Terms & Conditions
1. AGREEMENT TO THE API TERMS.
By registering a software application, website, or product you create or service that you offer (a “Developer Application”), you agree to be bound by the API Terms. You must read, agree to, and accept all of the terms and conditions contained in the API Terms in order to use the Beny API. Additionally, you agree to and accept the Beny Terms of Service.. If you disagree with any of the terms of the API Terms or the Beny Terms of Service, Beny does not grant you a license to use the Beny API. If you are using the Beny API on behalf of a company or any other entity, you represent and warrant that you have full legal authority to register a Developer Application on behalf of that entity and bind it to the API Terms and the Beny Terms of Service. If you are not authorized, you may not accept the API Terms or register a Developer Application for someone else.
Capitalized terms not defined in the API Terms have the meanings given to them in the Beny Terms of Service.
Beny API. A set of web-based services providing programmatic access to Beny systems and data, together with all updates, revisions, and copies thereof. This also includes any associated tools and documentation that Beny makes available under the API Terms.
Beny Content. Any data, content, or executables of or associated with the Beny API or Site Services (as defined in the Beny Terms of Service). This includes all Beny User Data.
Beny User Data. Any content, information, and other data about persons who use the Beny services received or collected by Developer through any instance of the Developer Application, the Beny API, or otherwise in connection with the API Terms.
3. DEVELOPER’S USE OF THE Beny API.
Developer wishes to use and access the Beny API in connection with the development and distribution of a Developer Application and agrees to the additional requirements herein. Developer and Beny hereby agree as follows:
Developer Registration. Before using the Beny API, Developer must provide accurate information identifying its organization and the individual representative who will serve as a point of contact for Beny. The registration may be completed and accepted by Beny on the Site. Upon successful registration, Beny shall make Access Credentials available to Developer. “Access Credentials” means the necessary security keys, secrets, tokens, and other credentials to access the Beny API. All activities that occur using your Access Credentials are your responsibility. Access Credentials are specific to you and are confidential information. Keep them secret. You must not sell, transfer, or sublicense the Access Credentials. Do not try to circumvent them and do not require your users, employees, contractors, or agents to obtain their own Access Credentials to build, maintain, or use the Developer Application. Developer itself must request any Access Credentials to be used by any employee, contractor, or agent of Developer.
Permitted Uses of the Beny API. Your use of the Beny API is limited to the purpose of facilitating your own or your Users’ use of the Beny Site and Site Services. Some examples of permitted uses of the Beny API would be to create Applications that:
- Allow Beny Users to search for and browse Beny job postings with a customized interface;
- Allow Beny Users to manage active contracts;
- Allow Beny Users to apply to jobs on Beny; or
- Allow Beny Users to manage invoices, billing, and communications on Beny.
Prohibited Uses of the Beny API. Developer must never do any of the following:
- Use the Beny API in any Developer Application that includes adult content, promotes gambling, involves the sale of tobacco or alcohol to persons under 21 years of age, promotes or offers malicious code, or violates any applicable law or regulation.
- Use the Beny API to retrieve Beny Content that is then aggregated with third-party search results in such a way that a user cannot attribute the Beny Content to Beny (such as aggregated search results).
- Distribute or allow access to the Beny API to anyone other than the entity on whose behalf Developer agreed to these Terms, or create an application programming interface that enables access to Beny Content
Prohibited Uses/Functions of Developer Application. Developer and the Developer Application must not do the following:
- Implement features or business practices that unlawfully harm the professional reputation or relationships of Beny or Beny users.
- Use Beny Content received from the Beny API in any manner that facilitates bias, discrimination, or data “redlining,” whether intentional or inadvertent, based on sensitive or protected categories or characteristics.
- Impersonate Beny or an Beny user or intentionally misrepresent Beny or any Beny user or other third party when requesting or publishing information.
- Obfuscate or hide any Beny buttons, sign-in functionality, or consent or authorization flows from your users.
- Proxy, request, or use Beny account user names or passwords in any fashion for any reason.
- Request from the Beny API more than the minimum data fields and application permissions the Developer Application needs.
- Try to exceed or circumvent limitations on calls and use. This includes creating multiple Developer Applications for identical, or largely similar, purposes.
- Download, scrape, post, or transmit, in any form or by any means, any part of the Site or Site Services, including data retrieved by web browser plugins.
- Copy, reformat, reverse-engineer, or otherwise modify the Beny API, Access Credentials, the Site, the Site Services, or any Beny Content.
- Promote or operate any product or service that competes with the Beny Site Services.
- Interfere with or disrupt Beny services, Beny servers or networks connected to Beny services, or disobey any requirements, procedures, policies or regulations of networks connected to the Beny Site or Site Services.
- Engage in any conduct that fails to comply with, or is otherwise inconsistent with, any agreement between Developer and Beny or any written instructions provided by Beny.
4. API LICENSE
Using the Beny API. As part of the API Terms, Beny grants you a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted herein) license to use the Beny API solely to do the following and subject to the restrictions set forth in the API Terms:
- Enable your Application to interact with Beny’s databases to retrieve information necessary to facilitate your own or Your Users’ use of the Site and Site Services through your Application;
- Make limited intermediate copies of Beny Content only as necessary to perform activity permitted under the API Terms. You must delete all intermediate copies when they are no longer required for the purpose for which they were created;
- Rearrange or reorganize Beny Content within your Application; and
- Display in your Application Beny Content consistent with this Agreement.
- Access Credentials. Beny will provide you with Access Credentials that permit you to access the Beny API. The Access Credentials are the property of Beny and may be revoked if you share them with any third party (other than as allowed in the API Terms), if they are compromised, if you violate the API Terms or the Beny Terms of Service, or if Beny terminates the API Terms.
- API Call Limitations. The number of API calls you will permitted to make during any given time period may be limited. Beny will determine call limits based on various factors, including the ways your Application may be used or the anticipated volume of use associated with your Application. Beny may, in its sole discretion, charge you for API calls that exceed the call limits or terminate your access to the Beny API in accordance with Section 17 (Suspension and Termination). Unused calls will not roll over to the next day or month, as applicable
At its discretion, Beny may require or offer Certification for certain Applications. Certification will consist of confirmation by Beny or a third party it designates that your Application’s technology complies with the API Terms and the Beny Terms of Service. You will be responsible for all costs associated with certification and any modifications necessary to meet the certification requirements and you may not be permitted to access the Beny API in certain cases until certification is complete. At Beny’s discretion, future modifications of your Application or use or display of Beny Content may be subject to re-certification. If Beny requires certification, your failure to maintain certification is cause for immediate termination of the API Terms.
6. DATA USE.
- Obligations to Beny. Developer may only use, disclose, and otherwise process Beny User Data in accordance with the written instructions of Beny and applicable laws, rules and regulations.
- Prohibited Uses. Developer will not:
- Use Beny Content for any purpose except to the extent necessary for (1) the purpose of processing and supporting a specific transaction for the applicable Beny user or (2) the purpose of providing services to Beny.
- Use Beny Content for any research or publication purpose without prior written consent and a license from Beny to research or publish, as applicable, Beny Content.
