Pole Position Terms of Use
The Pole Position Terms of Use (this “Agreement”), which is part of IndyWork, Inc., apply to your access or use of the Pole Position website, mobile sites, and applications (collectively, the “Pole Position Sites”) and the content, features, and services (the “Services” or “Pole Position Services”) made available by Pole Position.
In this Agreement, “Pole Position” and “we” mean a part of IndyWork, Inc. that is providing the Services to you, and with whom you are entering into this Agreement, which depends on the country in which you reside. The terms “Dancer”, “User” and “you” mean any Dancer using the Services. Additionally, the term “Clubs” refers to adult entertainment establishments. This Agreement incorporates Pole Position’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “Pole Position Policies”).
By accessing or using the Services or by clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER APPLICABLE TO DANCERS WHO ARE RESIDENTS OF THE UNITED STATES (INCLUDING ITS POSSESSIONS AND TERRITORIES), CANADA AND MEXICO.
CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR NON-PAGA REPRESENTTIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND POLE POSITION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
The Terms govern all use of the Pole Position Services, whether you access it from our mobile application, mobile website, our online or phone support offerings, or any other access point we make available to you. Our Privacy Policy and other Policies applicable to your use of the Pole Position Services are incorporated by reference into these Terms of Service.
Pole Position may update or revise this Agreement (including any Pole Position Policies) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Services. You may have to click “accept” or “agree” to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, you must terminate your use of the Services, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Pole Position, any use of the Services (e.g., selecting Positions at Clubs to receive a booking at as an independent contractor (as defined herein), Payment Services (as defined herein), is subject to the version of this Agreement in effect at the time of use.
Part I – Bookings
1. Nature of the Pole Position Service. The Pole Position Service consists of a mobile application and other related tools, support, and services that Dancers and Clubs can use to find, communicate with, and interact with each other. The terms “Booking” and “Booking Service” mean a booking secured by the Dancer at a Club on a specific agreed upon date and time.
2. Positions at Clubs. Pole Position provides Booking information regarding availability at Clubs through the Pole Position Sites to Dancers for the purpose of assisting Dancers in securing a Booking to dance. In response to a Dancer’s online request for a Booking through the Pole Position Sites, Pole Position contacts Clubs’ computerized databases for open Bookings, as applicable. The availability of Bookings is determined at the time of Dancer’s query and based on information provided to Pole Position by the Club. Once a Booking request is made by a Dancer through the Pole Position Sites, Pole Position will provide confirmation of the Booking to the Dancer by email or other electronic messages as has been agreed to by the Dancer. By using Pole Position, Dancer agrees to receive Booking confirmations, updates, modifications and/or cancellations by email or other electronic messages.
3. No Booking Guarantee. Dancers and Clubs can interact with each other on the Pole Position mobile application when there is a mutual agreement regarding a Booking that specifies the information and other terms for provision of the Services via the Booking mechanism provided on Pole Position. A Booking may be initiated by either party. You acknowledge that, once you complete a Booking, you agree to honor the Booking, as acknowledged in the confirmation. Each Club reserves the right to proceed with their individual onboarding, Booking, auditioning, and talent acquisition process. Pole Position does not guarantee the confirmation of a Booking. The Service is available for Dancers to request Bookings but Pole Position does not guarantee them. Booking confirmations are at the discretion of the Clubs and there may be a separate process associated with each one.
4. No-Show Policy. Pole Position is committed to providing superior quality services to Dancers and Clubs. To assist us in maintaining a consistently high level of service for the Clubs and their patrons, Dancers should cancel any Bookings that they will be unable to make. You may cancel your Booking via the Pole Position Sites. Additionally, you may be required to cancel your Booking in accordance with the Clubs’ cancellation policy. Failure to appear at the Club in a timely manner may result in the Club removing you from the opportunity to get a Booking at their establishment. If a Dancer consistently misses their Bookings there may also be a point penalty related to the Pole Position point system.
