This Terms of Service Agreement (these “Terms” or this “Agreement”) governs Your use of the software-as-a-service platform for recruiting, vetting, matching and hiring high quality talent and companies in need thereof (the “Services”) provided by Assemble Technologies Inc., doing business as FlexTal (“FlexTal”, also referred to herein as “We” or “Us”) and Your use of the FlexTal websites, located at www.flextal.com and any other websites of FlexTal (the “Sites”). By using the Services, You agree to these Terms. As used in these Terms, “You” means the person or organization for which the Services are used and to which the Services are provided. Each and every person using the Services on “Your” behalf represents that he or she has the authority to do so. These Terms may be modified by FlexTal from time to time, and You should check regularly for any updates. You agree that any modifications to the Terms shall be immediately effective upon posting by FlexTal, and Your continued use of the Services shall constitute Your acceptance of the modified Terms. Aspects of the Services, including specifications for projects, hiring terms, pricing, employment arrangements and other features may be subject to additional guidelines, terms, or rules, which will be set forth in a quote or order form between the parties and/or posted on the Sites in connection with such additional aspects of the Services (“Supplemental Terms”). If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the aspects of the Services that they address.

PLEASE READ THESE TERMS OF USE CAREFULLY. IF YOU DO NOT AGREE TO BE BOUND BY EACH AND EVERY PROVISION OF THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES OR THE WEBSITES. YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD.

PLEASE BE AWARE THAT THE DISPUTE RESOLUTION SECTION OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND FLEXTAL HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL. 

1. Services. The Services include: (a) the Sites; (b) the FlexTal software-as-a-service platform that provides recruiting, vetting, matching, and hiring services for both employers looking to hire talent (“Employers”) and employment seekers, including, but not limited to contractors, contract-to-hire, permanent placements, freelancers and executives (“Talent”); (c) managing the invoicing and payments for the work completed by the Talent, including but not limited to the projects contractually agreed upon between Employers and Talent; (d) all software, applications, data, reports, text, images, sounds, video, and content made available through any of the foregoing; and (e) any new features added to or augmenting the Services.

2. Your Use of the Services. 

2.1 Account. You will be assigned a unique user identification name and password (“Account”) in connection with Your access to and use of the Services. If you are accessing the Services as Talent, you will be required to complete an application prior to creating your Account. We may refuse any application in our sole discretion.  You will be responsible for any use of Your Account by any individual (each, a “User”) to access the Services. FlexTal reserves the right to terminate any Account that FlexTal reasonably determines may have been used improperly or by an unauthorized third party. You agree to immediately notify FlexTal of any unauthorized use of Your Account or any other breach of security. You also agree to log out from Your Account at the end of each session. You are responsible for verifying that all Users who access content that is owned, licensed or lawfully obtained by You (“Your Content”) or access or use the Services under Your Account are eligible to gain access to Your Content. 

2.2 Registration. To create Your Account, You will go through a registration process. You agree to: (i) provide and maintain true, accurate, current, and complete information about yourself (“Registration Data”) when You register for the Services; (ii) update the Registration Data to keep it true, accurate, current and complete; and (iii) only open up an Account for yourself and not for any other party. If You provide any information that is untrue, inaccurate, not current or incomplete, or FlexTal has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, FlexTal has the right to suspend or terminate Your Account and to refuse to provide You any and all current or future use of the Services (or any portion thereof).

2.3 Your Use. You will: (i) be responsible for any necessary hardware, software and connectivity required to access the Sites and use the Services, including without limitation, any fees associated with establishing and maintaining such access; (ii) be responsible for Users’ compliance with these Terms, (iii) be solely responsible for the accuracy, quality, integrity and legality in all applicable jurisdictions of Your Content, the means by which You acquired Your Content, and the right to enter and store Your Content in connection with the Services, (iv) prevent unauthorized access to or use of the Services, and (v) use the Services only in accordance with the online materials furnished by FlexTal that describe the features, functionality or operation of the Services (the “Documentation”) and in a manner consistent with all applicable laws and regulations.

2.4 Restrictions. You will not (i) make the Services available to any third party, (ii) sell, resell, rent or lease the Services, (iii) enter, load, process, store or transfer any data through the Services that is subject to laws, regulations, or certifications imposing obligations beyond a standard of reasonable care (including without limitation, classified data, or data subject to the Health Information Portability and Accountability Act (HIPAA) or the Gramm-Leach-Bliley Act (GLBA), nor allow any third party to do so, (iv) use the Services to store, publish or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of privacy rights, (v) use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (vi) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (vii) attempt to gain unauthorized access to the Services or their related systems or networks.

