Terms of Service
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY.
This Agreement constitutes a legal agreement between you (“you”) and HeyBryan Inc. (“HeyBryan” or “us”). This Agreement governs your use of our services and platform that facilitates communications between Users offered through our website located at www.heybryan.com, as it may be modified, relocated and/or redirected from time to time (the “Site”), and the mobile applications offered by us (the “Apps”). Our services, platform, Site and Apps are collectively referred to as the “HeyBryan Platform”.
By accessing, using or registering with the HeyBryan Platform or any portions thereof, you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as we may publish from time to time in our sole discretion. Please read this Agreement carefully. If you do not agree to accept and be bound by this Agreement, you must not access, download, or use, or otherwise must immediately stop accessing, downloading, or using, the HeyBryan Platform. Any services provided by HeyBryan to you in connection with the HeyBryan Platform is conditional on acceptance of this Agreement.
By using the HeyBryan Platform, you represent and warrant that: (i) you are eighteen (18) years or older and at least the age of majority in the jurisdiction where you reside, and are otherwise legally 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. 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.
1. The HeyBryan Platform is Solely a Venue for Communications; Background Checks.
a. The HeyBryan Platform is Solely a Venue for Communications.
The HeyBryan Platform is a communications platform for enabling the connection between persons seeking to obtain services (“Clients”) and persons seeking to provide services (“Experts”). Clients and Experts together are referred to as “Users”. Those certain services requested by the Clients, which are to be completed by the Experts, are hereinafter referred to as “Expert Services”. HeyBryan does not itself provide Expert Services. The applicable Expert is solely responsible and liable to for all Expert Services. You agree that Hey Bryan is not a party to any agreement made between a Client and an Expert, and any such agreement will not, under any circumstance, create an employment or other service relationship between HeyBryan and the Client or HeyBryan and the Expert. FOR CERTAINTY, HEYBRYAN, THROUGH THE HEYBRYAN PLATFORM, PROVIDES A COMMUNICATION, TECHNOLOGY AND DIRECTORY PLATFORM ONLY AND DOES NOT ITSELF PROVIDE ANY EXPERT SERVICES, RETAIL OR MANUFACTURING SERVICES, OR OTHER HOME-RELATED SERVICES. HEYBRYAN DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY RELATING TO THE SERVICES PROVIDED BY ANY EXPERT AND/OR TO ANY USER. HEYBRYAN MAKES NO REPRESENTATIONS, WARRANTIES OR GAUARANTEES WITH RESPECT TO ANY EXPERT SERVICES, ANY USER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF GOOD AND WORKMANLIKE SERVICES, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES OF COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
b. Background Checks.
HeyBryan conducts basic background checks for Experts via third party background check services to the extent permitted by applicable law. Notwithstanding the foregoing, HeyBryan does not give any representation, warranty, or guarantee with respect to any Expert and the results of such background check. Each Client should exercise caution and common sense to protect its personal safety and property, and each HeyBryan Client engages each at its sole risk. BY USING THE HEYBRYAN PLATFORM, YOU AGREE TO RELEASE AND HOLD HEYBRYAN (AND ITS AFFILIATES, AND THEIR DIRECTORS, OFFICERS, EMPLOYEES AND CONTRACTORS) FREE FROM ANY LIABILITY, CLAIMS, DEMANDS OR DAMAGE THAT MIGHT ARISE IN CONNECTION WITH EXPERT SERVICES AND/OR ANY OTHER USERS’ ACTS OR OMMISSIONS. HEYBRYAN IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING EXPERTS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY PRODUCTS AND/OR SERVICES PROVIDED BY N EXPERT OR USER.
If you are an Expert, you will carry adequate general liability insurance and any other form of commercial liability insurance customarily carried by providers of services similar to the Expert Services, and maintain such policies in force for the duration of any Expert Service performed and in commercially reasonable amounts per accident or occurrence and in the annual aggregate.
2. Personal Information; Client Accounts.
a. Collection of your Personal Information.
b. Account, Password and Security.
You are the sole authorized user of the account registered to you as a Client of the HeyBryan Platform (the “Account”). You are responsible for maintaining the confidentiality of any username, password and credentials associated with your Account. You are solely and fully responsible for all activities that occur under your Account. Should you suspect any unauthorized use or access to your Account, contact us immediately.
c. Proof of Identity.
