Terms of Service
PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. Subject to the conditions set forth herein, MyKuya Technologies, PTE Ltd of Singapore (“MyKuya”) MyKuya may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on any of MyKuya Sites including but not limited to the mobile application, website or social media (collectively the “Sites” or “Site”). MyKuya will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Sites, providing notice on the Sites, and/or sending you notice by email. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
1. MyKuya ACCOUNTS
Section 1 discusses what you must agree to before using the Site or Site Services and the different types of accounts that can be created on the Site, as detailed below:
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.
1.2 ACCOUNT ELIGIBILITY
MyKuya offers the Site and Site Services for your business and individual needs. To register for an Account or use the Site and Site Services, you must, and hereby represent that you:
(a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity);
(b) will use the Site and Site Services for business and individual purposes only;
(c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of MyKuya Partner Services; and, (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“ Profile”), which you consent to be shown to other Users and, unless you change your privacy settings, the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT TYPES
As described in this Section, there are a number of different Account types, as defined below Once you register for one Account type, you can add the other Account types under the same username and password. For example, if you already have a MyKuya Partner Account (defined below), you can add a Client Account as a separate account type in settings without re -registering. You agree not to have or register for more than one Account without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Site or Site Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your Profile or Account.
1.4.1 CLIENT ACCOUNT
If you desire to avail of the services of any of our MyKuya Partners, you can register for an Account or add an Account type to use the Site and Site Services as a Client (a “Client Account”). Each User under a Client Account (“Client Team Member”) can be given different permissions to act on behalf of the Client Account.
1.4.2 MYKUYA PARTNER, AGENCY, AND AGENCY MEMBER ACCOUNT
188.8.131.52 MYKUYA PARTNER ACCOUNT
If you have the skills and services that our clients needs, you can register for an Account or add an Account type to use the Site and Site Services as a MyKuya Partner (a “MyKuya Partner Account”).
184.108.40.206 AGENCY ACCOUNT
Another type of MyKuya Account you can add is an “Agency Account”, the owner of which is referred to as an “Agency”, if you can provide our clients with skills and services that they need, MyKuya can match you to these clients. An Agency Account allows permissions to be granted to Users under the Agency Account which can be given different permissions to act on behalf of the Agency (each, an “Agency Member”).
You acknowledge and agree that the Agency is solely responsible, and assumes all liability, for:
(a) the classification of your Agency Members as your employees or independent contractors; and,
(b) paying your Agency Members in accordance with applicable law for work performed on behalf of the Agency for Projects.
You further acknowledge and agree that (i) the Agency may determine the Profile visibility of any of its Agency Members, and (ii) Agency Members’ Profiles may display work history that includes work done under the Agency Account, including after the Agency Member is no longer an Agency Member.
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, including as a Team Member or Agency Member, you represent and warrant that:
(a) the User is authorized to act on your behalf;
(b) you are financially responsible for the User’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the owner of the Account; and,
(c) you are fully responsible and liable for any action of any User to whom you have provided any permissions and any other person who uses the Account, including making payments and entering into Service Contracts and the Terms of Service.
If any such User violates the Terms of Service, it may affect your ability to use the Site. Upon closure of an Account, MyKuya may close any or all related Accounts.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on MyKuya. You authorize MyKuya, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business.
1.7 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize MyKuya to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
2. PURPOSE OF MYKUYA
Section 2 discusses what MyKuya does and does not do when providing the Site and Site Services and some of your responsibilities when using the Site to find or enter into a Service Contract with a MyKuya Partner or Client, as detailed below.
