“Site or Sites” refers to the mobile application, website, and social media accounts owned and maintained by MyKuya, which are online platforms where Clients and MyKuya Partners can identify and connect with each other for the purpose of executing an agreement on performance of various services required by Client.
“Site Services” refers to the hosting and maintenance of the Site or Sites by MyKuya.
“User” refers to any person or entity that accesses and/or uses the Site or Sites whether as a visitor, Client or as a MyKuya Partner.
“MyKuya Account” refers to the arrangement in which MyKuya grants the User the right to access and use the Site or Sites and Site Services upon compliance by the User of MyKuya requirements.
“Client” refers to any person or entity that requires the performance of certain services which are offered by a MyKuya Partner.
“MyKuya Partner” refers to any person or entity that offers the performance of services through the Site or Sites.
“Project” means an engagement for MyKuya Partner services that a MyKuya Partner provides to a Client as a result of the use of the Site or Sites.
“Service Contract” means the agreement between a Client and a MyKuya Partner governing the services to be performed by a MyKuya Partner for Client for a Project.
“Payment Method” means a valid credit card issued by a bank acceptable to MyKuya, or such other method of payment as MyKuya may accept from time to time in its sole discretion.
2. PURPOSE OF MyKuya
Section 2 discusses what MyKuya does and does not do when allowing use of the Site and providing the Site Services.
2.1 MYKUYA BUSINESS ACTIVITY
MyKuya is a technology company that owns and maintains the Site or Sites and makes the Site and Site Services available to Users to enable MyKuya Partners and Clients to find and transact directly with each other. Through the Site and Site Services, MyKuya Partners may be notified of Clients seeking the services they offer, and Clients may be notified of MyKuya Partners that may offer the services they seek.
2.2 MYKUYA LIMITATIONS
(a) MyKuya does not introduce MyKuya Partners to Clients, find Projects for MyKuya Partners, or find MyKuya Partners for Clients. 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.
(b) MyKuya does not: (i) make any representations about or guarantee the truth or accuracy of any MyKuya Partner’s or Client’s information and 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 Users 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 information and content, statements or posts made by Users; or the ability or willingness of a Client or MyKuya Partner to actually complete a transaction.
(e) 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 the Users.
(f) 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.
(g) MyKuya does not, in any way, provide or guarantee MyKuya Partner a regular salary or any minimum or regular payment. A MyKuya Partner will be paid by a Client at such times and amounts as agreed upon with such Client in a given Service Contract. Consequently, MyKuya shall not be responsible as a withholding agent for any withholding taxes on the payments pursuant to a Service Contract.
(h) MyKuya does not provide MyKuya Partners with training or any equipment, labor, tools, or materials related to any Service Contract.
(i) MyKuya does not provide the premises at which MyKuya Partners will perform the work. It shall be the sole discretion of MyKuya Partners whether or not to engage subcontractors or employees to perform MyKuya Partner services. Whether or not MyKuya Partner uses subcontractors or employees, MyKuya Partner further agrees and acknowledges that it is solely responsible for acts or omissions of its subcontractors or employees with respect to the Project.
3. MyKuya ACCOUNTS
Section 3 states the requirements and consequences of creation of a MyKuya Account.
3.1 REGISTRATION AND ACCEPTANCE
MyKuya reserves the right to decline a registration for a MyKuya Account or to add to an Account or Accounts of a User.
3.2 ACCOUNT ELIGIBILITY
MyKuya offers the Site and Site Services for lawful business and individual needs of the User. With the registration of a MyKuya Account and use of the Site and Site Services, it is represented and warranted that the User:
(a) will use the Site and Site Services for valid business and individual purposes only;
(b) has capacity to enter into contracts and is of majority age, if the User is an individual who registers a MyKuya Account in their personal capacity;
(d) has a valid and duly registered business, if the User is a self-employed individual/sole proprietor, corporation, limited liability company, or other juridical entity;
(e) is compliant with any registration, licensing, permit, or other requirements with respect to the conduct of business, if the User is engaged in business.
3.3 ACCOUNT PROFILE
To register for a MyKuya Account to join the Site, a User must complete a User profile (“Profile”), which the User consents to be shown to other Users and, unless the User changes the privacy settings, the public. The User agrees to provide true, accurate, and complete information in the Profile, in all registration and other forms on the Site or Sites completed by the User, or in other documents that the User provides to MyKuya. In addition, the User shall be responsible in updating their own information in the Site or Sites. The User agrees not to provide any inaccurate, false or misleading information in the Site or Sites and the User shall rectify or correct any information that is or becomes false or misleading.