You will provide us with such documentation and evidence as we may request from time to time for the purpose of verifying your identity and authority with respect to your use of the HeyBryan Platform.
d. Text Messages and Phone Calls.
By providing your phone number in the course of using the HeyBryan Platform, you agree that HeyBryan (and its agents, service providers and/or representatives) may, to the extent permitted by applicable law, use such phone number for calls and text (SMS) messages in connection with the HeyBryan Platform. Carrier charges may apply to such calls and messages sent to you, and you are solely responsible for same. You may opt-out of receiving any of such calls and messages by replying with the word “STOP”. You acknowledge that opting out of text (SMS) messages may impact your ability to use the HeyBryan Platform. HeyBryan may mask your telephone number when you call or text (SMS) message other Clients through the HeyBryan Platform. HeyBryan may also mask the telephone number of any other Client that you are communicating with. The foregoing will not limit HeyBryan’s right to collect and use your phone number, call data, and message content for the purpose of providing the HeyBryan Platform.
HeyBryan may send you confirmation and other transactional emails regarding the HeyBryan Platform, such as Expert Service confirmations (the “Service Emails”). You may not unsubscribe to the Service Emails. HeyBryan may also send you emails that are primarily for the purpose of marketing products and services of HeyBryan and third-parties (“Promotional Emails”). You may unsubscribe from Promotional Emails at any time by clicking “unsubscribe” in any such email communications or by contacting us.
2.1 User Representations and Warranties.
You hereby warrant and represent that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of Users and that you will not record (whether video or audio or otherwise) any Expert Services or any interaction by or with any User and/or HeyBryan in connection with the HeyBryan Platform without the prior written consent of HeyBryan and/or the relevant User, as applicable. You further represent and warrant that you will fulfill the commitments you make to other Users, including paying/receiving payment through the HeyBryan Platform, performing the Expert Services agreed upon as between the Expert and Client, being present and/or available at the time you agree upon with your Expert or Client as the case may be, and only utilizing the third party payment processing system specified or approved by us to make or receive payment for services provided through the HeyBryan Platform. You also represent and warrant that you will act professionally and responsibly in your interactions with other Users. You further represent and warrant that when using or accessing the HeyBryan Platform, you will act in accordance with any applicable local, state, provincial, national, or international law or custom and in good faith.
You hereby warrant and represent that, other than as fully and promptly disclosed to HeyBryan as set forth below, you do not have any motivation, status, or interest which HeyBryan may reasonably wish to know about in connection with the HeyBryan Platform, including without limitation, if you are using or will or intend to use the HeyBryan Platform for any journalistic, investigative, or unlawful purpose. You hereby warrant and represent that you will promptly disclose to HeyBryan in writing any such motivation, status or interest, whether existing prior to registration or as arises during your use of the HeyBryan Platform.
Experts additionally represent and warrant that you will provide timely, high-quality services to your Clients, you will only offer and provide services for which you have the necessary skills and expertise, and you will provide the 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 Expert Services.
2.2 Contract between Clients and Experts
You acknowledge and agree that a legally binding contract (the “Service Agreement”) is formed when you agree on the terms of the Expert Services with another User. The terms of the Service Agreement include the terms set forth in this Section 2.2, the engagement terms proposed and accepted on the HeyBryan Platform, and any other contractual terms accepted by both the Expert and their Client to the extent such terms do not conflict with the terms in this Agreement, including this Section 2.2, and do not expand HeyBryan’s obligations or restrict HeyBryan’s rights under this Agreement. You agree that HeyBryan is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between HeyBryan and the Expert (or Assistants (as defined below)), nor will it create an employment relationship between the Client and the Expert (or Assistants (as defined below)). HeyBryan’s role is restricted solely to acting as a limited payment collection agent for the Expert to facilitate payment on behalf of the Expert through the HeyBryan Platform in respect of Expert Services they perform. In acting as the limited payment collection agent for particular Expert Services on the HeyBryan Platform, HeyBryan disclaims any other agency or authority to act on behalf of the Expert, and assumes no liability or responsibility for any acts or omissions of the Expert, either within or outside of the HeyBryan Platform.