The Site is a marketplace where Clients and MyKuya Partners can identify each other and advertise, buy, and sell MyKuya Partner Services online. Subject to the Terms of Service, MyKuya provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH MYKUYA
MyKuya merely makes the Site and Site Services available to enable MyKuya Partners and Clients to find and transact directly with each other. MyKuya does not introduce MyKuya Partners to Clients, find Projects for MyKuya Partners, or find MyKuya Partners for Clients. Through the Site and Site Services, MyKuya Partners may be notified of Clients that may be seeking the services they offer, and Clients may be notified of MyKuya Partners that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project, Client or MyKuya Partner on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and MyKuya is not a party to that Service Contract. You acknowledge, agree, and understand that MyKuya is not a party to the relationship or any dealings between Client and MyKuya Partner. Without limitation, Users are solely responsible for:
(a) ensuring the accuracy and legality of any User Content;
(b) determining the suitability of other Users for a Service Contract (such as any interviews, vetting, background checks, or similar actions);
(c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts,
(d) performing MyKuya Partner Services, or;
(e) paying for Service Contracts or MyKuya Partner Services.
You further acknowledge, agree, and understand that:
(a) you are solely responsible for assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information (defined below).
(b) MyKuya does not: (i) make any representations about or guarantee the truth or accuracy of any MyKuya Partner’s or Client’s listings or other User Content on the Site; (ii) does not verify any feedback or information provided by Users about MyKuya Partners or Clients; and (iii) does not vet or otherwise perform background checks on MyKuya Partners or Clients.
(c) MyKuya does not, in any way, supervise, direct, control, or evaluate MyKuya Partners or their work and is not responsible for any Project, Project terms or Work Product;
(d) MyKuya makes no representations about and does not guarantee, and you agree not to hold MyKuya responsible for, the quality, safety, or legality of MyKuya Partner Services; the qualifications, background, or identities of Users; the ability of MyKuya Partners to deliver MyKuya Partner Services; the ability of Clients to pay for MyKuya Partner Services; User Content, statements or posts made by Users; or the ability or willingness of a Client or MyKuya Partner to actually complete a transaction.
(f) you are not an employee of MyKuya, and you are not eligible for any of the rights or benefits of employment;
(g) MyKuya will not have any liability or obligations under or related to Service Contracts and/or MyKuya Partner Services for any acts or omissions by you or other Users;
(h) MyKuya does not, in any way, supervise, direct, or control any MyKuya Partner or MyKuya Partner Services; does not impose quality standards or a deadline for completion of any MyKuya Partner Services; and does not dictate the performance, methods or process MyKuya Partner uses to perform services;
(j) MyKuya Partner will be paid at such times and amounts as agreed with a Client in a given Service Contract, and MyKuya does not, in any way, provide or guarantee MyKuya Partner a regular salary or any minimum, regular payment;
(k) MyKuya does not provide MyKuya Partners with training or any equipment, labor, tools, or materials related to any Service Contract; and,
(l) MyKuya does not provide the premises at which MyKuya Partners will perform the work. MyKuya Partners are free to use subcontractors or employees to perform MyKuya Partner Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for MyKuya Partner’s subcontractor(s) or employee(s). If a MyKuya Partner uses subcontractors or employees, MyKuya Partner further agrees and acknowledges that this paragraph applies to MyKuya’s relationship, if any, with MyKuya Partner’s subcontractors and employees as well and MyKuya Partner is solely responsible for MyKuya Partner’s subcontractors and employees.
Without limiting the foregoing paragraph, if you are an Agency or Agency Member, you expressly acknowledge, agree, and understand that:
(a) the Agency is solely responsible for paying its Agency Members for work performed on behalf of the Agency and that such payments will not be made through the Site;
(b) MyKuya is not a party to any agreement between the Agency and its Agency Members and does not have any liability or obligations under or related to any such agreement, even if the Agency or Agency Member defaults;
(c)neither Agencies nor Agency Members are employees or agents of MyKuya, and MyKuya does not, in any way, supervise, direct, or control the Agency or Agency Member or services performed by the Agency or Agency Member;
(d) MyKuya does not, in any way, supervise, direct, or control the Agency or Agency Members;
(f) MyKuya does not provide Agencies or Agency Members with training or any equipment, labor, tools, or materials needed for any Service Contract;
(g) MyKuya does not provide the premises at which the Agency or Agency Members will perform the work; and;
(h) MyKuya makes no representations as to the reliability, capability, or qualifications of any Agency or Agency Member or the ability or willingness of any Agency to make payments to or fulfill any other obligations to Agency Members, and MyKuya disclaims any and all liability relating thereto.