- Use Beny Content for any other purpose (e.g., for Developer’s own benefit or for the benefit of any other entity or person).
- Use Beny Content for user profiling purposes or for advertising purposes.
- Sell, lease, sublicense, or otherwise transfer, directly or indirectly, Beny Content to any third party.
- Augment, commingle, or supplement Beny Content with personally identifiable or confidential information (including any mobile device identifier or other unique identifier that identifies any particular user, browser, computer or device) from any third-party source.
- Use the user identification or authentication codes connected to any Beny user to disclose information related to that user to any third party.
7. DATA STORAGE.
Except as provided in the API Terms, Developer may not copy or store any Beny Content, or any information expressed by or representing Beny Content (such as hashed or otherwise transformed data).
- Authentication Tokens. Developer may store any Developer Application-specific alphanumeric user identification codes that Beny provides to Developer for identifying individual users of the Developer Application or any tokens that Beny provides to Developer when an Beny user authenticates the Developer Application for the Beny user’s account.
- Cached Content. Solely for the purpose of improving user experience, Developer may cache Beny Content for no more than twenty-four (24) hours.
- Deletion. Developer must promptly and securely delete all Beny User Data collected from Beny users upon request of the Beny user, when the Beny user deactivates or uninstalls the Developer Application, when the Beny user closes their account with Developer, and before, when possible, or promptly upon termination of the API Terms. Developer will promptly and securely delete all Beny Content after completion of all activities reasonably necessary to operate or maintain the Developer Application and upon termination of the API Terms.
8. USER CONSENT AND AGREEMENT.
- User Consent. Before obtaining information from Beny users, you must obtain their informed consent by telling them what information you collect and how it will be used, stored or shared, and by taking any additional steps required by law or regulation.
9. DATA SAFEGUARDS.
Developer will protect Beny User Data in accordance with all applicable laws. Your network, operating system, and software of your web servers, databases, and computer systems (collectively “Systems”) must be properly configured to securely operate the Developer Application and Beny User Data. The Developer Application must use reasonable security measures to protect any Beny User Data and any elements or components of the Beny API. You shall not architect, design, or select Systems in a manner to avoid these obligations. You must promptly report to Beny at email@example.com comany security deficiencies in, or intrusions into, your Systems that you discover to Beny. You will work with Beny to correct any security deficiency and disconnect any intrusions or intruders as soon as practicable upon discovery of any such deficiency or intrusion. In the event of any security deficiency or intrusion involving the Developer Application or Beny User Data, you will make no public statements without prior written and express permission from Beny in each instance, unless otherwise required by law.
- ACCESS TO THE BENY API.
Subject to the API Terms, Beny may, in its sole discretion, make specific instances or versions of the Beny API available to Developer for use in connection with Developer Applications. Beny may terminate such access to the Beny API, in whole or certain features, functions, or services thereof, for convenience, at any time. The Beny API will be deemed to be a part of the Site Services as set forth in the Beny Terms of Service.
- BENY API SUPPORT AND CHANGES.
Beny may provide technical support, upgrades, or modifications of the Beny API in Beny’s sole discretion. Beny may cease providing technical support, upgrades, or modifications of the Beny API at any time and for any reason without notice or liability to Developer. Beny may release new versions of the Beny API and require Developer to use the new version of the Beny API. Developer’s use of new releases or versions of the Beny API will be acceptance of all modifications of the Beny API.
- INTELLECTUAL PROPERTY.
- Beny Materials. Beny owns all rights, title, and interest, including all intellectual property rights, in and to, the Beny API; all elements, components, and executables of the Beny API; and all elements, components, and executables of the Site Services (collectively, the “Beny Materials”). The only exception to this is any information or Content which you as an Beny user have licensed to Beny under the Beny Terms of Service. Except for the express licenses granted in the API Terms, Beny does not grant you any right, title, or interest in the Beny Materials. Developer agrees to take such actions as Beny may reasonably request to perfect Beny’s rights to the Beny Materials.
- Developer Property. Except to the extent the Developer Application contains Beny Materials, Beny claims no ownership or control over your Developer Application. During the term of the API Terms you hereby grant Beny a paid-up, royalty-free, non-exclusive, worldwide, irrevocable right and license, under all of your intellectual property rights, to: (1) use, perform, and display the Developer Application and its content for purposes of marketing, demonstrating, and making the Developer Application available to Beny users; (2) link to and direct Beny users to the Developer Application; and (3) sublicense the foregoing rights to our affiliates.
- Feedback. Developer may, but is not required to, provide suggestions, comments, ideas, or know‐how, in any form, to Beny related to Beny products, services or technology (“Feedback”). To the extent Developer provides Feedback to Beny, Developer grants Beny the right to use such Feedback without any right to compensation from Beny.
- INDEPENDENT DEVELOPMENT BY Beny.
Developer understands and acknowledges that Beny may be independently creating applications, content, and other products or services that may be similar to or competitive with the Developer Application. Nothing in the API Terms will be construed as restricting or preventing Beny from creating and fully exploiting any applications, content, and other products or services, without any obligation to Developer. This paragraph will survive the termination or expiration of the API Terms.
- CONFIDENTIAL INFORMATION.
Developer agrees that the content of the Beny API, and any Beny Content that by its nature should reasonably be known to be confidential, is deemed to be confidential information of Beny and Developer will maintain the same in strict confidence and not disclose the same to any third party (other than employees, agents and contractors of Developer for the sole purpose of providing services to Developer to complete work permitted hereunder) or use the same for any purpose other than its performance under the Agreement. To the extent that you retain any Beny Content after the termination or expiration of the API Terms, this paragraph will survive the termination or expiration of the API Terms.
The provisions of the API Terms will control over any inconsistent provisions of the Beny Terms of Service, and the Beny Terms of Service, as modified and supplemented by the API Terms, will remain in full force and effect. Any “shrink wrap” or “click wrap” license agreement or any other terms and conditions associated with Developer’s Application is null and void, is not applicable hereunder, and is expressly excluded.
Beny currently provides the Beny API without charge. However, Beny reserves the right, at Beny’s sole discretion, to charge fees for future use of or access to the Beny API. Developer may not charge any fee to Beny users for the Developer’s Application without the express written permission or agreement of Beny.
- TERM AND TERMINATION.
- Term. The term of the API Terms will commence on the date upon which you agree to the API Terms and will continue until terminated as set forth below.
- Developer’s Termination Rights. Developer may terminate the API Terms by discontinuing use of the Beny API and returning all Beny Content, including Beny User Data.
- Suspension and Termination. Beny may suspend or terminate Developer’s use of the Beny API at any time if we believe you have violated the API Terms or Beny Terms of Service, or if we believe the availability of the Beny API in the Developer Application is not in our or our users’ best interests. Immediately upon termination of the API Terms, all licenses granted to Developer will cease and all data retrieved from the Beny API or Site Services must be deleted.