Where approved in advance by the Client, the Expert is not obligated to personally perform the Expert Services. Before any Expert Services are performed by any assistants, helpers, subcontractors or other personnel engaged by the Expert (collectively “Assistants”), the Expert shall require any such individuals to become fully registered, oriented and verified Experts on the HeyBryan Platform. An Expert’s failure to comply with this provision by bringing an Assistant who is not a registered Expert could lead to removal from the HeyBryan Platform. The Expert 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 Expert and all persons engaged by the Expert in the performance of the Expert Services.
While using the HeyBryan Platform, Clients, in their sole discretion, determine whether they will be present or not when Expert Services are performed and/or completed. Clients who elect not to be present when Expert Services are performed and/or completed agree that if someone other than them (i.e. spouse, roommate, friend, etc.) is present when the Expert Services are performed, they are appointing that person as their agent (“Client’s Agent”) and the Expert may take and follow direction from the Client’s Agent as if such direction was given from the Client him or herself.
The Client shall pay their Expert directly for completed Expert Services through the HeyBryan Platform at the rates agreed to by the parties in the Service Agreement. Each User agrees to comply with the Service Agreement and this Agreement during the engagement, performance and completion of Expert Services. Both Users agree to notify HeyBryan of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via HeyBryan representatives for at least thirty (30) days before initiating any proceeding. HeyBryan reserves the right to suspend or terminate any account or Expert pending the resolution of any dispute.
Clients of the HeyBryan Platform contract for Expert Services directly with other Clients. HeyBryan is not a party to any contract for Expert Services. The HeyBryan Platform provides a transaction platform where Clients can connect and communicate with other Experts, request and schedule Expert Services, and make payments for Expert Services (“Payments”). Clients must pay in advance for the Expert Services they order through the HeyBryan Platform. The Client hereby authorizes HeyBryan to pre-authorize and/or charge the Client’s credit card the following amounts upon confirmation of a request for Expert Services by the Client (collectively, included as “Payments”): (1) the total amount agreed upon (which may include, without limitation, fees, expenses and taxes) for the applicable Expert Services by the applicable Client and Expert on the HeyBryan Platform; (2) the Trust and Support Fee (as defined in 3(e) below); and (3) any cancellation fees, damage deposits or other fees contemplated in this Agreement. We may use third party service providers to process Payments and any such Payments are governed by such third-party’s terms and conditions. For example, payment processing services may be provided by Stripe and to such extent are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to hold an Account, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of HeyBryan enabling payment processing services through Stripe, you agree to provide HeyBryan accurate and complete information about you and your business, and you authorize HeyBryan to share it and transaction information related to your use of the payment processing services provided by Stripe. Any Expert Services will be deemed completed if so indicated on the HeyBryan Platform, and HeyBryan will have the right to rely on any such indication. It is the Clients’ responsibility to update any scheduling changes and completion or failure of work on the HeyBryan Platform. All Payments for the Expert Services must be made through the HeyBryan Platform and Clients will not circumvent the HeyBryan Platform by contacting other Clients for Expert Services apart from the HeyBryan Platform. While we will use commercially reasonable efforts to ensure the security of all credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. Additionally, we disclaim any liability arising from the actions or omissions of any third-party processor. The Clients are responsible for complying with all applicable laws and any obligations tax obligations in the course of their engagements relating to Expert Services. You agree to indemnify and hold harmless HeyBryan (and its affiliates and their directors, officers, employees and contractors) from any and all claims, demands and liabilities relating to your tax obligations arising from any applicable Expert Services.
b. Job Rate.
The applicable fees and/or rates for an Expert Service (“Job Rate”) are determined by the applicable Expert and may vary and change from time to time at each Expert’s sole discretion. Experts are required to notify its Clients of any change in Job Rate with at least thirty (30) days’ prior written notice.
c. Recurrent Service.
When requesting certain Expert Services, Clients may have the option of choosing that the Expert Service be repeated on a regular basis (“Recurrent Service”). For example, a Client may choose that a cleaning service be performed every two weeks. When a Client orders a Recurrent Service, HeyBryan will automatically schedule that Recurrent Service to occur on future dates indefinitely at the frequency requested by Client. Clients may cancel the Recurrent Service at any time by visiting the HeyBryan Help Center at support.HeyBryan.com or through the HeyBryan Platform. Clients will be charged a cancellation fee in the amount provided at the time of order if any Expert Service is cancelled within twenty four hours of the date and time scheduled for such Expert Service.
d. Hold on Credit Card
We retain the right, in our sole discretion, to place a hold on the Client’s credit card for an ordered or completed Expert Service transaction. Seventy-two (72) hours after an Expert Service is completed, if there is no complaint by the Client, we will mark the Expert Service as closed. If the Client has agreed with the Expert to extend or reduce the hours in or to reschedule a requested Expert Service, the Client bears the responsibility for notifying HeyBryan. Clients must notify HeyBryan either by changing the date or hours of the requested Expert Service through the HeyBryan Platform or by visiting the HeyBryan Help Center at support.HeyBryan.com .
e. HeyBryan Trust and Support Fee.