3.4 MyKuya ACCOUNT TYPES
The two (2) types of MyKuya Accounts are the Client Account and the MyKuya Partner Account.
3.4.1 CLIENT ACCOUNT
If the User desires to avail of the services of any of the MyKuya Partners, the User can register for a Client Account or add a Client Account to an existing MyKuya Partner Account. A Client Account may have several authorized Users and each User under a Client Account (“Client Team Member”) can be given different permissions to act on behalf of the Client Account.
3.4.2 MYKUYA PARTNER ACCOUNT
A User who offers skills and services required by Clients in the Site or Sites can register for a MyKuya Partner Account or add a MyKuya Partner Account to an existing Client Account. A MyKuya Partner Account may have several authorized Users and each User under a MyKuya Partner Account (“MyKuya Partner Team Member”) can be given different permissions to act on behalf of the MyKuya Partner Account.
3.5 ACCOUNT PERMISSIONS
By granting Client Team or MyKuya Partner Team Member/s permissions under a Client or MyKuya Partner Account, a User represents and warrants that:
(a) the Client/MyKuya Partner Team Member is authorized to act on behalf of the User;
(b) they are financially responsible for the Client/MyKuya Partner Team Member’s actions taken in accordance with those permissions, including, if applicable, entering into binding contracts on behalf of the User; and,
(c) they are fully responsible and liable for any action of a Client/MyKuya Partner Team Member, including making payments and entering into Service Contracts.
3.6 IDENTITY AND LOCATION VERIFICATION
From time to time, a registered MyKuya Account will be subject to verification, including, but not limited to, validation against third-party databases or official government or other legal documents that confirm the User’s identity, location, and other relevant matters. Subject to the existing law and regulations on data privacy, by registering a MyKuya Account, a User authorizes MyKuya, directly or through third parties, to require submission of documents and information and make inquiries necessary to validate a User’s identity, location, ownership of e-mail address and credit card accounts registered with MyKuya, and other related matters. When requested by MyKuya, a User must provide timely and complete information necessary for the verification and validation of the User’s MyKuya Account.
3.7 USERNAMES AND PASSWORDS
When a User registers for a MyKuya Account, the User will be asked to identify a username and password for the MyKuya Account. The User is entirely responsible for safeguarding and maintaining the confidentiality of the username and password and agrees not to share such username and password with any person who is not authorized to use the Account. The User authorizes MyKuya to assume that any person using the Site or Sites with the User’s username and password has been duly authorized by the User. The User agrees to notify MyKuya immediately if it is suspected or it becomes known by the User that there has been unauthorized access of Account or any unauthorized use of the username and/or password for the User’s MyKuya Account.
3.8 REVOCATION AND CLOSURE OF ACCOUNT
4. RESPONSIBILITIES OF USERS, CLIENTS, AND MYKUYA PARTNERS
Section 4 discusses some of the responsibilities of Users when using the Site and Site Service to find, evaluate, and enter into a Service Contract with a MyKuya Partner or Client.
4.1 RESPONSIBILITIES OF USERS
At all times, Users are solely responsible for evaluating and determining the suitability of any Project, Client or MyKuya Partner. Users 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 information and content;
(b) determining the suitability of other Users for a Service Contract through the conduct of interviews, vetting, background checks, or other similar actions;
(c) assessing whether or not to enter into a Service Contract with another User and for verifying any information about another User, feedback, comments, ratings and other relevant information from other Users
(d) negotiating, agreeing to, and executing any terms or conditions of Service Contracts.
4.1.1 RESPONSIBILITIES OF CLIENTS
Users who are Clients shall additionally be responsible for:
(a) ensuring that services required to be rendered by MyKuya Partners are possible and legal;
(b) paying for services rendered by MyKuya Partners and withholding and remitting to the appropriate government agency any taxes and/or mandatory contributions, if applicable;
(c) obtaining the appropriate government registration and permits, in the case of Clients engaged in business and who require MyKuya Partners services in relation with their business.