- Effect of Termination. Upon termination of these Terms:
- all rights and licenses granted to Developer will terminate immediately;
- Developer will promptly and securely destroy Beny Content in your possession or control;
- neither party is liable to the other party solely because the API Terms have been terminated;
- unless we agree otherwise in writing or as stated explicitly in the API Terms, Developer must permanently delete all Beny Content and Beny User Data or other data which you stored pursuant to your use of the Beny API. Beny may require that you certify in writing your compliance with this section; and
- Beny will make commercially reasonable efforts to remove all references and links to the Developer Application from the Site (Beny has no other obligation to delete copies of, references to, or links to the Developer Application).
- WARRANTIES AND LIABILITIES.
- Disclaimer of Warranties. BENY PROVIDES THE BENY API, BENY CONTENT, AND ALL OTHER INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BENY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. BENY DOES NOT GUARANTEE THAT THE BENY API WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE BENY API MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. BENY DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, BENY DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE Beny API DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
- Limitations of Liability. BENY AND OUR EMPLOYEES, AGENTS, SHAREHOLDERS, OR DIRECTORS, SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, PROFIT, REVENUE OR DATA TO YOU OR ANY THIRD PERSON ARISING FROM YOUR USE OF THE BENY API. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (i) YOU BASE YOUR CLAIM ON CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL THEORY, (ii) WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES, OR (iii) THE LIMITED REMEDIES PROVIDED IN THIS SECTION FAIL OF THEIR ESSENTIAL PURPOSE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY DAMAGE THAT Beny MAY CAUSE YOU INTENTIONALLY OR KNOWINGLY IN VIOLATION OF THE API TERMS OR APPLICABLE LAW.
- Indemnification. You will defend, hold harmless, and indemnify Beny (and our and their respective employees, agents, shareholders, and directors) from any claim or action brought by a third party, including all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent resulting from, alleged to have resulted from, or in connection with: (i) your breach of your obligations herein; or (ii) the violation of any copyright, trademark, service mark, trade secret or United States patent by the Developer Application.
- Relationship of the Parties. The parties are agreeing to the API Terms as independent contractors, and the API Terms will not be construed to create a partnership, joint venture or employment relationship between them. Neither party is authorized to or will represent itself to be an employee or agent of the other or enter into any agreement on the other’s behalf of or in the other’s name.
- Assignability. You may not assign the API Terms, nor any of your rights or obligations hereunder, without Beny’s prior written consent. Beny may freely assign the API Terms without your consent. Any attempted assignment or transfer in violation of this section will be null and void. Subject to the foregoing restrictions, the API Terms will inure to the benefit of successors and permitted assigns of the parties.
- Severability. If and to the extent any provision of the API Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or enforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
- Choice of Law and Venue. The API Terms and any controversy, dispute or claim arising out of or relating to the API Terms shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). With respect to any User located outside the United States, the User agrees that the California state courts of Santa Clara County (or, if there is federal jurisdiction, the United States District Court for the Northern District of California) will have jurisdiction and venue with respect to any claim arising out of or relating to the API Terms and consents to the personal jurisdiction and venue of those courts.
- No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
Miscellaneous. The API Terms set forth the entire agreement and understanding of the parties relating to their subject matter and cancel and supersede any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them. No modification or amendment to the API Terms shall be binding upon Beny unless in a written instrument signed by a duly authorized representative of Beny.
Contributions, Tips, and Expense Payment Agreement
If Client and Vendor enter into a Service Contract, if Client makes a tip or expense payment to Vendor this Contributions, Tips, and Expense Payment Agreement (“Agreement”) applies.
To the extent permitted by applicable law, we may modify this Agreement without prior notice to you, and any revisions to the Agreement will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.
This Agreement hereby incorporates by reference the Terms of Service. Capitalized terms not defined in this Agreement are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site.
- DIGITAL SIGNATURE
By clicking to make a Contribution or make a tip and expense payment, Client and Vendor are deemed to have executed this Agreement electronically, effective on the date Vendor or Client clicks to make a Service Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as amended from time to time (the “E-Sign Act“). Doing so constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement.
- MAKING BENY ACCOUNT CONTRIBUTIONS
Client Super Administrator User (employer agent) defines the monthly contribution amounts for their Client Users. Beny impounds monthly contribution funds via ACH from Client’s connected bank account. Client authorized Beny to impound contribution funds by entering and saving contribution amounts.
- MAKING OR RECEIVING A TIP OR EXPENSE PAYMENT
Client may also make a tip, expense, or other miscellaneous payment to Vendor using the Site. To make such a payment to a Vendor, Client must follow the instructions and links on the Site and provide the information requested. If Client clicks to pay such a payment to Vendor, Client irrevocably instructs Beny to charge Client’s payment method and/or debit Client’s User Account. .
- INSTRUCTIONS TO PAY IRREVOCABLE
Client’s instruction to Beny and its wholly owned subsidiaries to pay a Vendor is irrevocable. Such instruction is Client’s authorization to transfer funds to Vendor from the Client Beny Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected, and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Vendor, Beny will transfer funds to the Vendor and that Beny, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Beny or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.
- RELEASE AND DELIVERY OF AMOUNTS IN BENY ACCOUNT
In addition, Beny is authorized to and will release applicable portions of the Client Beny Account (each portion, a “Release”) to the Vendor Connected Account, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. The amount of the Release will be delivered to the Vendor Connected Account, in accordance with Vendor’s and Client’s instructions, as applicable, these instructions, and the other Terms of Service.
5.1 RELEASE CONDITIONS
As used in these instructions, “Release Condition” means any of the following:
- Client and Vendor have submitted joint written instructions for a Release.
- Client has approved all or a portion of the Vendor’s Invoice. This Release Condition will only apply to amounts invoiced by the Vendor that Client has approved. Client’s failure to dispute an invoice, or a portion of an invoice, within the Dispute Period pursuant to this Agreement, or as otherwise provided in these instructions, constitutes approval by the Client for purposes of this Release Condition.
- Beny reviews Client’s dispute of amounts invoiced on Vendor’s Invoice for a Service Contract pursuant to this Agreement and determines that the time is related to the Service Contract requirements or Client’s instructions.
- Client initiates a Dispute with respect to Vendor’s invoice for a Service Contract pursuant to this Agreement and Client and Vendor resolve the dispute without the assistance of Beny.
- Issuance of a final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
- We believe, in our sole discretion, that fraud, an illegal act, or a violation of Beny’s Terms of Service has been committed or is being committed or attempted, in which case Client and Vendor hereby irrevocably authorize and instruct Beny to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
- PAYMENT PROTECTION
Beny provides limited payment protection to Users as detailed in this Section 6 (“Payment Protection“).
6.1 FOR VENDORS
In the rare event that a Vendor’s Client does not make payment for legitimate services performed by a Vendor, Beny will provide Payment Protection to the Vendor as detailed in this Section 6.1 as a membership benefit to foster fairness, reward loyalty, and encourage the Vendor to continue to use the Site Services for their business needs. Payment Protection will be offered to a Vendor only if all of the following criteria are met in Beny’s sole discretion:
- Both Client and Vendor must have used the Beny messaging feature to communicate acceptance of the Service Contract, as part of the terms.
- Client must have an Account in good standing and a valid and verified Payment Method at the start of the Service Contract, and must agree to pay for the service.
- Vendor’s Account must be in good standing.