2.5 Access Through a SNS.  If you access the Services through a social networking service (“SNS”) as part of the functionality of the Services, you may link your Account with third-party accounts, by allowing FlexTal to access your third-party account, as is permitted under the applicable terms and conditions that govern your use of such account (each a “Third-Party Account”).  You represent that you are entitled to disclose your Third-Party Account login information to FlexTal and/or grant FlexTal access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating FlexTal to pay any fees or making FlexTal subject to any usage limitations imposed by such third-party service providers.  By granting FlexTal access to any Third-Party Accounts, you understand that FlexTal may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Services that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Services via your Account.  Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content for all purposes of the Agreement.  Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Services. Please note that if a Third-Party Account or associated service becomes unavailable, or FlexTal’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Services.  You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND FLEXTAL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.  FlexTal makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and FlexTal is not responsible for any SNS Content.

2.6 User Responsibility.  You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that FlexTal reserves the right, but has no obligation, to intercede in such disputes.  You agree that FlexTal will not be responsible for any liability incurred as the result of such interactions.

2.7 Content Provided by Other Users.  The Services may contain user content provided by other Users, such as project descriptions or resume information.  FlexTal is not responsible for and does not control user content, including but not limited to the accuracy, truthfulness and completeness of such information.  FlexTal has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to such user content.  You use all user content and interact with other Users at your own risk.

3. Policies and Security.

3.1 Privacy Policy. You acknowledge and agree that the Services are subject to FlexTal’s privacy policy and any other policies issued by FlexTal from time to time (the “Policies”). You will defend, indemnify, and hold harmless FlexTal from and against any and all damages relating to or arising out of any User’s breach of any of the Policies.

3.2 Feedback. You agree that FlexTal will have the unrestricted, perpetual right to use any feedback and related information You provide regarding the Services, including without limitation, any flaws, error, bugs, anomalies, problems with and/or suggestions for the Services (the “Feedback”).

3.3 Modification/Discontinuation. FlexTal reserves the right to modify or discontinue any of the features, functionality and other attributes of the Services at any time in its sole discretion. You acknowledge and agree that FlexTal will not be liable to You in connection with its modification or discontinuation of the Services or of any features or functionality thereof.

3.4 Storage. Unless expressly agreed to by FlexTal in writing elsewhere, FlexTal has no obligation to store any of Your Content. FlexTal has no responsibility or liability for the deletion or accuracy of any content, including Your Content; the failure to store, transmit or receive transmission of content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. 

3.5 Security. FlexTal will use commercially reasonable efforts, generally consistent with industry practices, to maintain the confidentiality of the Registration Data that You provide to FlexTal. Although FlexTal will implement and follow measures to protect against unauthorized access to Your Registration Data, You acknowledge and agree that FlexTal cannot fully eliminate security risks and cannot guarantee that unauthorized access to Your information will never occur. You acknowledge and agree that FlexTal may disclose information about You or Your use of the Service if compelled by law to do so, or if such action is deemed by FlexTal reasonably necessary to (i) comply with any applicable laws, rules or regulations, (ii) enforce these Terms, (iii) respond to claims that such information violates a third party’s rights, or (iv) protect the interests of FlexTal or others.

3.6 Procedure for Making Claims of Copyright Infringement. It is FlexTal’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to FlexTal by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for FlexTal’s Copyright Agent for notice of claims of copyright infringement is as follows: legal@flextal.com 

4. Fees and Suspension of Services. 

4.1 Fees and Payment. As consideration for FlexTal’s provision of the Services under these Terms, You will pay FlexTal the fees established by FlexTal from time to time (“Fees”). To do so, You must provide the payment card and related billing and payment information requested by FlexTal, and You agree that any such information You provide to FlexTal may be shared by FlexTal with payment processors and/or credit agencies, solely for the purposes of checking credit and effecting payment to FlexTal for the Services. FlexTal shall not be liable for any use or disclosure of such information by such third parties. All Fees are expressed in and all payments will be made in U.S. dollars. All Fees that You owe in connection with these Terms are exclusive of, and You shall pay, all sales, use, excise and other taxes that may be levied upon You in connection with the Services, except for taxes based on FlexTal’s net income. As applicable, FlexTal may offer refund credits to Your account to be applied to future services in certain situations subject to the terms of this Agreement and at FlexTal’s sole discretion. You acknowledge that FlexTal may modify the fees for the Services from time to time. You acknowledge that FlexTal may utilize additional, alternative or different payment service providers in the future. 