4.1.2 RESPONSIBILITIES OF MYKUYA PARTNERS
MyKuya Partners acknowledge and agree to be solely responsible for:
(a) performing the services required by Clients in accordance with the agreement entered into with Client;
(b) invoicing and tax reporting and payment associated with payments received from Clients, without any obligation to withhold any taxes on the part of MyKuya;
(c) obtaining the appropriate government registration and permits in relation with the performance of services;
(d) paying the compensation or service fees of employees and subcontractors, respectively, engaged to perform the services required by Clients and remitting to the appropriate government agency the corresponding withholding taxes and/or mandatory contributions;
(e) securing insurance covering liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law.
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.
4.2. MARKETPLACE FEEDBACK AND USER CONTENT
Users hereby allow MyKuya to publish on the Site or Sites, on their behalf and solely for the convenience of Users, information about the User, such as User identity, User credentials, feedback, rating, and comments of other Users, geographical location, among other things. 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.
Users 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 or Sites. Users acknowledge and agree that feedback results for Users, including Users 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. Users 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. Users 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. Users agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
5. MYKUYA FEES
Section 5 describes what fees Users agree to pay to MyKuya in exchange for MyKuya allowing the use of the Site and Site Services.
5.1 MYKUYA PARTNERS PAYMENTS
MyKuya Partners pay MyKuya fees (“MyKuya Fees”) for using the Site’s or Sites’ communication, charging, reporting, dispute resolution and payment features. When a Client pays a MyKuya Partner for services and/or other expenses pertaining to a Project, MyKuya will credit the MyKuya Partner’s Account for the full amount paid by Client, and then deducts and disburses to MyKuya the corresponding MyKuya Fees. The MyKuya Partner hereby irrevocably authorizes and instructs MyKuya to deduct the MyKuya Fees from the MyKuya Partner Account and disburse the said MyKuya fees to MyKuya.
5.2 ADMINISTRATION FEES
MyKuya Partners may pay MyKuya an administration fee (“Administration Fee”) to cover costs for the maintenance of the Site or Sites and administration of payments via the disbursement method chosen by MyKuya Partner. The Administration Fee corresponding to each disbursement method is listed under Fees and Schedules on the Site and is subject to revision as and when MyKuya may deem necessary.
5.3 PAYMENT PROCESSING AND ADMINISTRATION FEES
Clients pay MyKuya fees for payment processing and administration related to the MyKuya Partner Fees that Clients may pay to MyKuya Partners pursuant to a Service Contract between the Client and MyKuya Partner.
5.4 GOVERNMENT CHARGES
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 connect with Users. 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 User ratings and feedback, including Composite Information.
5.6 PAYMENT METHODS
Payment of the MyKuya Fees and/or Administration Fees shall be through a valid Payment Method such as a credit card, or any other Payment Method which may be acceptable to MyKuya.
In case of payment through credit card, Users must provide the necessary credit card account and shall authorize MyKuya to:
(a) run the necessary credit card authorizations;
By providing Payment Method information through the Site or Sites and authorizing payments through the chosen Payment Method, User represents, warrants, and covenants that:
(a) User is legally authorized to provide such information;
(b) User is legally authorized to make payments using the chosen Payment Method;
(c) the Client Team Member or MyKuya Partner Team Member providing Payment Method Information and authorizing payments is an employee, agent, or representative of the User who is duly authorized by the company or person to undertake said actions;
(d) the foregoing actions do not violate the terms and conditions applicable to User’s use of such Payment Method or applicable law.
Because the use of any Payment Method may be limited by applicable law or by written agreement with User’s financial institution, MyKuya is not liable to any User if MyKuya does not complete a transaction as a result of such limitation or if the applicable financial institution fails to honor any credit or debit to or from an account associated with such Payment Method.
6. NON-BYPASS OF MYKUYA
Section 6 discusses a User’s agreement to engage with a Client or MyKuya Partner only through MyKuya for two years from the date of connection with such Client or MyKuya Partner through the Site or Sites.
6.1 ACTS OF BYPASS
Users acknowledge and agree that for twenty-four (24) months from the time a User connects with another User through the Site or Sites (“Non-Bypass Period”), Users shall use the Site or Sites as the exclusive channel to request for and/or offer work or services and pay for and/or receive all payments for work or services with such other User. During the Non-Bypass Period, the affected Users may not directly transact with each other or may not transact through other channels or intermediaries other than MyKuya.
Submission through means other than the Site or Sites of proposals to, or solicitation from other Users who were identified by the proposing or soliciting User through the Site or Sites.