- Within five days after notification of rejected or unpaid invoice, Vendor must submit a Dispute specifically identifying the documented work not otherwise paid for by their Client.
Beny will investigate and determine in its sole discretion whether the above terms and conditions are met.
Payment Protection does not apply to: (a) invoiced for work not agreed to or authorized by Client; (b) tip payments; (c) refunds; (d) manual time; (e) time added after Client has disputed a billing and before the resolution of that dispute; (f) hours billed by Vendors whom Beny believes, in its sole discretion, to be aware of or complicit in another User’s violation of this Agreement or the other Terms of Service; or (g) Vendors whom Beny believes, in its sole discretion, to be involved in actual fraudulent activities or abuse of this Payment Protection.
The maximum amount protected by Beny to Vendor under the Payment Protection for Vendors is the lesser of: (i) the amount of the contract terms; (iii) the reasonable and customary amount for the same service on the Site in Vendor’s area (such determination to be made in Beny’s sole discretion). The maximum amount of coverage under the Payment Protection for Vendors for the life of a relationship between the same Client and Vendor is $250, whichever is less.
6.2. FOR CLIENTS
Vendor authorizes and instructs Beny to adjust the invoice to remove invoiced charges that are not (a) clearly related to either the Service Contract terms or work agreed to by the Client, and (b) within the hours authorized in the Service Contract for the week, subject to and conditioned on the following terms:
- Client must have an Account in good standing and a valid and verified default Payment Method, and Client must agree to automatically pay for agreed upon changes to the invoice. Client must submit a Dispute specifically identifying the amount billed that is not clearly related to either the Service Contract requirements or Client instructions in the Beny messaging feature.
Beny will investigate and determine in its sole discretion whether the above terms and conditions are met.
Protection for Clients only protects Client from the obligation to pay for Vendor’s work if the work is not clearly related to the Service Contract requirements or Client instructions. Payment Protection for Clients does not create any warranties, express or implied, beyond those expressly stated in the User Agreement.
- DISPUTES BETWEEN CLIENT AND VENDOR
7.1 DISPUTES INITIATED VIA THE PLATFORM
For Service Contracts, Client may dispute Vendor’s invoice during the five days following the date the service was performed. Once the Dispute Period expires, Client will be deemed to have accepted the Vendor Services and Vendor Fees and can no longer dispute them. Disputes handled by Beny can only address the amounts billed, not the quality of the Vendor Services or the Work Product provided under Service Contracts. Client and Vendor are encouraged to resolve the dispute between themselves. If Client and Vendor fail to come to a resolution, Beny will promptly investigate the invoice and determine, in our sole discretion, whether an adjustment is appropriate consistent with Client’s and Vendor’s instructions. Beny’s determination of such dispute shall be final.
If Client’s payment is unsuccessful, Beny will review the invoice to determine if it qualifies for Payment Protection. If Beny, in its sole discretion, determines that the invoice qualifies for Payment Protection, it will make payment to the Vendor to cover the invoice on behalf of the Client. In the event that Beny makes payment on behalf of the Client, Vendor hereby irrevocably assigns any right, title or interest in any payment from Client to Beny for the amount paid by Beny.
Client may choose to approve Vendor’s invoice prior to the end of the Dispute Period thereby releasing payment for the invoice. If Client releases payment to Vendor prior to the end of the Dispute Period, Client certifies that it approves the invoice, accepts the work, and waives any further right to dispute the work or invoice through Beny’s Dispute Assistance (defined below).
You acknowledge and agree that Beny or its Affiliates may, at its sole discretion, withhold or delay payment in the event of dispute between a Client and a Vendor. You further acknowledge and agree that Beny and Affiliates are not and will not be a party to any dispute between a Client and Vendor over an invoice or Service Contract.
7.2 BENY DISPUTE ASSISTANCE
Non-binding dispute assistance (“Dispute Assistance”) is available within 30 days of the date of the last release of funds from Client to Vendor. If Client or Vendor contacts Beny via support ticket within 30 days of the date of the last payment from Client to Vendor and requests non-binding dispute assistance for any dispute among them (a “Dispute”), Beny will attempt to assist Client and Vendor by reviewing the Dispute and proposing a mutual, non-binding resolution. Beny will only review the 30 days of services performed prior to the date a User requests Dispute Assistance.
- The Beny Disputes team will notify Client and Vendor via ticket by providing a notice of dispute along with a request for information and supporting documentation.
- If both Client and Vendor respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Vendor can choose whether or not to agree to it. If Client and Vendor agree in writing to the proposed resolution, Client and Vendor agree that Beny is authorized and irrevocably instructed to immediately release funds in accordance with the proposed resolution.
- If Client or Vendor rejects Beny’s proposed, non-binding resolution then Client and/or Vendor must pursue the Dispute independently.
- Beny reserves the right to review the Vendor’s work for 30 days prior to the date of the request for Dispute Assistance for compliance with Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct Beny to make appropriate releases to Client if it finds work that clearly does not relate Service Contract requirements or Client instructions or violations of the Terms of Service during its review of the work.
- NO RESPONSIBILITY FOR SERVICES OR PAYMENTS
Beny and Affiliates merely provide a platform for Internet payment services. Beny and Affiliates do not have any responsibility or control over the Vendor Services that Client purchases. Nothing in this Agreement deems or will be interpreted to deem Beny or any Affiliate as Client’s or Vendor’s agent with respect to any Vendor Services, or expand or modify any warranty, liability or indemnity stated in the Terms of Service. For example, Beny does not guarantee the performance, functionality, quality, or timeliness of Vendor Services or that a Client can or will make payments.
WHAT ARE COOKIES?
Cookies are text files, containing small amounts of information, which are downloaded to your browsing device (such as a computer or smartphone) when you visit a website. Cookies can be recognized by the website that downloaded them — or other websites that use the same cookies. This helps websites know if the browsing device has visited them before.
WHAT ARE COOKIES USED FOR?
Cookies do lots of different jobs, like helping us understand how the Site is being used, letting you navigate between pages efficiently, remembering your preferences, and generally improving your browsing experience. Cookies can also help ensure marketing you see online is more relevant to you and your interests.
WHAT TYPES OF COOKIES DOES BENY USE?
The type of cookies used on most websites can generally be put into one of five categories: Strictly Necessary, Performance, Functionality, Tailored Content and Targeting. In order to provide you with the best browsing experience, Beny uses all of these categories on the Site. You can find out more about each cookie category in the sections below.
STRICTLY NECESSARY COOKIES
These cookies are essential, as they enable you to move around the Site and use its features, such as accessing secure areas. Without these cookies, some services you have asked for such as payment submission can’t be provided.
These cookies collect information about how you use the Site, for example which pages you go to most often and if you get error messages from certain pages. These cookies don’t gather information that identifies you. All information these cookies collect is anonymous and is only used to improve how the Site works.
These cookies allow the Site to remember choices you make (such as your user name, language or the region you’re in). For instance, the Site uses functionality cookies to remember your language preference. These cookies can also be used to remember changes you’ve made to text size, font and other parts of pages that you can customize. They may also be used to provide services you’ve asked for such as watching a video or commenting on a blog. The information these cookies collect may be anonymous and they cannot track your browsing activity on other websites.