HeyBryan may charge Client an additional “Trust and Support Fee” on each of the Expert Services to support the HeyBryan Platform. The Trust and Support Fee will be applied to each appointment of an Expert Service requested through the HeyBryan Platform (e.g., if you requested a Recurrent Service, a Trust and Support Fee may be assessed on each Recurrent Service appointment). The amount of the Trust and Support Fee may change from time to time in HeyBryan’s sole discretion.
4. Term and Termination; Cancellation of Expert Services; Survival.
This Agreement shall continue in full force and effect until such time as it is terminated by you or by us.
b. Termination by HeyBryan.
To the extent permitted by applicable law, we may terminate this Agreement or terminate or suspend your right to use the HeyBryan Platform at any time for any or no reason (including, without limitation, in the event that we believe that you have breached this Agreement or any policy posted on the HeyBryan Platform, or if we otherwise find that you have engaged in inappropriate and/or offensive behavior (collectively, “Prohibited Conduct”)) by providing you with written or email notice of such termination to the physical or email address you have provided us, and termination will be effective immediately upon such notice. Except in the event that we terminate or suspend your right to use the HeyBryan Platform due to any Prohibited Conduct, we will refund in full any payments for Expert Services that have not been performed or completed. If we terminate or suspend your Account for any reason, you are prohibited from registering and creating a new Account under your name or email address, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. When terminating your Account, HeyBryan may delete the Account and all the information in it. You have no ownership rights to your Account whatsoever.
c. Termination by You.
You may terminate this Agreement at any time by deactivating your Account at support.HeyBryan.com . If you attempt to terminate this Agreement while there are still outstanding Expert Services ordered under your password or account, this Agreement shall not terminate until such Expert Services have been performed or otherwise canceled in accordance with this Agreement.
d. Policy for Service Cancellation by Client.
Clients may cancel their scheduled Expert Service appointments through the HeyBryan Platform at any time, subject to the following (the “Cancellation Policy”): (1) If a Client cancels more than 24 hours before a scheduled Expert Service appointment, there is no cancellation fee; (2) If a Client cancels between 2-24 hours before a scheduled Expert Service appointment, the Client will be charged a $15 cancellation fee; and (3) If the Client cancels during the 2 hours before a scheduled Expert Service appointment, the Client will be charged the full Expert Service amount. This cancellation policy applies both for one-time Expert Service bookings and for recurring Expert Service appointments. An Expert Service appointment may be canceled through the HeyBryan Help Center at support.HeyBryan.com or through the HeyBryan Platform.
e. Policy for Service Cancellation by Expert.
When an Expert cancels a scheduled Expert Service appointment, the HeyBryan Platform will notify the applicable Client and make such Expert Service request available for another Expert to select. HeyBryan cannot guarantee that a canceled Expert Service appointment will be selected by another Expert or that the Expert Service request will be completed. If an Expert Service appointment is canceled by an Expert, Client will not be charged for that Expert Service appointment. Experts who cancel a scheduled Expert Service appointment may incur fees.
All provisions that should by their nature survive the expiration or termination of this Agreement, including without limitation, Sections 2, 3, 4, 9, 10, and 15- 20, shall so survive. For certainty, all disclaimers and liability limitations in favour of HeyBryan will survive termination of this Agreement.