4.2 Third-Party Provider. FlexTal currently uses Stripe, Inc. (“Stripe”) as the third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). You acknowledge that We are bound by, and You agree, to the extent applicable, to be bound by Stripe’s terms and conditions (available at https://stripe.com/us/terms) along with its privacy policy (available at https://stripe.com/us/privacy). You hereby consent and authorize FlexTal and Stripe to share any information and payment instructions You provide with one or more third-party service provider(s) to the minimum extent required to complete Your transactions. 

4.3 Suspension. FlexTal reserves the right (in addition to any other rights or remedies FlexTal may have) to discontinue the Services and suspend all Accounts and access to the Services if any Fees owed are more than two (2) business days overdue until such amounts are paid in full. 

5. Intellectual Property Rights.

5.1 Services and Technology. You acknowledge that FlexTal retains all right, title and interest in and to the Services, as well as to all proprietary software, materials, formats, interfaces, information, data and content used by FlexTal or provided to You in connection with the Services (the “FlexTal Technology”), and that the FlexTal Technology is protected by intellectual property rights owned by or licensed to FlexTal. Other than as expressly set forth in these Terms, no license or other rights in the Services are granted to You, and all such rights are hereby expressly reserved by FlexTal.

5.2 Updates. You understand that the FlexTal Technology and Services are evolving. You acknowledge and agree that FlexTal may update the FlexTal Technology and Services with or without notifying You. 

5.3 Your Content. You retain all right, title and interest in and to Your Content. FlexTal will only use Your Content to provide the Services under these Terms. You will be solely responsible for providing, and obtaining the rights to provide, Your Content required for the proper operation of the Services. You grant to FlexTal a non-exclusive and royalty-free license to store, use and exploit Your Content as necessary to provide the Services.

5.4 Other Content. Except with respect to You Content, You agree that You no right, title or interest in or to any content that appears on or in the FlexTal Technology or Services.

5.5 Third-Party Materials. As a part of the FlexTal Technology and Services, You may have access to materials that are hosted by another party. You agree that it is impossible for FlexTal to monitor all such materials and that You access these materials at Your own risk.

5.6 Anonymous and Aggregated Data. Notwithstanding anything to the contrary in these Terms, FlexTal may aggregate and/or de-identify the information provided by You as well as including information and data on how the Services are used by You and other customers. FlexTal reserves the right to disclose to and share such information and data with third parties in an anonymous and aggregate form at its discretion and to use such information and data to improve or evolve the Services and for any other legitimate business purposes.

6. Term and Termination.

6.1 Term; Termination. These Terms shall be in effect for as long as You use the Services. You may terminate at any time by cancelling Your Account online; provided, however, any such termination shall not relieve You of any payment obligations to FlexTal in connection with Your use of the Services or entitle You to a refund of any prepaid Fees. If either party breaches any term hereof, the non-breaching party may immediately terminate upon written notice to the other. FlexTal may terminate Your access and use of the Services at any time for any reason, including without limitation, if FlexTal believes that (i) You have violated these Terms, or (ii) You have violated the rights of FlexTal or any third party. In addition, FlexTal may terminate or discontinue the Services or any portion thereof at any time and for any reason. 

6.2. Effects of Termination. Upon termination, the rights granted hereunder shall terminate effective immediately You shall promptly discontinue use of the Services. The rights and duties of the parties under Sections 4 through 11 will survive the termination or expiration of these Terms. FlexTal shall have no liability to You as a result of its termination of the Services.

7. Disclaimer. FLEXTAL MAKES NO WARRANTY CONCERNING THE SERVICES, THE FLEXTAL TECHNOLOGY, OR ANY DATA, MATERIALS, OR DOCUMENTATION PROVIDED IN CONNECTION WITH THESE TERMS, AND ALL OF THE FOREGOING ARE PROVIDED “AS IS” AND “AS AVAILABLE”. FLEXTAL DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. FLEXTAL DOES NOT WARRANT THAT THE SERVICES OR THE FLEXTAL TECHNOLOGY WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE. YOU UNDERSTAND THAT ALL DATA, INFORMATION OR OTHER MATERIAL YOU PROVIDE IS YOUR SOLE RESPONSIBILITY. FLEXTAL IS NOT RESPONSIBLE FOR ANY LOSS OF DATA OR HARM DONE TO YOUR COMPUTER, SYSTEMS OR OTHER EQUIPMENT ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES. YOU UNDERSTAND AND AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND DISCRETION.