TAILORED CONTENT COOKIES
Tailored content cookies help the Site provide enhanced features and display content in a way that is relevant to you. These cookies help the Site determine what information to show you based on how you have used the Site previously. These cookies do not track your browsing activity on other websites.
These cookies are used to deliver advertisements that are more relevant to you and your interests. They are also used to limit the number of times you see an advertisement as well as help measure the effectiveness of an advertising campaign. They remember that you have visited a website and this information may be shared with other organizations such as advertisers. This means after you have been to the Site you may see some advertisements about our services elsewhere on the Internet.
HOW LONG WILL COOKIES STAY ON MY BROWSING DEVICE?
The length of time a cookie will stay on your browsing device depends on whether it is a “persistent” or “session” cookie. Session cookies will only stay on your device until you stop browsing. Persistent cookies stay on your browsing device until they expire or are deleted.
FIRST AND THIRD PARTY COOKIES
First party cookies are cookies that belong to us, while third party cookies are cookies that another party places on your browsing device through our Site. For example, Facebook will place a cookie on your browsing device if you click on the Facebook link when browsing the Site.
HOW TO CONTROL AND DELETE COOKIES THROUGH YOUR BROWSER
The browser you are using to view the Site can enable, disable or delete cookies. To do this, follow the instructions provided by your browser (usually located within the “Help,” “Tools” or “Edit” facility). Please note that if you set your browser to disable cookies, you may not be able to access certain parts of the Site for example applying for a job or posting a job. Other parts of the Site may also not work properly. You can find out more information about how to change your browser cookie settings at www.allaboutcookies.org.
By clicking to accept the Terms of Service on the Site or by continuing to use the Site or the Site Services on or after the effective date noted above, you accept and agree to this Agreement. To the extent permitted by applicable law and except as otherwise provided in the Terms of Service, we may modify this Agreement without prior notice to you, and any revisions to this Agreement will take effect when posted on the Site unless otherwise stated. However, we will provide advance notice of any increase in prices or fees affecting current Users. Please check the Site often for updates.
You are entering into this Agreement with Beny (also referred to as “we” and “us”).
- FEES CHARGED TO VENDORS
Pursuant to the User Agreement, we charge Vendors a Service Fee for each payment their Client makes to the Vendor on a Service Contract. Where applicable, Beny may also collect taxes (such as value added tax (VAT) in Europe) on Service Fees.
You hereby authorize us to charge to you and to collect from you (consistent with this Agreement, the User Agreement, or elsewhere in the Terms of Service) any fees, charges, or taxes described in this
2.1 Vendor Fee Pricing
We will charge you a 10% Service Fee based on the total Vendor Fees collected by you from your Client (less any refunds or reversals). The service fee is calculated and subtracted from the amount deposited in your Vendor Connected Account.
Note: Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
If the same Vendor and Client agree to another $600 Fixed-Price Contract, the Service Fee will be calculated as follows:
|Vendor FEES||SERVICE FEE RATE||SERVICE FEES|
|$100||10%||$10 ($100 x 10%)|
|Total Vendor Fees: $100||Total Service Fees: $10|
- CLIENT USER TRANSACTION FEE
Beny charges the Client User a 10% transaction fee at checkout based on the total amount of the Service Contract or the Redemption amount.
Beny reserves the right to change transaction fees, change the features and services included in each Client Membership Plan, change the membership fees or fees for certain premium services or options, or institute new fees at any time, in each case upon reasonable notice posted in advance on the Site for existing Users. No refunds of fees already paid will be given. If Beny exercises its right to cancel a membership, Beny will not refund the membership fee already paid unless otherwise required by law.
Where applicable, Beny may also collect taxes (such as value added tax (VAT) in Europe) on transaction or membership fees and the cost for premium services or features, as set forth in the User Agreement.
- AUTHORIZATION FOR AUTOMATIC PAYMENT OF RECURRING CLIENT CONTRIBUTIONS
Client authorizes Beny to electronically debit their bank account on file and to electronically credit client’s bank account for correct erroneous debits. Client must pay the monthly Client Contributions, if any, through your Client Account via bank account. Initial client contributions are impounded within two business days after contributions have been determined. All updated contributions are impounded within two business days. Ongoing monthly Contributions are impounded from the Client bank account on file based on the date Client specifies each month. If the impound date lands on a non-banking day (ie, Saturday, Sunday or Federal banking holiday), Beny will impound funds on the first business day preceding the original impound date. This authorization will remain in full force until you otherwise notify us that you wish to revoke your authorization by contacting Customer Support, or cancel your Account.
- AUTHORIZATION FOR ACH DEBITS AND CREDITS AND OTHER TRANSACTIONS
If and to the extent permitted by Beny in its sole discretion, Users may pay Vendor Fees, Contributions, Membership Fees, fees for Client Membership Plans, Payment Processing Fees, and other fees owed under the Terms of Service from their designated bank accounts. Subject to Beny’s eligibility requirements, if you elect to pay Vendor Fees or any other amounts owed under the Terms of Service via ACH transfers from your designated bank account, you hereby authorize us to electronically debit and, if necessary, electronically credit your designated bank account via ACH for such amounts pursuant to the Terms of Service, and you agree to comply with the ACH rules issued by the National Automated Clearing House (“NACHA”) and all applicable laws, including, but not limited to, the federal Bank Secrecy Act, the U.S.A. Patriot Act, and economic sanctions overseen by the Office of Foreign Assets Control (OFAC). Your authorization for ACH transfers contained in this Section 5 will remain in full force and effect until you notify us that you wish to revoke your authorization by removing your bank account information from you Profile or by contacting Customer Support. You understand that we require at least one (1) business day’s prior notice in order to cancel your authorization for ACH transfers contained in this Section 6.
You must notify us of any change in your designated bank account’s information at least five (5) business days before any such change by updating your bank account information in your Profile or by contacting Customer Support. If we do not receive notice at least five (5) days before any such change, we may attempt, in our sole discretion, to implement such change prior to any ACH debit or credit transfer performed pursuant to your authorization provided in this Section 6. However, we assume no responsibility for our failure to do so.
You may view a history of your Account transactions by logging in to the Site. You are solely responsible for promptly reconciling your Account transaction history with the transaction records for your bank account. You must notify us of any errors or discrepancies in your Account transaction history (each, an “Error”) within 30 days of when the Error could be viewed in your Account transaction history on the Site. If you do not notify us of an Error within 30 days of when the Error could be viewed in your Account transaction history on the Site, you will forfeit the right to contest the Error, except to the extent such forfeiture is prohibited by applicable law or the NACHA rules.
Subject to the foregoing notice requirement: (a) if and to the extent an Error is caused by us, we will correct the Error and (b) if an Error is caused by you, we may, but are under no obligation to, attempt to correct the Error and will offset any costs we incur from any funds returned to your bank account or your Client Escrow Account, as applicable.