5. Links to and Plug-Ins from Other Web Sites or Media.
6. Submission Areas.
The HeyBryan Platform may contain blogs, message boards, applications, opportunities to provide reviews, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Clients to communicate with other Clients and with HeyBryan (collectively, “Submission Areas”). Some areas in the Submission Areas within the HeyBryan Platform will be public, and HeyBryan will not be responsible for any information or materials posted in such public areas. HeyBryan may, in its discretion, publicly post submissions you submit to a non-public area of the HeyBryan Platform. You may only use such Submission Areas to send and receive messages and material that are relevant and proper to the applicable forum and that comply with this Agreement. “Your Information” is defined as any information and materials you provide to us or other Clients in connection with your registration for and use of the HeyBryan Platform, including without limitation, information and materials that are posted or transmitted for use in Submission Areas. You are solely responsible for Your Information, and we are merely a passive conduit for your online distribution and publication of Your Information. You hereby represent and warrant that Your Information: (a) will comply at all times with this Agreement, including but not limited to Section 7 (Rules for Use of the HeyBryan Platform) below, and with Section 2 (Personal Information; Client Accounts) above; and (b) will not create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers (ISPs), customers, or other partners or suppliers. You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all of Your Information that is posted to Submission Areas from or through your account on the HeyBryan Platform, including but not limited to all images, videos, musical works and text included in such postings. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the HeyBryan Platform. We reserve the right, but are not obligated, to monitor and remove postings from Submission Areas in our sole discretion.
7. Rules for Use of the HeyBryan Platform.
During the term of this Agreement, Clients may use the HeyBryan Platform for personal use only (or for the use of a person, including a company or other organization that you validly represent). Clients may use the HeyBryan Platform to book Expert Services solely with respect to a location where the Client is legally authorized to have Expert Services performed. Clients agree that an order for Expert Services is an offer, which is only accepted when the Client receives a confirmation of the order from an Expert. Clients agree to treat Experts courteously and lawfully, to provide a safe and appropriate working environment for them that is in compliance with all applicable laws and regulations, and to provide reasonable co-operation to Experts to enable them to supply the applicable Expert Services. Clients agree to communicate any complaints to us and not to the Experts directly. Clients agree to comply with our complaint process and other policies designated on the HeyBryan Platform. Clients acknowledge that their preferred Expert may be unavailable from time to time, e.g. due to illness, vacation or leaving the HeyBryan Platform. Experts agree to provide Expert Services in accordance with all applicable laws and regulations. You shall NOT use the HeyBryan Platform (including but not limited to any Submission Areas) to do any of the following:
a. Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
b. Upload files that contain software or other material that violates the intellectual property rights or rights of privacy or publicity of any third party.
c. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including but not limited to our staff and other Clients.
d. Take any action that is in violation of local, state, provincial, national, foreign or international law.
e. Publish, post, upload, distribute or disseminate any profane, defamatory, false, misleading, fraudulent, threatening or unlawful topics, names, materials or information, or any materials, information or content that involve the sale of counterfeit or stolen items.
f. Advertise or offer to sell any goods or services for any commercial purpose or solicit employment or contract work which is not relevant to services offered through the HeyBryan Platform. You may not solicit, advertise for, or contact in any form Clients for employment, contracting, or any other purpose not related to Expert Services facilitated through the HeyBryan Platform without express written permission from us.
g. Collect or harvest usernames and/or email addresses or any other information of Clients by electronic or other means without our express prior written consent.
h. Conduct, send or forward to Clients any unsolicited e-mail or other electronic communications, including promotions, advertising of products or services, surveys, contests, pyramid schemes, or chain letters.
i. Impersonate another person or allow any other person or entity to use your identification to post or view comments or otherwise use your account.
j. Download any file posted by another Client that you know, or reasonably should know, cannot be legally distributed through the HeyBryan Platform, or post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
k. Restrict or inhibit any other Client from using and enjoying the HeyBryan Platform.
l. Imply or state that any statements you make are endorsed by us, without our prior written consent.
m. Reverse engineer, disassemble, decompile, translate, modify, adapt, license, sublicense, alter, copy, distribute, hack or interfere with the HeyBryan Platform, its servers or any connected networks, use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the HeyBryan Platform in any manner, or attempt to do any of the foregoing.
n. Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
o. Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
p. Upload content that provides materials or access to materials that are obscene, adult or sexual or that exploit anyone, and in particular people under the age of majority, in an abusive, violent or sexual manner.
q. Register to use the HeyBryan Platform after your Account has been suspended or terminated.
r. Mirror or archive any part of the HeyBryan Platform or any content or material contained on the HeyBryan Platform without HeyBryan’s written permission.
s. Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting or providing false or misleading representations in the sender information, subject line, locator, or content of any electronic message.
t. Alter transmission data without HeyBryan’s consent.
