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USER AGREEMENT – TERMS AND CONDITIONS
Introduction. The terms and conditions stated herein and all policies posted herewith or on the Wischen, LLC (“Wischen”) website constitute a legal agreement between you and Wischen (collectively the “Agreement”). Your downloading, installing or use of the Wischen Application (the “Application”), or your request for or use or receipt of the Service (as defined below) whether through the Application or the Wischen website (the “Website”), constitutes your agreement to be bound by the terms and conditions set forth below and any future amendments and additions to this Agreement as may be published from time to time at http://www.wischen.com/terms. You represent and warrant to Wischen that you have the legal capacity to enter into this Agreement and that you are at least eighteen years of age.
Wischen reserves the right to modify the terms and conditions of this Agreement. Modifications will be effective upon posting. It is your responsibility to regularly review this Agreement. Your use of the Service and the Application after the posting of any modification constitutes your acceptance of such modification.
The Application and Website are designed to permit you to request residential cleaning services as described on the Wischen website (the “Service”). Wischen itself does not provide cleaning services. Cleaning services will be provided by third-party independent contractors (each a “Service Provider”) and will be scheduled through the Application or the Website. Wischen has no responsibility or liability for cleaning services provided by a Service Provider and Wischen has no control over the manner in which the cleaning services are performed.
Wischen is not responsible for any difficulties you may experience in the downloading or use of the Application or the Website. Wischen reserves the right to limit, suspend or terminate this Agreement and your account should you fail to pay required fees, or should you use the Application, Service or Website with an incompatible or unauthorized device or in any manner that violates the terms of the Agreement, creates possible legal liabilities, raises security risks, or infringes on the rights of third parties.
Your use of the Application, Website or Service constitutes your agreement that: (a) you will abide by all applicable laws while using the Application, Website or Service, and that you will abide by all of the terms and conditions of this Agreement; (b) you will only use the Application, Website or Service for lawful purposes; (c) you will not use the Application or Website for any manner inconsistent with the ordering of the Service or any other purpose authorized by Wischen, (d) you will not use the Application or Website for sending or storing any unlawful material or for fraudulent purposes; (e) you will not use the Application or Website to cause nuisance, annoyance or inconvenience; (f) you will not impair the proper working of the Wischen network; (g) you will not attempt to harm the Application or Website in any manner; (h) you will not copy or distribute the Application or Website or the content thereof without prior written consent of Wischen; (i) you will use the Service for your personal use and not sell the same to a third party; (j) you will keep secure and confidential your account password; (k) you will provide reasonable proof of identity as requested by Wischen; and (l) you acknowledge that standard messaging rates may apply to your use of the Application.
Wischen may, in its discretion, permit users of the Application or Website to post, upload, publish, submit or transmit user information (“User Content”). By making available to Wischen User Content, you hereby grant to Wischen a worldwide, perpetual, irrevocable, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, transmit, stream, broadcast and exploit User Content only on, through or by means of the Application and/or Website. Wischen does not claim ownership rights in User Content and nothing herein restricts your right to use and exploit User Content. You acknowledge and agree that you are solely responsible for the User Content you provide, that you are the sole owner of all User Content or that you have the legal right to the User Content, and that your use and posting of User Content is not in violation of any applicable law.
Application License. Subject to your compliance with the terms of this Agreement, Wischen grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile devise or computer that you own or control, and to run the Application solely for your personal use. You have no right to sublicense the license rights granted herein.
Accessing and Downloading the Application from the Apple iOS App Store, Google Play, the Windows Store, or Other Similar Smartphone or Tablet Software Marketplaces. The following applies to any mobile device software store sourced Application.
Fees and Payment Terms. Fees charged by Wischen related to the Service are due immediately and are non-refundable except as otherwise stated on the Wischen Website. The fee for the Application, if any, and the Service will be set by Wischen and may be modified from time to time by Wischen. Wischen may, in its sole discretion, offer different features and rates to customers.
In the event you cancel a Service upon less than two (2) hours notice prior to the scheduled time of the Service, you will be and you consent that a cancellation fee of Forty Dollars ($40.00) will be charged to our account.
SMS Messaging. If you select this feature and have SMS service from a carrier, you can request cleaning services via SMS and receive notifications if you request cleaning services through the Application. Message and data rates may apply. You will only receive messages from Wischen or the third-party cleaner if you make a request for cleaning services. If you change your mobile phone provider or number, the service may be deactivated and you will need to re-enroll in the notification service. Wischen reserves the right to cancel the notification service at any time. You may terminate the notification service by notice to Wischen.