The Client agreeing to these terms (“Customer”), and Beny or any other entity that directly or indirectly controls, is controlled by, or is under common control with Beny (as applicable, “Beny”) (each, a “party” and collectively, the “parties”), have entered into an agreement under which Beny has agreed to provide a marketplace where Clients and Vendors can identify each other and advertise, buy, and sell Vendor Services online, with such other services, if any, described in the agreement (the “Service”) to Customer (as amended from time to time, the “Agreement”).
Unless otherwise agreed to in writing by you and Beny, to the extent Beny processes any EU personal data for you as a controller (as defined by the General Data Protection Regulation (EU) 2016/679) in your role as a Customer as defined in this Global Data Processing Agreement (the “DPA”), this DPA applies. This DPA, including its appendices, supplements the Agreement. To the extent of any conflict or inconsistency between this DPA and the remaining terms of the Agreement, this DPA will govern.
This DPA reflects the parties’ agreement with respect to the processing and security of Customer Data under the Agreement.
2.1 The terms “personal data”, “data subject”, “processing”, “controller”, “processor” and “supervisory authority” have the meanings given in the GDPR, and the terms “data importer” and “data exporter” have the meanings given in the Model Contract Clauses, in each case irrespective of whether the European Data Protection Legislation or Non-European Data Protection Legislation applies.
2.2 Unless stated otherwise:
- “Affiliate” means any entity that controls or is under common control with a specified entity.
- “Agreed Liability Cap” means the maximum monetary or payment-based amount at which a party’s liability is capped under the Agreement.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked or communicated as being confidential at or within a reasonable time following such disclosure; or (ii) should be reasonably known to be confidential due to their nature or the circumstances of their disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party without any restriction; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Customer Account Data” means personal data that relates to Customer’s relationship with Beny, including the names and/or contact information of individuals authorized by Customer to access Customer’s Beny account and billing information of individuals that Customer has associated with its Beny account.
- “Customer Data” means the data entered into the Service by or on behalf of any End User, but excludes Customer Account Data.
- “End User” means an authorized user of the Service under Customer’s account.
- “Customer Personal Data” means the personal data contained within the Customer Data.
- “Data Incident” means a breach of Beny’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data on systems managed by or otherwise controlled by Beny. “Data Incidents” will not include unsuccessful attempts or activities that do not compromise the security of Customer Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
- “EEA” means the European Economic Area, Switzerland, and/or the United Kingdom.
- “European Data Protection Legislation” means, as applicable: (a) the GDPR and its respective national implementing legislations; (b) the Federal Data Protection Act of 19 June 1992 (Switzerland); and/or the United Kingdom Data Protection Act 2018.
- “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
- “Model Contract Clauses” or ”MCCs” means the European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors.
- “Non-European Data Protection Legislation” means, as applicable, the data protection or privacy laws, regulations, and other legal requirements other than the European Data Protection Legislation.
- “Notification Email Address” means the contact email address that you provided to Beny for the purpose of receiving notices from Beny.
- “Security Measures” has the meaning given in Section 7.1.1 (Beny’s Security Measures).
- “Subprocessors” means third parties authorized under this DPA to have logical access to and process Customer Data in order to provide parts of the Service. For clarity, Vendors that clients engage via Beny are not Subprocessors under this DPA.
- “Term” means the period from the DPA’s effective date until the end of Beny’s provision of the Service, including, if applicable, any period during which provision of the Service may be suspended and any post-termination period during which Beny may continue providing the Service for transitional purposes.
3. Duration of this DPA
This DPA will remain in effect until, and automatically expire upon, deletion of all Customer Data by Beny as described in this DPA.
4. Data Protection Legislation
4.1 Application of European Legislation. The parties acknowledge that the European Data Protection Legislation will apply to the processing of Customer Personal Data to the extent provided under the European Data Protection Legislation.
4.2 Application of Non-European Legislation. The parties acknowledge that Non-European Data Protection Legislation may also apply to the processing of Customer Personal Data.
5. Processing of Data
5.1 Roles and Regulatory Compliance; Authorization.
5.1.1 Processor and Controller Responsibilities. If the European Data Protection Legislation applies to the processing of Customer Personal Data, the parties acknowledge and agree that:
- Customer is a controller (or processor, as applicable), of the Customer Personal Data under European Data Protection Legislation;
- Beny is a processor (or subprocessor, as applicable) of the Customer Personal Data under the European Data Protection Legislation; and
- each party will comply with the obligations applicable to it under the European Data Protection Legislation with respect to the processing of that Customer Personal Data.
5.1.2 Responsibilities under Non-European Legislation. If Non-European Data Protection Legislation applies to either party’s processing of Customer Personal Data, the parties acknowledge and agree that the relevant party will comply with any obligations applicable to it under that legislation with respect to the processing of that Customer Personal Data.
5.1.3 Authorization by Third Party Controller. If Customer is a processor, Customer warrants to Beny that Customer’s instructions (defined below) and actions with respect to that Customer Personal Data, including its appointment of Beny as another processor, have been authorized by the relevant controller to the extent required by applicable law.
5.2 Scope of Processing.
5.2.1 The subject matter and details of the processing are described in Appendix 1.
5.2.2 Customer’s Instructions. By entering into this DPA, Customer instructs Beny to process Customer Personal Data only in accordance with applicable law: (a) to provide the Service; (b) as further specified through Customer’s use of the Service; (c) as documented in the Agreement, including this DPA; and (d) as further documented in any other written instructions given by Customer and acknowledged by Beny as constituting instructions for purposes of this DPA (each and collectively, “Customer’s Instructions”) and only for the foregoing purposes and not for the benefit of any other third party. Beny may condition the acknowledgement described in (d) on the payment of additional fees or the acceptance of additional terms.
5.2.3 Beny’s Compliance with Instructions. With respect to Customer Personal Data subject to European Data Protection Legislation, Beny will comply with the instructions described in Section 5.2.2 (Customer’s Instructions) (including with regard to data transfers) unless EU or EU Member State law to which Beny is subject requires other processing of Customer Personal Data by Beny, in which case Beny will inform Customer (unless that law prohibits Beny from doing so on important grounds of public interest) via the Notification Email Address.
6. Data Deletion
6.1 Deletion by Customer. Beny will enable Customer to delete Customer Data during the Term in a manner consistent with the functionality of the Service. If Customer uses the Service to delete any Customer Data during the Term and that Customer Data cannot be recovered by Customer, this use will constitute an instruction to Beny to delete the relevant Customer Data from Beny’s systems in accordance with applicable law. Beny will comply with this instruction as soon as reasonably practicable, unless applicable law requires storage. Nothing herein requires Beny to delete Customer Data from files created for security, backup, and business continuity purposes sooner than required by Beny’s existing data retention processes.
6.2 Deletion on Termination. On expiry of the Term, Customer instructs Beny to delete all Customer Data (including existing copies) from Beny’s systems in accordance with applicable law. Beny will comply with this instruction as soon as reasonably practicable, unless applicable law requires storage. Without prejudice to Section 9.1 (Access; Rectification; Restricted Processing; Portability), Customer acknowledges and agrees that Customer will be responsible for exporting, before the Term expires, any Customer Data it wishes to retain afterwards. If the Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA) are applicable to Beny’s processing of Customer Personal Data, the parties agree that the certification of deletion referenced in Clause 12(1) of the Model Contract Clauses shall be provided only upon Customer’s written request. Nothing herein requires Beny to delete Customer Data from files created for security, backup, and business continuity purposes sooner than required by Beny’s existing data retention processes.