8. Employment and Withholding.
Clients do not have authority to enter into contracts or commitments, whether written or oral, implied or express, on behalf of HeyBryan. You acknowledge that we do not supervise, direct, or control an Expert’s work or Expert Services performed in any manner. Experts may wear a HeyBryan badge or other HeyBryan insignia purely for the purpose of identifying themselves as an Expert contacted through the HeyBryan Platform. HeyBryan is not an employment service and does not serve as an employer of any Expert. As such, we will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, commercial liability, Canada Pension Plan or payroll withholding tax in connection with your use of Expert Services. Without limiting any other rights and protections granted to HeyBryan in this Agreement, you understand and agree that if we are found to be liable for any tax or withholding tax in connection with your use of Expert Services, then you will immediately reimburse and pay to us an equivalent amount, including any interest or penalties thereon.
9. Special Promotions; Gift Cards and Vouchers.
a. Changes to Promotions.
We may from time to time provide certain discounts and promotions to Clients. All such discounts and promotions will be offered at our sole discretion and according to the terms and conditions determined by HeyBryan from time to time and in each instance. All such discounts and promotions may be modified and terminated by us at any time in our sole discretion, and without notice to you.
b. Referral Credits.
In the event that you are given a code through which you may refer a friend to the HeyBryan Platform in exchange for a referral credit (“Referral Credits”), you shall not use any online marketing or advertising to promote such code or to artificially increase the amount of Referral Credits awarded. By way of example, you may not post, or cause, request or permit a third party to post any such code on a coupon website, nor use any paid search marketing, online advertising, forum posting, newsgroup posting or bulk email to disseminate such code. You may only share such code with your personal friends and acquaintances for legitimate, direct referral purposes, as determined by us in our sole discretion. HeyBryan referral credits are redeemable only for Expert Services. HeyBryan Referral Credits have no cash value, are non-transferrable, and are not redeemable for cash. Referral Credits will expire, and any rights you have in such Referral Credits will cease, immediately upon the earlier of (determined in HeyBryan’s sole discretion): (1) the date that is twelve (12) months from your last provision or consumption of Expert Services; and (2) the suspension, termination, or deactivation of your Account.
Subject to the terms and conditions set by HeyBryan from time to time in its sole discretion, HeyBryan vouchers or promotional codes for special offers or discounts (“Vouchers”) may be available and can be used to pay in part or in full for Expert Services.
d. Gift Cards.
HeyBryan may offer Users the opportunity to purchase gift cards that can be redeemed for payment for Expert Services (“Gift Cards”). Gift Cards have no cash value, are non-transferrable and are not redeemable for cash unless otherwise required by law, but can only be used to pay in part or in full for Expert Services.
10. Intellectual Property Rights.
The HeyBryan Platform, and the information, data, content and materials which it contains (collectively, the “HeyBryan Materials”), are the property of HeyBryan and/or its affiliates and licensors, excluding Your Information. The HeyBryan Materials are protected from unauthorized copying and dissemination by copyright law, trademark law, international conventions, and other intellectual property laws. HeyBryan and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the HeyBryan Materials. Any use of HeyBryan Materials, other than as expressly permitted herein, is prohibited without the prior written permission of HeyBryan and/or the relevant right holder. The service marks and trademarks of HeyBryan, including without limitation HeyBryan.com and the HeyBryan logo are service marks owned by HeyBryan or its licensors. Any other trademarks, service marks, logos and/or trade names appearing on the HeyBryan Platform are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the HeyBryan Platform without the express prior written consent of the owner.
11. Copyright Complaints and Copyright Agent.
HeyBryan respects the intellectual property of others, and expects Clients to do the same. HeyBryan will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided on or in connection with the HeyBryan Platform infringe upon that person’s or entity’s copyright or other intellectual property right (such person or entity, a “Complainant”) and sends to HeyBryan a properly submitted copyright notice as indicated below, HeyBryan will investigate, and if it determines, in its discretion, that the material is infringing, HeyBryan will remove the content and may terminate the access of the Client who posted such content to the HeyBryan Platform in the case of repeat infringers. All notices claiming an infringement of copyright rights must contain the following:
(i) Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the Complainant’s ownership of the work, should be included.
(ii) A statement specifically identifying the location of the infringing material, with enough detail that HeyBryan may find it on the HeyBryan Platform. Please note: it is not sufficient to merely provide a top level URL.