Acceptance of proposals or solicitations through means other than the Site or Sites by Users who were identified by the proposing or soliciting User through the Site or Sites.
Execution of contracts, invoicing, or receipt of payments outside the Site or Sites by Users who were previously connected through the Site.
Declaration of, and/or invoicing on the Site for payment in an amount lower than that actually agreed between Users.
Referral of a User identified by the referring User on the Site to a third party who is not a User of the Site for purposes of making or receiving payments outside the Site or Sites.
Users who commit acts of bypass agree to be liable to MyKuya for liquidated damages in the amount of PhP1,000,000.00.
Users agree to notify MyKuya immediately if another User suggests commission of the foregoing acts of bypass or other similar acts.
7. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND MYKUYA PARTNER
Section 7 discusses the nature of the relationship between a Client and MyKuya Partner.
7.1 SERVICE CONTRACT BETWEEN CLIENT AND MYKUYA PARTNER
If a Client and a MyKuya Partner connect through the Site or Sites and enter into a Service Contract with respect to a Project, such Service Contract pertains to a contractual relationship directly and exclusively between the Client and MyKuya Partner. Users acknowledge and agree that MyKuya is not a party to such Service Contracts, that the execution of a Service Contract between Users will not, under any circumstance, create an employment, partnership or joint venture, or other service relationship between MyKuya and the Users.
7.2 DISPUTES AMONG USERS
Users hereby release MyKuya, its subsidiaries, affiliates, officers, directors, agents, partners, 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. This release includes, but is not limited to, disputes regarding the performance and quality of MyKuya Partner Services provided to Client by a MyKuya Partner and non-payment by a Client for MyKuya Partner Services rendered.
8. TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS
Section 9 discusses the intellectual property rights of MyKuya.
8.1 The MyKuya names and logos and all related names, design marks and slogans are the trademarks or service marks of MyKuya.
8.2 MyKuya is the owner of all the materials: illustrations, photographs, video or audio sequences or any graphics published on the Site or Sites. Those works are protected by copyright laws and treaties around the world. All such rights are reserved and may not be used without MyKuya’s expressed approval in writing.
9. WARRANTY AND LIMITATION OF LIABILITY
Section 10 discusses MyKuya warranty and liability limitation to Users.
9.1 MYKUYA WARRANTY
9.2 LIMITATION OF LIABILITY OF MYKUYA
your use of or your inability to use MyKuya Site or Sites or Site Services;
delays or disruptions in MyKuya Site or Sites or Site Services;
viruses or other malicious software obtained by accessing, or linking to MyKuya Site or Sites or Site Services;
glitches, bugs, errors, or inaccuracies of any kind in MyKuya Site or Sites or Site Services;
damage to your hardware or device from the use of the MyKuya Site or Sites or Site Services;
the content, actions, or inactions of third parties’ use of the MyKuya Site or Sites or Site Services;
a suspension or other action taken with respect to User’s Account;
User’s 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 MyKuya Site or Sites; and
ADDITIONALLY, IN NO EVENT WILL MYKUYA, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD PARTY 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 9 discusses User’s agreement to pay for any costs or losses MyKuya may incur as a result of a claim brought against MyKuya related to User’s use of the Site or Site or Site Services.
“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 User 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 User or a third party or other User.
11. AGREEMENT TERM AND TERMINATION
Users acknowledge and agree that the value, reputation, and goodwill of the Site or Sites depend on transparency of User’s Account status to all Users. Users therefore agree as follows: IF MYKUYA DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE A USER’S ACCOUNT, MYKUYA HAS THE RIGHT, WHERE ALLOWED BY LAW, TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH SUCH USER TO INFORM THEM OF THE USER’S CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR A USER’S ACCOUNT CLOSURE. USERS 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.
11.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if a User’s Account is closed for any reason, a User will no longer have access to data, messages, files, or other materials a User keeps on the Site and that any closure of a User’s Account may involve deletion of any content stored in such User’s 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 such User’s Account information.
11.3 DISPUTE RESOLUTION
Section 13 discusses additional terms of the agreement between User and MyKuya.
12.1 ENTIRE AGREEMENT
12.2 MODIFICATIONS; WAIVER
12.5 FORCE MAJEURE
MyKuya and the User will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
12.6 GOVERNING LAW/CHOICE OF LAW