7. Data Security
7.1 Beny’s Security Measures, Controls and Assistance.
7.1.1 Beny’s Security Measures. Beny will implement and maintain technical and organizational measures designed to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access as described in Appendix 2 (the “Security Measures”). As described in Appendix 2, the Security Measures include measures to encrypt personal data; to help ensure ongoing confidentiality, integrity, availability and resilience of Beny’s systems and services; to help restore timely access to personal data following an incident; and for regular testing of effectiveness. Beny may update or modify the Security Measures from time to time provided that such updates and modifications do not degrade the overall security of the Service.
7.1.2 Security Compliance by Beny Staff. Beny will take appropriate steps to ensure compliance with the Security Measures by its staff to the extent applicable to their scope of performance, including ensuring that all such persons it authorizes to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7.1.3 Beny’s Security Assistance. Customer agrees that Beny will (taking into account the nature of the processing of Customer Personal Data and the information available to Beny) assist Customer in ensuring compliance with any of Customer’s obligations in respect of security of personal data and personal data breaches, including if applicable Customer’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR, by:
- implementing and maintaining the Security Measures in accordance with Section 7.1.1 (Beny’s Security Measures);
- complying with the terms of Section 7.2 (Data Incidents); and
- providing Customer with the information contained in the Agreement including this DPA.
7.2 Data Incidents
7.2.1 Incident Notification. If Beny becomes aware of a Data Incident, Beny will: (a) notify Customer of the Data Incident promptly and without undue delay after becoming aware of the Data Incident; and (b) promptly take reasonable steps to minimize harm and secure Customer Data.
7.2.2 Details of Data Incident. Notifications made pursuant to this section will describe, to the extent practicable, details of the Data Incident, including steps taken to mitigate the potential risks and any steps Beny recommends Customer take to address the Data Incident.
7.2.3 Delivery of Notification. Notification(s) of any Data Incident(s) will be delivered to the Notification Email Address or, at Beny’s discretion, by direct communication (for example, by phone call or an in-person meeting). Customer is solely responsible for ensuring that the Notification Email Address is current and valid.
7.2.4 No Assessment of Customer Data by Beny. Beny will not assess the contents of Customer Data in order to identify information subject to any specific legal requirements. Customer is solely responsible for complying with legal requirements for incident notification applicable to Customer and fulfilling any third party notification obligations related to any Data Incident(s).
7.2.5 No Acknowledgement of Fault by Beny. Beny’s notification of or response to a Data Incident under this Section 7.2 (Data Incidents) is not an acknowledgement by Beny of any fault or liability with respect to the Data Incident.
7.3 Customer’s Security Responsibilities and Assessment.
7.3.1 Customer’s Security Responsibilities. Customer agrees that, without prejudice to Beny’s obligations under Section 7.1 (Beny’s Security Measures, Controls and Assistance) and Section 7.2 (Data Incidents):
- Customer is solely responsible for its use of the Service, including:
- making appropriate use of the Service to ensure a level of security appropriate to the risk in respect of the Customer Data;
- securing the account authentication credentials, systems and devices Customer uses to access the Service;
iii. backing up its Customer Data; and
- Beny has no obligation to protect Customer Data that Customer elects to store or transfer outside of the Service.
7.3.2 Customer’s Security Assessment.
- Customer is solely responsible for reviewing Beny’s security processes and evaluating for itself whether the Service, the Security Measures, and Beny’s commitments under this Section 7 (Data Security) will meet Customer’s needs, including with respect to any security obligations of Customer under the European Data Protection Legislation or
Non-European Data Protection Legislation, as applicable.
- Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of Customer Personal Data as well as the risks to individuals) the Security Measures implemented and maintained by Beny as set out in Section 7.1.1 (Beny’s Security Measures) provide a level of security appropriate to the risk in respect of the Customer Data.
7.4 Reviews and Audits of Compliance
7.4.1 Customer’s Audit Rights.
- If the European Data Protection Legislation applies to the processing of Customer Personal Data, Beny will allow Customer or an independent auditor appointed by Customer to conduct audits (including inspections) to verify Beny’s compliance with its obligations under this DPA in accordance with Section 7.4.2 (Additional Business Terms for Reviews and Audits). Beny will contribute to such audits as described in this Section 7.4 (Reviews and Audits of Compliance).
- If the Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA) are applicable to Beny’s processing of Customer Personal Data, without prejudice to any audit rights of a supervisory
authority under such Model Contract Clauses, the parties agree that Customer or an independent auditor appointed by Customer may conduct audits as described in Clause 5(f) and Clause 12(2) of the Model Contract Clauses in accordance with Section 7.4.2 (Additional Business Terms for Reviews and Audits).
7.4.2 Additional Business Terms for Reviews and Audits.
- If the European Data Protection Legislation applies to the processing of Customer Personal Data, Customer may exercise its right to audit Beny under Sections 7.4.1(a) or 7.4.1(b): (1) where there has been a Data Incident within the previous six (6) months or there is reasonable suspicion of a Data Incident within the previous six (6) months or (2) where Customer will pay all reasonable costs and expenses incurred by Beny in making itself available for an audit. Any third party who will be involved with or have access to the audit information must be mutually agreed to by Customer and Beny and must execute a written confidentiality agreement acceptable to Beny before conducting the audit.
- To request an audit under Section 7.4.1(a) or 7.4.1(b), Customer must submit a detailed audit plan to Beny’s Privacy Contact as described in Section 12 (Privacy Contact; Processing Records) at least thirty (30) days in advance of the proposed audit date, describing the proposed scope, duration, and start time of the audit. The scope may not exceed a review of Beny’s compliance with the Model Contract Clauses or its compliance with the European Data Protection Legislation, in each case with respect to the Customer Data. The audit must be conducted during regular business hours at the applicable facility, subject to Beny policies, and may not interfere with Beny business activities.
- Following receipt by Beny of a request for an audit under Section 7.4.1(a) or 7.4.1(b), Beny and Customer will discuss and agree in advance on: (i) the reasonable date(s) of and security and confidentiality controls applicable to any review of documentation; and (ii) the reasonable start date, scope and duration of and security and confidentiality controls applicable to any audit under Section 7.4.1(a) or 7.4.1(b).
- Customer will be responsible for any fees it incurs, including any fees charged by any auditor appointed by Customer to execute any such audit.
- Customer will provide Beny any audit reports generated in connection with any audit under this section, unless prohibited by law. Customer may use the audit reports only to meet its regulatory audit requirements and to confirm compliance with the requirements of the Model Contract Clauses or European Data Protection Legislation. The audit reports, and all information and records observed or otherwise collected in the course of the audit, are Confidential Information of Beny under the terms of the Agreement.
- Beny may object in writing to an auditor appointed by Customer if the auditor is, in Beny’s reasonable opinion, not suitably qualified or independent, a competitor of Beny, or otherwise unsuitable. Any such objection by Beny will require Customer to appoint another auditor or conduct the audit itself.
