptions to the arbitration agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
(d) Modification of AAA Rules – Attorney’s Fees and Costs. You and Company each agree that either party may be entitled to seek an award of attorney fees and expenses if they prevail in arbitration, to the extent provided under applicable law and the AAA rules.
(e) Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
(f) Jury Trial Waiver. You and Company acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
(g) No Class Actions or Representative Proceedings. You and Company acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Company both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
(h) Severability. 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.
13. Contingent Recruiting.
(a) In the event that Business User employs any Contractor User as an employee, Business User will pay Company a fee equal to the Contractor User’s first year salary under the Legal Client’s employment multiplied by the “Recruiting Fee Percentage.”
(b) The Recruiting Fee Percentage shall be equal to twenty percent (20.00%) if the Contractor User becomes an employee but, shall be shall not be less than Five Thousand Dollars ($5,000.00 USD).
(a) The parties acknowledge that Company uses substantial labor, effort, including, without limitation, onboarding, coding, analysis, and training to connect Business User with Contractor User(s). Except as provided in Section 13(a) and (b), above, Business User represents and warrants that it will not circumvent or attempt to circumvent Company or this Agreement, or in any way procure services from a Contractor User outside of the Company Platform, without Company’s prior written consent. Should Business User breach its warranty in this section, Business User shall pay Company a one-time fee equal to the greater of: 1) twenty-five percent (25.00%) of Contractor User’s estimated annual compensation from Business User; or 2) Ten Thousand ($10,000.00 USD). Upon payment of the aforementioned fees described in this Section, Company shall provide written consent for the Contractor User to provide legal services to Business User off of the Company Platform.
(b) At Company’s discretion, any Contractor Users engaging Business User such as to cause a violation of 14(a) above may have substantial restrictions placed on their account, which may meaningfully limit their usage of Company Platform.
(a) Notice. Any notice or other communication given hereunder shall be deemed sufficient if in writing and sent by either e-mail at firstname.lastname@example.org or by registered or certified mail, return receipt requested, overnight mail, or courier addressed to Company at the following address: 3000 Sacramento Street, Unit 8, San Francisco, CA 94115. Notices hereunder shall be deemed to have been given on the date of mailing, except notices of change of address, which shall be deemed to have been given when received.
(b) Modification. Company may revise and update these Terms of Service from time to time in its sole discretion and timing upon a notification on the Website or through email. All revisions, updates, or changes are effective immediately when posted to the Website and apply to all access to and use of the Company Platform thereafter. However, any changes to the dispute resolution provisions set forth in Governing Law and Venue below will not apply to any disputes for which the Parties have actual notice on, or prior to the date the revision, update, or change is posted on the Website. Your continued use of the Services following the posting of revised, updated, or changed Terms of Service means and shall constitute your acceptance and agreement to the revision(s), update(s), or change(s). User is expected to check and read the revised Terms of Service when Company provides notice through the Website or email, prior to continuing to access or utilize the Services so it is aware of any revision, update, or change, as they are binding on Client.
(c) Binding; Entire Agreement. This Terms of Service shall be binding upon and inure to the benefit of the Parties hereto and to their respective heirs, legal representatives, successors, and assigns.
(d) Governing Law; Venue. This Agreement and its validity, construction, and performance shall be governed by, construed under, and enforceable in all respects in accordance with the laws of the State of California, without reference to its conflicts of law principles. All Parties hereto submit to both the exclusive jurisdiction of the state and federal courts located in the City and County of Santa Clara, State of California.
(e) Waiver; Severability. The waiver by any Party of a breach of any provision of this Terms of Service will not operate or be construed as a waiver of any subsequent breach by any Party. If any term or provision of this Terms of Service or the application thereof to any person or circumstance shall, to the extent applicable, be invalid or unenforceable, the remainder of this Agreement and the application of such term of provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
(f) Limitation of Term of Action. User agrees that any cause of action arising from or related to the relationship with Company shall have a one (1) year statute of limitations. Otherwise, it is time-barred.
(g) Force Majeure. The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to acts or circumstances beyond the reasonable control of the Parties, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
(h) Assignment. User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Company’s prior written consent in the form of a written instrument signed by a duly authorized representative of Company. Company may freely assign this Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
(i) Sections Headings Non-Binding. All section and subsection headings are not legal binding or a part of this Terms of Service.