Nothing in this Agreement is intended to prohibit or discourage (nor should be construed as prohibiting or discouraging) any User from engaging in any other business activities or providing any services through any other channels they choose. Users are free at all times to engage in such other business activities and services and are encouraged to do so.
2.2 TAXES AND BENEFITS
MyKuya Partner acknowledges and agrees that MyKuya Partner is solely responsible:
(a) for all tax liability associated with payments received from MyKuya Partner’s Clients and through MyKuya, and that MyKuya will not withhold any taxes from payments to MyKuya Partner;
(b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that MyKuya Partner is not covered by or eligible for any insurance from MyKuya;
(c) for determining whether MyKuya Partner is required by applicable law to issue any particular invoices for the MyKuya Partner Fees and for issuing any invoices so required;
(d) for determining whether MyKuya Partner is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the MyKuya Partner Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and
In the event of an audit of MyKuya, MyKuya Partner agrees to promptly cooperate with MyKuya and provide copies of MyKuya Partner’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing MyKuya Partner is engaging in an independent business as represented to MyKuya.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request MyKuya to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that MyKuya Partners or Clients voluntarily submit to MyKuya and does not constitute and will not be construed as an introduction, endorsement, or recommendation by MyKuya; MyKuya provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that MyKuya post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your Client Satisfaction Score, wherever referenced, and other User Content highlighted by MyKuya on the Site or otherwise (“Composite Information”), if any, will include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that MyKuya will make Composite Information available to other Users, including composite or compiled feedback. MyKuya provides its feedback system as a means through which Users can share their opinions of other Users publicly, and MyKuya does not monitor, influence, contribute to or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
MyKuya does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable or defamatory. MyKuya is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, MyKuya reserves the right (but is under no obligation) to remove posted feedback or information that, in MyKuya’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of MyKuya. You acknowledge and agree that you will notify MyKuya of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, MyKuya may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND MYKUYA PARTNER
Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
If a Client and MyKuya Partner decide to enter into a Service Contract outside of the MyKuya application, the Service Contract is a contractual relationship directly between the Client and MyKuya Partner. Client and MyKuya Partner have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. You acknowledge, agree, and understand that MyKuya is not a party to any Service Contracts, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between MyKuya and any MyKuya Partner or a partnership or joint venture between MyKuya and any User.
With respect to any Service Contract, Clients and MyKuya Partners may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.) provided that any such agreements do not conflict with, narrow, or expand MyKuya’s rights and obligations under the Terms of Service, including this Agreement.
3.1 DISPUTES AMONG USERS
For disputes arising between Clients and MyKuya Partners, you agree to abide by the dispute process provided in this Agreement and that apply to your particular Service Contract. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that MyKuya will not and is not obligated to provide any dispute assistance.
3.2 CONFIDENTIAL INFORMATION
Users may agree to any terms they deem appropriate with respect to confidentiality. If and to the extent that the Users do not articulate any different agreement, then they agree that this Section 3.3 (Confidentiality) applies.
To the extent a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.
3.3 THIRD-PARTY BENEFICIARIES
It is the intent of the Parties to this Agreement that Users who have entered into Service Contracts or disclosed or received Confidential Information to another User are third-party beneficiaries of this Agreement with respect to this Section 3 only.
4. WORKER CLASSIFICATION
Section 4 discusses what you agree to concerning whether a MyKuya Partner is an employee or independent contractor.
4.1 WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between MyKuya and a User.
5. MYKUYA FEES
Section 5 describes what fees you agree to pay to MyKuya in exchange for MyKuya providing the Site and Site Services to you and what taxes MyKuya may collect, as detailed below.