8. Indemnity. You will indemnify, defend and/or settle, and pay damages of any kind (including without limitation attorneys’ fees) arising from or related to any third-party claim brought against FlexTal arising out of or related to Your use of the Services, Your Content, Your violation of any law, or infringement upon or misappropriation of any intellectual property right, publicity or privacy rights, or any other third party’s rights, or Your breach of these Terms.

9. Limitation of Liability. FLEXTAL’S TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THE SERVICES (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT) WILL NOT EXCEED $100. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FLEXTAL WILL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, EVEN IF FLEXTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

10. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires You to arbitrate disputes with FlexTal and limits the manner in which You can seek relief from Us. 

10.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and FlexTal agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and FlexTal may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or FlexTal may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.  

10.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and FlexTal. If that occurs, FlexTal is committed to working with you to reach a reasonable resolution. You and FlexTal agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and FlexTal therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to FlexTal that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@flextal.com or regular mail to our offices located at 342 Market Avenue SW, #2; Grand Rapids, MI, 49503. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

10.3 Waiver of Jury Trial.  YOU AND FLEXTAL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and FlexTal are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. 

10.4 Waiver of Class and Other Non-Individualized Relief. YOU AND FLEXTAL AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 10.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 10.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and FlexTal agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in New York County in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or FlexTal from participating in a class-wide settlement of claims.

10.5 Rules and Forum.  The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and FlexTal agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.  A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.  Unless you and  otherwise agree, or the Batch Arbitration process discussed in subsection 10.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. You and FlexTal agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential. 

10.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York  and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 10.9 (Batch Arbitration)  is triggered, JAMS will appoint the arbitrator for each batch.

10.7 Authority of Arbitrator.  The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

10.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or FlexTal need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs. 

10.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and FlexTal agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against FlexTal by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by FlexTal. You and FlexTal agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

10.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 342 Market Ave SW, #2; Grand Rapids, MI 49503, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your FlexTal account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

10.11 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with FlexTal as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

10.12 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if FlexTal makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to FlexTal at: 342 Market Ave SW, #2; Grand Rapids, MI , your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. FlexTal will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.

11. General Provisions.

11.1 Assignment. Neither party may assign any rights or obligations arising under these Terms, whether by operation or law or otherwise, without the prior written consent of the other; except that FlexTal may assign these Terms without Your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business or assets to which these Terms relate. These Terms shall inure to the benefit of and shall be binding on the permitted successors and assignees of the parties. Any attempted transfer of assignment hereof in violation of this Section is null and void.

11.2 Non-solicitation. During all periods of Your access to or use of the Sites or Services and for twelve (12) months after each such access or use (collectively, all such periods are referred to as the “Non-Solicit Period”), You agree not to and will not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage for performance of services (excluding services performed pursuant to the Services) any Talent whom you become aware of in connection with your interaction with FlexTal. 

11.3 Governing Law and Venue. These Terms will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to principles of conflict of laws that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Any action or proceeding arising from or relating to these Terms must be brought in any federal or state court in Wilmington, Delaware and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under these Terms results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.

11.4 Miscellaneous. Any notice or other communication required or permitted under these Terms and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (i) delivered personally, (ii) sent via certified mail (return receipt requested), (iii) posted online by FlexTal, or (iv) sent via electronic mail. These Terms and FlexTal’s privacy policy referenced herein, constitute the entire understanding and agreement of the parties, and supersede any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it. In the event that any provision of these Terms is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of these Terms will remain in full force and effect. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. The parties to these Terms are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by these Terms. These Terms may be executed in counterparts, which taken together shall form one legal instrument. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from FlexTal, or any products utilizing such data, in violation of the United States export laws or regulations.

11.5 Contact Information. Please direct any questions or comments to: legal@flextal.com or FlexTal, 342 Market Ave SW, #2; Grand Rapids, MI 49503.