Intellectual Property Ownership. Wischen (and its licensors, where applicable) owns all right, title and interest, including intellectual property rights, in and to the Application and the Website, as well as any enhancements made thereto as a result of any suggests, comments or feedback from you. This Agreement does not constitute a sale or conveyance to you of any ownership rights in the Application or the Website, or any intellectual property rights owned by Wischen. The name “Wischen”, the Wischen logo, and the product names associated with the Application and the Service are trademarks of Wischen, and no right or license is granted to you to use them.
Third Party Interactions. By use of the Application and the Website, you agree to receive marketing and advertising that appears on the Application or Website. While using the Application or the Website, you may correspond with or purchase services from third-party advertisers and sponsors. Any such activity is between you and such third-party. Wischen has no liability, obligation or responsibility for such interaction between you and the third-party. Wischen does not endorse any internet sites linked to the Application or Website and Wischen disclaims any liability with respect to interactions between you and such third-parties or any product or service you purchaser from a third-party. Wischen may compile and release information regarding you and your use of the Application and the Website on an anonymous basis as part of a customer profile or similar report or analysis.
Indemnification. You agree to defend, indemnify and hold harmless Wischen, its related entities, Members, officers, directors, employees, agents and licensors, from and against any and all claims, suits, allegations, judgments, actions, causes of action, liabilities, losses, damages, obligations, injuries to person or property, demands, proceedings, penalties, assessments, costs and expenses, including reasonable attorney’s fees court costs and expenses (individually a “Claim” and collectively “Claims”) arising out of or relating to your: (a) violation or breach of the terms of this Agreement; (b) misuse of the Application or the Website; (c) violation of any applicable law, statute or regulation; or (d) violation of any rights of third parties, including the rights of Service Providers arranged through the Application or the Website.
Disclaimer of Warranties. The Application and the Website are provided by Wischen on an “AS IS”, “WITH ALL FAULTS”, and “AS AVAILABLE” basis. To the fullest extent permitted by law, Wischen disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Wischen makes no representations, warranties or guaranties of any kind, express or implied, as to the operation of the Application or the Website, or the information, content, materials or services included on or otherwise made available to you through the Application or the Website, or as to the reliability, suitability, quality, availability, accuracy or completeness of the Application or the Website. Wischen does not represent or warrant that (a) the use of the Application or Website will be secure, timely, uninterrupted or error-free or operate in conjunction with any hardware, application, system or data, (b) errors or defects in the Application or Website will be corrected; (c) the servers that make the Application and Website available are free of viruses or other harmful components; (d) the Application or Website will meet your requirements or expectations; (e) stored data will be accurate or reliable, (f) the quality and timeliness of any Service purchased or obtained by you through the Application or Website, or (g) the quality of the Service will meet your requirements or expectations. You expressly agree that your use of the Application, the Website and the Service is at your sole risk.
Wischen does not warrant that the Application or Website, information, content, materials, software or other services included on or otherwise made available to you through the Application or Website, Wischen’s servers, or electronic communications sent to you from Wischen are free of viruses or other harmful components. Wischen is not liable for any damages of any kind arising from the use of the Application or Website, or from any information, content, materials, or other services included on or otherwise made available to you through the Application or Website or Wischen’s servers, or electronic communications sent to you from Wischen, including, but not limited to, direct, indirect, incidental, punitive and consequential damages. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply to you, and you may have additional rights.
You acknowledge and agree that the entire risk arising out of your use of the Application, the Website and the Service remains solely with you, to the maximum extent permitted by law.
Communications Delays. Wischen’s Application and Website may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Wischen is not liable for any delays, delivery failures or other damage resulting from such problems.
Release. In no event shall Wischen and/or its licensors be liable to anyone for and you release Wischen from any: (a) direct, indirect, punitive, special, exemplary, incidental, consequential or other damages of any type (including, but not limited to, personal injury, property damage, loss of data, loss of revenue, loss of profits) (individually and collectively “Damages”) incurred by you arising out of the Application or Website including, but not limited to, limited use or inability to use the Application or Website, or relating to any advertising appearing on the Application or Website; (b) Damages arising out of the use of the Application or the Website; (c) Damages caused by any Service Provider; or (d) Damages resulting from anyone hacking into your account with Wischen. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims that you know or suspect to exist in your favor at the time of agreeing to this release. Wischen requires that Service Providers undergo a background investigation by an independent investigation service. Wischen does not perform its own investigation with respect to a Service Provider nor does Wischen assess the suitability, legality or ability of any Service Provider. The quality of the Service is entirely the responsibility and under the control of the Service Provider. You expressly waive and release Wischen from any and all Claims arising from or in any way related to the Service Provider, the Service and the acts and omissions of the Service Provider. Wischen will not be a party to any disputes, negotiations or actions between you and the Service Provider.