(iii) The complete name, address, telephone number and e-mail address of Complainant.
(iv) A statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law.
(v) A statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed;
(vi) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed.
12. The App / Mobile Devices
a. The HeyBryan Platform may allow you to access our services, download our Apps, upload content to the HeyBryan Platform, receive messages on your mobile device and engage with the Apps in any other manner supported from time to time (collectively “Mobile Features”). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data, and other fees to use certain Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
b. You acknowledge that your use of the Apps is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS or Android).
c. HeyBryan is not liable if you do not have a compatible mobile device or if you download the wrong version of an App for your mobile device. HeyBryan reserves the right to terminate the use of the Apps or any other aspect of the HeyBryan Platform should you be using the Apps or the HeyBryan Platform with an incompatible or unauthorized device.
d. App Store Sourced Application.
(i) With respect to Apps accessed through or downloaded from the Apple App Store (“App Store Sourced Application”), you will use the App Store Sourced Application only: (A) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (B) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. HeyBryan reserves all rights in and to the Apps not expressly granted to you under this Agreement.
(ii) You acknowledge and agree that (A) this Agreement is valid between you and HeyBryan only, and, that Apple is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (B) HeyBryan, not Apple, is solely responsible for the App Store Sourced Application and the HeyBryan Platform Content.
(iii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application.
(iv) To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the App Store Sourced Application.
(v) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and HeyBryan, HeyBryan and not Apple is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (A) product liability claims, (B) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation. None of the foregoing will in any way limit the liability disclaimers in favour of HeyBryan under this Agreement.
(vi) Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claims.
(vii) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement for App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement for App Store Sourced Applications against you as a third-party beneficiary thereof.
(viii) Without limiting any provisions of this Agreement, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
13. Modifications to the HeyBryan Platform.
We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, any part or whole of the HeyBryan Platform and/or any part or whole of the HeyBryan Material, with or without notice. We will not be liable to any party for any modification or discontinuance thereof.
14. Disclaimer of Warranties; Limitation on Liability.
a. USE OF THE HEYBRYAN PLATFORM IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE HEYBRYAN PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER HEYBRYAN NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE HEYBRYAN PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO ANY CONTENT AVAILABLE IN OR THROUGH THE HEYBRYAN PLATFORM; NOR DO THEY MAKE ANY WARRANTY AS TO ANY PROFESSIONAL’S REGISTRATION, PROFESSIONAL ACCREDITATION OR LICENSE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE HEYBRYAN PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, QUALITY, SUITABILITY, SAFETY, COMPLETENESS OR CONTENT OF THE SERVICES, PROFESSIONAL SERVICES, OR ANY PRODUCTS, CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE HEYBRYAN PLATFORM OR THIS AGREEMENT. NEITHER HEYBRYAN NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE HEYBRYAN PLATFORM (INCLUDING BUT NOT LIMITED TO THE CONDUCT OF ANY USERS OR EXPERTS). NEITHER HEYBRYAN NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE HEYBRYAN PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. HEYBRYAN AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
b. NO LIABILITY. YOU HEREBY RELEASE AND HOLD HARMLESS HEYBRYAN, ITS AFFILIATES, ITS LICENSORS, AND ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, “MEMBERS”) OF ANY AND ALL DAMAGES, EXPENSES, LIABILITIES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE HEYBRYAN PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY OTHER USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND LOSS OR DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY OTHER USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY HEYBRYAN OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL HEYBRYAN OR MEMBERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR YOUR USE OF OR INABILITY TO USE THE HEYBRYAN PLATFORM, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. HEYBRYAN AND MEMBERS DO NOT ACCEPT ANY LIABILITY IN CONNECTION WITH ANY EXPERT SERVICES. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT HEYBRYAN OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO HEYBRYAN DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
c. RELEASE. HEYBRYAN AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE HEYBRYAN PLATFORM. THE HEYBRYAN PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. TO THE EXTENT THAT THE HEYBRYAN PLATFORM CONNECTS A USER TO A THIRD PARTY PROVIDER FOR THE PURPOSES OF PROVIDING MERCHANDISE HEREUNDER, HEYBRYAN WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE HEYBRYAN FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY SERVICE PROVIDER. BECAUSE HEYBRYAN IS NOT A PARTY TO ANY EXPERT SERVICES, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE HEYBRYAN AND MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) 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.