5.1 SERVICE FEES FOR MYKUYA PARTNERS
MyKuya Partners pay MyKuya a Service Fee (as defined in this Section 5.1) for the use of the Site. MyKuya charges service fees to MyKuya Partners, for using the Site’s communication, invoicing, reporting, dispute resolution and payment services (the “Service Fees”). The Service Fees (to use the Site and Site Services) are paid solely by MyKuya Partner. When a Client pays a MyKuya Partner for a Project or when funds related to a Project are otherwise released to a MyKuya Partner, MyKuya will credit the MyKuya Partner’s Account for the full amount paid or released, and then subtract and disburse to MyKuya the Service Fee. MyKuya Partner hereby irrevocably authorizes and instructs MyKuya to deduct the Service Fee from the MyKuya Partner Account.
5.2 DISBURSEMENT FEES
MyKuya Partners may pay MyKuya a disbursement fee for remitting payments to their preferred payment method (“Disbursement Fee”). The Disbursement Fee is paid to MyKuya in consideration of costs incurred and administration of disbursements via the disbursement method requested by MyKuya Partner and varies by disbursement method. The Disbursement Fee for each disbursement method is listed at under Fees and Schedules on the Site as revised from time to time. Additional activation, maintenance, and account fees may be charged by the disbursement method requested by MyKuya Partner.
5.3 PAYMENT PROCESSING AND ADMINISTRATION FEES
Clients pay MyKuya a fee for payment processing and administration related to the MyKuya Partner Fees they pay to MyKuya Partners they engage through the Site.
5.4 VAT AND OTHER TAXES
MyKuya may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (“value-added tax) or any other applicable local tax. In such instances, any amounts MyKuya is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to MyKuya under the Terms of Service.
5.5 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS
MyKuya does not introduce Clients to MyKuya Partners and does not help MyKuya Partners secure Projects. MyKuya merely makes the Site and Site Services available to enable MyKuya Partners to do so themselves and may from time to time highlight Projects that may be of interest. Therefore, MyKuya does not charge a fee when a MyKuya Partner finds a suitable Client or finds a Project. In addition, MyKuya does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Composite Information.
6. PAYMENT METHODS
Section 6 discusses your agreement to pay on the payment method for MyKuya Partner Service Fees on Service Contracts and what happens if a Client does not pay, and related topics, as detailed below.
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method such as a credit card, or any other Payment Method which may be acceptable to MyKuya.
By providing Payment Method information through the Site and authorizing payments with the Payment Method, Client represents, warrants, and covenants that:
(a) Client is legally authorized to provide such information;
(b) Client is legally authorized to make payments using the Payment Method(s);
(c) if Client is an employee or agent of a company or person that owns the Payment Method, that Client is authorized by the company or person to use the Payment Method to make payments on MyKuya; and;
(d) such actions do not violate the terms and conditions applicable to Client’s use of such Payment Method(s) or applicable law.
When Client authorizes a payment using a Payment Method via the Site, Client represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Client’s Payment Method(s), Client is solely responsible for paying such amounts by other means.
Because the use of any Payment Method may be limited by applicable law or by written agreement with your financial institution, MyKuya is not liable to any User if MyKuya does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. MyKuya will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement.
Section 7 discusses your agreement to make and receive payments only through MyKuya for two years from the date you first meet your Client or MyKuya Partner on the Site.
7.1 MAKING PAYMENTS THROUGH MYKUYA
You acknowledge and agree that a substantial portion of the compensation MyKuya receives for making the Site available to you is collected through the Service Fee described in Section 5.1. MyKuya only receives this Service Fee when a Client and a MyKuya Partner pay and receive payment through the Site. Therefore, for 24 months from the time you identify or are identified by any party through the Site (the “ Non-Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party (the “MyKuya Relationship”). For the avoidance of doubt, if you, or the business you represent, did not identify and were not identified by another party through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. If you use the Site as an employee, agent, or representative of another business, then the Non -Circumvention Period applies to you and other employees, agents, or representatives of the business when acting in that capacity with respect to the other User.
By way of illustration and not in limitation of the foregoing, you agree not to:
Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
Invoice or report on the Site request an invoice or payment amount lower than that actually agreed between Users.
Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
You agree to notify MyKuya immediately if a person suggests to you making or receiving payments outside of the Site in violation of this Section 7.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to MyKuya by sending a message to our website
8. RECORDS OF COMPLIANCE
Section 8 discusses your agreement to make and keep all required records, as detailed below. Users will each:
(a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws; and,
(b) provide copies of such records to MyKuya upon request. Nothing in this subsection requires or will be construed as requiring MyKuya to supervise or monitor a User’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for creation, storage, and backup of your business records.
This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on MyKuya’s part to store, backup, retain, or grant access to any information or data for any period.
9. WARRANTY DISCLAIMER
Section 9 discusses your agreement and understanding that the Site and Site Services may not always be available or work perfectly, as detailed below.
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. MYKUYA MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MYKUYA DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 14 (TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST MYKUYA WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
10. LIMITATION OF LIABILITY
Section 10 discusses your agreement that MyKuya usually will not have to pay you damages relating to your use of the Site and Site Services and, if it is, at most it will be required to pay you $1.00, as detailed below.
MyKuya is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
your use of or your inability to use our Site or Site Services;
delays or disruptions in our Site or Site Services;
viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
damage to your hardware device from the use of the Site or Site Services;
the content, actions, or inactions of third parties’ use of the Site or Site Services;
a suspension or other action taken with respect to your Account;
your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL MYKUYA, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRDPARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF MYKUYA, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $ 1.00 OR (B) ANY FEES RETAINED BY MYKUYA WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR MYKUYA PARTNER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
Section 11 discusses your agreement not to hold us responsible for any dispute you may have with another User, as detailed below.
In addition to the recognition that MyKuya is not a party to any contract between Users, you hereby release MyKuya, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the MyKuya Partner Services provided to Client by a MyKuya Partner and requests for refunds based upon disputes.
Section 12 discusses your agreement to pay for any costs or losses we have as a result of a claim brought against us related to your use of the Site or Site Services or your illegal or harmful conduct, as detailed below.
You will indemnify, defend, and hold harmless MyKuya, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Site Services by you or your agents, including any payment obligations or default incurred through use of the Site Services; (b) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a MyKuya Partner as an independent contractor; the classification of MyKuya as an employer or joint employer of MyKuya Partner; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section 12, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
13. AGREEMENT TERM AND TERMINATION
Section 13 discusses your and MyKuya’s agreement about when and how long this Agreement will last, when and how either you or MyKuya can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and MyKuya expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice through our website. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. MyKuya is not a party to any Service Contract between Users. Consequently, User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Projects, you agree (a) you hereby instruct MyKuya to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have closed on the Site; (c) MyKuya will continue to perform those Site Services necessary to complete any open Project or related transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to MyKuya for any Site Services or such other amounts owed under the Terms of Service and to any MyKuya Partners for any MyKuya Partner Services.
Without limiting MyKuya’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or MyKuya or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without MyKuya’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users, including both yourself and other Users who have entered into Service Contracts with you. You therefore agree as follows: IF MYKUYA DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, MYKUYA HAS THE RIGHT WHERE ALLOWED BY LAW BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT MYKUYA WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY USER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and that that any closure of your Account may involve deletion of any content stored in your Account for which MyKuya will have no liability whatsoever. MyKuya, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or MyKuya from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
14. DISPUTE RESOLUTION
Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with Singapore arbitration rules. The language of the arbitration shall be English. The fees of the Arbitrator shall be borne equally by the parties, provided that the Arbitrator may require that such fees be borne in such other manner as the Arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law.
Section 15 discusses additional terms of the agreement between you and MyKuya, including that the Terms of Service contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations, as detailed below.
15.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and MyKuya relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though MyKuya drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or MyKuya because of the authorship of any provision of the Terms of Service.
15.2 MODIFICATIONS; WAIVER
No modification or amendment to the Terms of Service will be binding upon MyKuya unless in a written instrument signed by a duly authorized representative of MyKuya or posted on the Site by MyKuya. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.