5. Usage Guidelines. Dancer agrees to use Pole Position only to book Bookings at Clubs and then honor those Booking requests by arriving at the Clubs on time. You may not use Pole Position to engage in prostitution and/or any other type of sex act in exchange for payment or any other form of compensation. Any violation of this policy may cause your account to be immediately terminated. Resale or attempted resale of Bookings is prohibited and is grounds for, among other things, cancellation of your Bookings, or termination of your access to the Services. Dancers listed on Pole Position are not under the direction or control of Pole Position and Dancers determine in their own discretion how to provide their service. Pole Position does not create an employee / employer relationship and is not a joint employer, co-employer, or staffing agency. Pole Position is only an application that connects Dancers with Clubs. Pole Position is not owned, operated, or funded by any Club or Clubs. Pole Position does not control any aspect of the relationship between Dancers and Clubs. Though we provide general information on our mobile application to Dancers, Pole Position does not employ, recommend, or endorse Dancers or Clubs, and, to the maximum extent permitted by applicable law, Pole Position will not be responsible or liable for the performance, quality, or conduct of Dancers or Clubs whether online or offline. We do not conduct an initial review of Dancer Profiles and we do not facilitate Background Checks or Identification Verifications on Clubs. You should exercise caution and use your independent judgment before engaging a Club, providing services, or otherwise interacting with Clubs via Pole Position. Dancers and Clubs are solely responsible for making decisions that are in the best interests of themselves.
Part II – Payment, Gift Card and Other Services
6. Payment and Other Services. Depending on your country of residency, Pole Position may offer additional Services such as payment services made available by Pole Position through the Pole Position Sites.
Part III – Terms for All Services
7. Privacy Policy. Pole Position is committed to helping you safeguard your privacy online. Please review our privacy policy for details about how we collect, use, and disclose information in connection with the Services.
8. Your Account. You must create an account with Pole Position through the Pole Position Sites (“Account”) in order to use the Booking Service. When registering for an Account, you must provide true, accurate, current, and complete data about yourself on the Pole Position registration form (“Registration Data”). You also agree to promptly update the Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Account and the information in your Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Account, whether or not authorized by you. You agree to immediately notify Pole Position of any unauthorized use of your Account or any other breach of security related to your use of the Services. You certify that you have full ownership of all photos provided by you for your Account. You are also required to upload pictures only of yourself and by agreeing to these terms of use you certify that your Account will only be filled by pictures of yourself.
9. Communications from Pole Position. If you use our Sites and Services, Pole Position may communicate with you via electronic messages, including email, text message/SMS, or mobile push notifications in accordance with our privacy policy.
10. Phone Number Changes. In the event that you deactivate a mobile phone number provided to us, you agree to update your Pole Position account information promptly to ensure that messages are not sent to the individual that acquires your old phone number.
11. Technical Requirements. Use of the Services requires Internet access through your computer or mobile device. You are responsible for all mobile carrier data or text message charges resulting from your use of the Services, including from any notifications provided by the Services. In order to use the text message-based services, you must maintain an active account with a carrier of electronic communications through mobile devices and you may not use a prepaid cellular phone to access such text message services. Pole Position does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers. You may be required to have JavaScript (or similar technologies) enabled to use the Pole Position Site, and some features and portions of the Pole Position Site (including, but not limited to, making, modifying, or canceling Bookings) may not be accessible with JavaScript disabled.
12. Modifications to Services. Pole Position reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Pole Position Sites, Clubs, and/or Merchants. Pole Position shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment and acceptance regarding such changes and satisfaction with all the Services.
13. Intellectual Property Rights and Grant of Rights to Dancer. The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “Pole Position Content”) are provided to Dancer by Pole Position or its partners or licensors solely to support Dancer’s permitted use of the Services. The Pole Position Content may be modified from time to time by Pole Position in its sole discretion. Except as expressly set forth herein, no license is granted to Dancer for any other purpose, and any other use of the Services or the Pole Position Content by Dancer shall constitute a material breach of this Agreement. Pole Position and its partners or licensors retain all rights in the Services and Pole Position Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Pole Position or any third party is granted under this Agreement.
14. Application License. Subject to the terms and conditions of this Agreement, Pole Position grants Dancer a non-exclusive, non-transferable, revocable license to use the Pole Position mobile applications, in object code form only, on Dancer’s compatible mobile devices, solely to support Dancer’s permitted use of the Services.
15. Use Restrictions. The Pole Position Services are offered solely for Dancer’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. Pole Position expressly reserves all its rights and remedies under applicable laws (including state, federal, and provincial/territorial laws). Pole Position reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel Bookings, or deny access to the Services. You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Pole Position Services or Content, except as expressly authorized by Pole Position; (2) take any action that imposes or may impose (in Pole Position’s sole determination) an unreasonable or a disproportionately large load on the Services or Pole Position’s infrastructure; (3) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Pole Position Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Pole Position Services or content to a third party; (5) use any portion of the Pole Position Services or content to provide, or incorporate any portion of the Services or Pole Position Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Pole Position Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Pole Position); (7) modify any Pole Position Services or content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Pole Position Services or content; (9) use the Pole Position Services or content for any illegal purpose; or (10) publicly disseminate information regarding the performance of the Pole Position Services, content, or access or use the Pole Position Services or content for competitive analysis or benchmarking purposes. Although the Pole Position Sites may be accessible worldwide, not all features or services discussed, referenced, provided or offered through or on the Pole Position Sites are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. Pole Position reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area.