d. ADDITIONAL DISCLAIMER. THE QUALITY OF THE EXPERT SERVICES IS ENTIRELY THE RESPONSIBILITY OF THE EXPERT WHO ULTIMATELY PROVIDES SUCH PROFESSIONAL SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING THE HEYBRYAN PLATFORM, YOU MAY BE EXPOSED TO PROFESSIONAL SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOUR USE THE HEYBRYAN PLATFORM, AND SUCH PROFESSIONAL SERVICES, IS AT YOUR OWN RISK. HEYBRYAN DOES NOT ITSELF ENDORSE OR CERTIFY ANY USER. IF ANY USER IS IDENTIFIED AS “CERTIFIED” ON THE HEYBRYAN PLATFORM (OR ANY OTHER SIMILAR TERMINOLOGY), SUCH LABEL SHALL NOT BE CONSTRUED AS AN ENDORSEMENT, WARRANTY OR LEGAL CERTIFICATION OF ANY KIND WHATSOEVER, BUT ONLY AS A MARKETING LABEL DETERMINED BY USER REVIEWS AND FEEDBACK.
BY USING THE HEYBRYAN PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE HEYBRYAN PLATFORM.
YOU ACCEPT THAT, AS A CORPORATION, HEYBRYAN HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST HEYBRYAN’S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE HEYBRYAN’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS HEYBRYAN.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
You hereby agree to indemnify, defend, and hold harmless HeyBryan, its licensors, and each such party’s directors, officers, parent organizations, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys’ fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use the HeyBryan Platform and/or any Expert Service, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including but not limited to other Clients), and (v) Your Information and content that you submit or transmit through the HeyBryan Platform. HeyBryan reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of HeyBryan.
16. Class Action Waiver.
YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE TO WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY, OR COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST HEYBRYAN RELATED TO THE HEYBRYAN PLATFORM AND/OR THIS TERMS OF SERVICE.
17. Governing Law; Jurisdiction.
This Agreement will be governed by and interpreted in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of British Columbia with respect to any dispute or claim arising out of or in connection with the Terms of Service (each, a “Dispute” and together, “Disputes”).
This Agreement may not be assigned or transferred by you without our prior written approval of HeyBryan. We may assign or transfer this Agreement without notice and without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement shall inure to the benefit of permitted successors and assigns.
19. General Provisions.
No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by this Agreement or your use of the HeyBryan Platform. A failure by us to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and HeyBryan with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. You agree that there shall be no third party beneficiaries to this Agreement. You agree that regardless of any statute or law to the contrary, any Dispute, claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such Dispute, claim or cause of action arose or be forever barred. All notices provided by a party in connection with this Agreement will be deemed given as of the business day after they are confirmed as delivered either by email, messenger, delivery service, or in the mail, postage prepaid, certified or registered, and addressed as follows: Your address for such notices is your email address and/or physical address that you have provided to HeyBryan; HeyBryan’s address for such notices is: legal@HeyBryan.com and/or by mail to HeyBryan Inc., Attn: Legal, 200-1238 Homer St, Vancouver BC, V6B 2Y7 The headings in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This Agreement shall be interpreted as if jointly drafted by the parties. HeyBryan shall have no liability to you for any failure or delay in performing its obligations in this Agreement where such failure or delay is caused by an event or circumstance beyond HeyBryan’s reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, failure of Experts to perform, flood, fire, explosion, acts of terrorism or accident.
19.1 Independent Contractors.
EXPERTS ARE INDEPENDENT CONTRACTORS OF CLIENTS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF HEYBRYAN. HEYBRYAN DOES NOT PERFORM EXPERT SERVICES AND DOES NOT EMPLOYE INDIVIDUALS TO PERFORM EXPERT SERVICES.
20. Changes to this Agreement.
We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must immediately deactivate your Account. Your continued use of the HeyBryan Platform following any amendment to this Agreement constitutes your complete acceptance of any and all such changes.
These Terms shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
22. Contact Information.
If you have any questions regarding this Agreement, please contact us at support@HeyBryan.com or by mail at the below address:
1900 – 1040 West Georgia Street
Vancouver, BC, Canada V6E 4H3
Last updated: September 26, 2018