Notice. All notices and other communications to you by Wischen that are required or may be given under this Agreement must be in writing and shall be deemed to have been duly given: when received if personally delivered by courier or recognized overnight delivery service (e.g., Federal Express); when transmitted if sent via email to your email address in Wischen’s account information; and two (2) business days after being mailed by certified or registered mail, return receipt requested to your address in Wischen’s account information. Refusal to accept service of a notice shall constitute delivery of the notice. All notices and other communications by you to Wischen that are required or may be given under this Agreement must be in writing and shall be deemed to have been duly given: when received if personally delivered by courier or recognized overnight delivery service (e.g., Federal Express); and two (2) business days after being mailed by certified or registered mail, return receipt requested to: Wischen, LLC, 1115 West Grand Ave., Chicago, Illinois 60642.
Assignment. You may not assign this Agreement without the prior written consent of Wischen and any assignment in violation of this Agreement shall be null and void. Wischen may assign this Agreement without your consent.
Dispute Resolution. Any dispute or Claim arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, or to your use of the Application or the Website, will be resolved by binding arbitration, rather than in court, except that each party retains the right to bring an action in small claims court, if applicable, and Wischen retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of copyrights, trademarks, trade secrets, patents or other intellectual property rights. Small claims court actions must be instituted in Cook County, Illinois. You acknowledge and agree that you are waiving a trial by jury. You acknowledge and agree that any dispute resolution proceeding will be conducted only on an individual basis and not in a class, consolidated or representative action. This dispute resolution provision will survive the termination of this Agreement. Except to the extent otherwise provided in the Federal Arbitration Act, this Agreement shall be exclusively governed by and construed in accordance with the laws of the State of Illinois without regarding to its conflicts of law rules.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Based Disputes, except as modified by this Dispute Resolution section. (The AAA’s rules are available at hhtp://www.adr.org/arb_med) or by calling the AAA at 1-800-778-7879. The Federal Arbitration Act will govern the interpretation and enforcement of this section. The party who seeks to initiate an arbitration must provide the other party a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days after delivery of a Demand for Arbitration, the AAA will appoint an arbitrator in accordance with the AAA Rules. Unless agreed otherwise, the arbitration will be conducted in Cook County Illinois. If you and Wischen agree, the arbitration may be conducted by telephone, based upon written submissions. If your claim does not exceed $10,000, the arbitration will be conducted solely on the basis of documents submitted by you and Wischen unless either party requests a hearing or the arbitrator determines that a hearing is necessary. If the amount of the claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct or permit a reasonable exchange of information and documents by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The award 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 of competent jurisdiction. The arbitrator’s award must be consistent with the limitations of liability provisions above as to the types and amounts of damages. The arbitrator may award declaratory or injunctive relief to the extent necessary to provide relief warranted by the claimant’s claim. The prevailing party in any arbitration or legal proceeding shall be entitled to recover its reasonable attorney’s fees. Each party is responsible to pay its AAA filing, administrative and arbitrator fees as set forth in the AAA Rules. If Wischen changes the “Dispute Resolution” provisions of the Agreement after you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by notice to Wischen within thirty (30) days after such change went into effect (as indicated in the “Last Updated Date” above). By rejecting any change, you agree to arbitrate any dispute or Claim in accordance with the dispute resolution provisions in effect as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
General. Neither this Agreement nor your use of the Application or the Website creates a joint venture, partnership, employment or agency relationship between you and Wischen. If any provision of this Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions of this Agreement. No waiver of any obligation or restriction of this Agreement or consent to any departure from the terms hereof shall be effective unless the same shall be in writing and signed by Wischen. No failure by Wischen to exercise, nor any delay in exercising, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy by Wischen affect or impair Wischen's right to require observance, performance or satisfaction of that term or condition as it applies on a subsequent occasion or of any other term or condition. All obligations hereunder which by their sense apply to time periods after the termination of this Agreement, as well as all indemnities, warranties and representations survive the termination of this Agreement. This Agreement constitutes the entire agreement between you and Wischen with respect to the subject matter hereof and supersedes all previous or contemporaneous negotiations, discussions or agreements regarding the subject matter hereof.