16. United States Government and Dancers. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end Dancers acquire any Pole Position Sites with only those rights set forth therein.
17. Export Control. You may not use, export, or re-export any Pole Position Sites or other aspects of the Services (or any copy or adaptation of the foregoing) in violation of applicable law, including, without limitation, United States and foreign export laws and regulations. You represent and warrant that 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 that you are not listed on any U.S. Government list of prohibited or restricted parties.
18. Termination. Pole Position may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Pole Position may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any Pole Position Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account, and, where applicable, you may lose access to and be unable to use Pole Position. You agree that Pole Position shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which Pole Position will have no liability whatsoever.
19. Reviews, Comments, Communications, and Other Content. The Services may permit you to submit, transmit, post or otherwise provide content, including, but not limited to, reviews, comments, ratings, photos, images, videos, sounds, text, data, links and location information; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information (“Dancer Content”). Any such Dancer Content must not be illegal, threatening, obscene, racist, defamatory, discriminatory, malicious, libelous, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of a third party’s publicity or privacy rights, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, or false advertising. Your Dancer Content should be unbiased and objective. You may not submit reviews, comments or ratings for which you are being compensated in any manner, or for your own Club or any Club, friend, relative or a competitor. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of Dancer Content. The name or handle you choose to provide to Pole Position may be displayed publicly with such Dancer Content. Pole Position reserves the right (but has no obligation) to monitor, remove, or edit Dancer Content in Pole Position’s sole discretion, including if Dancer Content violates this Agreement (including any Pole Position Policies), but you acknowledge that Pole Position may not regularly review submitted Dancer Content. If you do submit Dancer Content, and unless we indicate otherwise, you grant Pole Position a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers, including to Clubs, partners and other third party websites and feeds) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such Dancer Content throughout the world in any media, and, where applicable, you hereby waive any privacy or publicity rights or any similar rights in an individual’s name or likeness in addition to any moral or other rights you may have in the Dancer Content you submit in favor of Pole Position. You represent that you own, or have the necessary permissions to use and authorize the use of Dancer Content as described herein. Pole Position takes no responsibility and assumes no liability for any Dancer Content submitted by you or any other Dancer or third party, nor do we guarantee any confidentiality with respect to Dancer Content.
20. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any Dancer Content submitted by you; that all Dancer Content submitted by you is accurate; and that exploitation of such Dancer Content by Pole Position and its other Dancers, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at Pole Position’s request) defend Pole Position, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders, including IndyWork, Inc., (collectively, the “Pole Position Parties”) from and against all claims resulting from (1) any Dancer Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
21. Liability Limitations. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, IN NO EVENT SHALL THE POLE POSITION PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, LIQUIDATED, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT (INCLUDING ANY CHANGES THERETO), (2) ANY USE OF THE POLE POSITION SITES, SERVICES, THE POLE POSITION CONTENT, OR THE DANCER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF ANY OF THE SERVICES), OR (4) YOUR VISIT TO ANY CLUB OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY CLUB OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE POLE POSITION SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO DANCER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE POLE POSITION CONTENT. POLE POSITION IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY CLUB FOR WHICH A DANCER HAS MADE A BOOKING. IFYOU ARE A RESIDENT OF THE UNITED KINGDOM OR EUROPEAN UNION, THE LIMITATION OF LIABILITY IN THIS AGREEMENT SHALL NOT APPLY TO ANY DAMAGE ARISING FROM OUR WILLFUL MISCONDUCT AND GROSS NEGLIGENCE, NOR SHALL IT APPLY TO DAMAGE FROM INJURY TO LIFE, BODY OR HEALTH.
IF THE DISCLAIMER OF DIRECT DAMAGES ABOVE IS NOT ENFORCEABLE AT LAW, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, YOU EXPRESSLY AGREE THAT OUR LIABILITY TO YOU (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50).
You and Pole Position understand and agree that the disclaimers, exclusions, and limitations in this Section 21 and in Section 22 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Pole Position would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
22. Disclaimer of Warranties. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND POLE POSITION CANNOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, ALL POLE POSITION CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO DANCER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. POLE POSITION EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. POLE POSITION DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT POLE POSITION WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. POLE POSITION SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF POLE POSITION.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
23. Third-Party Websites, Applications and Services. The Services may contain hypertext links to websites and applications operated by parties other than Pole Position. Such hypertext links are provided for Dancer’s reference only, and Pole Position does not control such websites and is not responsible for their content. Pole Position’s inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. Pole Position assumes no liability whatsoever for any such third-party websites, applications or any content, features, products, or services made available through such third-party websites or applications. Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary's terms of service, including any license transferability and other usage rules therein.
24. Release. Clubs and Merchants are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your (or such recipient’s) interaction with or visit to any Club or Merchant or from any promotion, offer, product or service of any Club or Merchant. Dancers must resolve all disputes directly with Clubs. To the maximum extent permitted by applicable law, you hereby release the Pole Position Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Pole Position Parties pertaining to the subject matter of this Section 21. If you are a resident of the United Kingdom or European Union, this release shall not apply to any damage arising from our willful misconduct or gross negligence, nor shall it apply to damage from injury to life, body or health.
25. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section.
In order for us to act, you must do the following in your notice:
(a) provide your physical or electronic signature;
(b) identify the copyrighted work that you believe is being infringed;
(c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it;
(d) provide us with a way to contact you, such as your address, telephone number, or email;
(e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and
(f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
Copyright Enforcement IndyWork, Inc.
IndyWork, Inc.
5373 W. Alabama St., Suite 600
Houston, Texas 77056
info@indywork.com
Again, we cannot take action unless you give us all the required information.
26. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
27. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by Dancer, but may be freely transferred, assigned, or delegated by Pole Position.
28. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
29. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
If you are a resident of the United States (including its possessions and territories) or Canada, you agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the Pole Position Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration. The arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other Pole Position Services. If you are a resident in Mexico, you hereby expressly waive any right to exercise a class action before a Mexican court against Pole Position and Pole Position Parties, pursuant to the terms of the Federal Code of Civil Procedure (CódigoFederal de ProcedimientosCiviles) and any other applicable Mexican legislation.
Unless you opt out of the Arbitration Agreement in accordance with the procedure described below, you agree that any and all Claims (other than Excluded Claims) will be resolved exclusively on an individual basis through final and binding arbitration, rather than in a court, in accordance with this Arbitration Agreement, and your rights in connection with all Claims (other than Excluded Claims) will be determined by a neutral arbitrator, not by a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To the extent that the Parties' dispute involves both timely filed Excluded Claims and other Claims subject to this Agreement, the Parties agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.
Pre-Arbitration Dispute Resolution. Before you commence arbitration, we suggest that you contact us to explain your complaint. Our preference will always be to resolve complaints amicably and efficiently, without the need for arbitration. You may contact us via email at info@indywork.com or by mail at 5373 W. Alabama St., Suite 600, Houston, TX 77056.
If the issue is not resolved and results in arbitration, we will need to mutually select and agree upon an arbitrator and the rules and procedures to govern the arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
In the case of arbitration and where permitted by law, you are thus agreeing to GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
In the case of arbitration and where permitted by law, you and Pole Position must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR POLE POSITION MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Pole Position will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) Pole Position also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or Pole Position may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Houston, Texas. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Houston, Texas in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Houston, Texas for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of Pole Position Parties (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Pole Position shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration (including any claims brought by parties outside the United States or Canada), the dispute shall be exclusively brought in state or federal court located in Houston, Texas.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
30. Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this section. The Opt-Out Notice must be postmarked no later than 30 days after the date you accept these Terms for the first time. You must mail the Opt-out Notice to 5373 W. Alabama St., Suite 600, Houston, TX 77056. The Opt-out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the Pole Position Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. By opting out of binding arbitration, you are agreeing to resolve Claims (including Excluded Claims) in accordance with Section 31.
31. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Texas, U.S.A, consistent with the Federal Arbitration Act (to the extent permitted by applicable law), without giving effect to any principles that provide for the application of the law of another jurisdiction. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction and/or country of residency. If you are a resident of a European Union member country, parties may be able to resolve consumer disputes in the way of alternative dispute resolution on the ODR platform of the European Commission. The platform is available at http://ec.europa.eu/consumers/odr
32. Miscellaneous. Nothing in this Agreement will be construed as making either party the partner, joint venturer, agent, legal representative, employer, worker, or employee of the other. Neither party will have, or hold itself out to any third party as having, any authority to make any statements, representations, or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound. The invalidity, illegality, or unenforceability of any term or provision of these Terms will in no way affect the validity, legality, or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such a term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms will be enforceable as so modified. To the maximum extent possible under applicable local law, this Agreement will be binding on and will inure to the benefit of the legal representatives, successors, and assigns of the parties hereto.
Updated: January 26, 2024