- Nothing in this DPA will require Beny either to disclose to Customer or its auditor, or to allow Customer or its auditor to access:
- any data of any other customer of Beny;
- Beny’s internal accounting or financial information;
iii. any trade secret of Beny;
- any information that, in Beny’s reasonable opinion, could: (A) compromise the security of Beny systems or premises; or (B) cause Beny to breach its obligations under applicable law or its security and/or privacy obligations to Customer or any third party; or
- any information that Customer or its third party auditor seeks to access for any reason other than the good faith fulfilment of Customer’s obligations under the Model Contract Clauses or European Data Protection Legislation.
7.4.3 No Modification of MCCs. Nothing in this Section 7.4 (Reviews and Audits of Compliance) varies or modifies any rights or obligations of Customer or Beny under any Model Contract Clauses entered into as described in Section 10.2 (Transfers of Data Out of the EEA).
8. Impact Assessments and Consultations
Customer agrees that Beny will (taking into account the nature of the processing and the information available to Beny) assist Customer in ensuring compliance with any obligations of Customer in respect of data protection impact assessments and prior consultation, including if applicable Customer’s obligations pursuant to Articles 35 and 36 of the GDPR, by providing the information contained in the Agreement including this DPA.
9. Data Subject Rights; Data Export
9.1 Access; Rectification; Restricted Processing; Portability. During the Term, Beny will, in a manner consistent with the functionality of the Service, enable Customer to access, rectify and restrict processing of Customer Data, including via the deletion functionality provided by Beny as described in Section 6.1 (Deletion by Customer), and to export Customer Data.
9.2 Data Subject Requests
9.2.1 Customer’s Responsibility for Requests. During the Term, if Beny receives any request from a data subject under European Data Protection Legislation in relation to Customer Personal Data, Beny will advise the data subject to submit their request to Customer, and Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Service.
9.2.2 Beny’s Data Subject Request Assistance. Customer agrees that Beny will (taking into account the nature of the processing of Customer Personal Data) reasonably assist Customer in fulfilling an obligation to respond to requests by data subjects described in Section 9.2.1 (Customer’s Responsibility for Requests), including, if applicable, Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III of the GDPR, by complying with the commitments set out in Section 9.1 (Access; Rectification; Restricted Processing; Portability) and Section 9.2.1 (Customer’s Responsibility for Requests).
10. Data Transfers
10.1 Data Storage and Processing Facilities. Beny may, subject to Section 10.2 (Transfers of Data Out of the EEA), store and process the relevant Customer Data anywhere Beny or its Subprocessors maintain facilities.
10.3 Disclosure of Confidential Information Containing Personal Data. If the Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA) are applicable to Beny’s processing of Customer Personal Data, Beny will, notwithstanding any term to the contrary in the Agreement, ensure that any disclosure of Customer’s Confidential Information containing personal data, and any notifications relating to any such disclosures, will be made in accordance with such Model Contract Clauses.
10.4 Termination of Model Contract Clauses. Notwithstanding the foregoing, the Model Contract Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under Chapter V of the GDPR in the absence of such Model Contract Clauses on any other basis, and Beny has implemented any measures necessary to comply with such basis.
11.1 Consent to Subprocessor Engagement. Customer specifically authorizes the engagement of Beny’s Affiliates as Subprocessors. In addition, Customer generally authorizes the engagement of any other third parties as Subprocessors (“Third Party Subprocessors”). If the Model Contract Clauses as described in Section 10.2 (Transfers of Data Out of the EEA) are applicable to Beny’s processing of Customer Personal Data, the above authorizations will constitute Customer’s prior written consent to the subcontracting by Beny of the processing of Customer Personal Data if such consent is required under Clause 5(h) and Clause 11 of the Model Contract Clauses.
11.2 Information about Subprocessors.
11.2.1 Information about Subprocessors is available upon request by emailing privacyrequests@Beny.com (as may be updated by Beny from time to time in accordance with this DPA). Subprocessor information will be provided only upon request and is the Confidential Information of Beny under this Agreement and must be treated with the level of confidentiality afforded to Confidential Information hereunder.
11.2.2 Copies of sub-processor agreements that must be made available to Customer pursuant to Clause 5(j) of the Model Contract Clauses may have all commercial information (such as pricing terms) removed by Beny. Such agreements will be provided only upon request and are Confidential Information of Beny under the Agreement.
11.3 Requirements for Subprocessor Engagement. When engaging any Subprocessor, Beny will:
- ensure via a written contract that:
- the Subprocessor only accesses and uses Customer Data to perform the obligations subcontracted to it, and does so in accordance with the Agreement (including this DPA) and any Model Contract Clauses entered into or Alternative Transfer Solution adopted by Beny as described in Section 10.2 (Transfers of Data Out of the EEA); and
- if the GDPR applies to the processing of Customer Personal Data, the data protection obligations set out in Article 28(3) of the GDPR, as described in this DPA, are imposed on the Subprocessor; and
- remain liable for all obligations subcontracted to, and all related acts and omissions of, the Subprocessor.
11.4 Opportunity to Object to Subprocessor Changes.
- Beny may add or remove Subprocessors from time to time. Beny will inform Customer of new Subprocessors via a subscription mechanism described in the list of Subprocessors as described above. If Customer objects to a change, it will provide Beny with notice of its objection to gdpr-dsar@Beny.com including reasonable detail supporting Customer’s concerns within sixty days of receiving notice of a change from Beny or, if Customer has not subscribed to receive such notice, within sixty days of Beny publishing the change. Beny will then use commercially reasonable efforts to review and respond to Customer’s objection within thirty days of receipt of Customer’s objection. If Beny does not respond to a Customer objection as described above, or cannot reasonably accommodate Customer’s objection, Customer may terminate the Agreement by providing written notice to Beny. This termination right is Customer’s sole and exclusive remedy if Customer objects to any new Subprocessor.
12. Privacy Contact; Processing Records
12.1 Beny’s Privacy Contact. Privacy inquiries related to this DPA can be submitted to firstname.lastname@example.org (and/or via such other means as Beny may provide from time to time).
12.2 Beny’s Processing Records. Customer acknowledges that Beny is required under the GDPR to: (a) collect and maintain records of certain information, including the name and contact details of each processor and/or controller on behalf of which Beny is acting and, where applicable, of such processor’s or controller’s local representative and data protection officer; and (b) make such information available to the supervisory authorities. Accordingly, if the GDPR applies to the processing of Customer Personal Data, Customer will, where requested, provide such information to Beny via the Service or other means provided by Beny, and will use the Service or such other means to ensure that all information provided is kept accurate and up-to-date.
13.1 Liability Cap. For clarity, the total combined liability of either party and its Affiliates towards the other party and its Affiliates under or in connection with the Agreement (such as under the DPA or the Model Contract Clauses) will be limited to the Agreed Liability Cap for the relevant party, subject to Section 13.2 (Liability Cap Exclusions).
13.2 Liability Cap Exclusions. Nothing in Section 13.1 (Liability Cap) will affect the remaining terms of the Agreement relating to liability (including any specific exclusions from any limitation of liability).
Notwithstanding anything to the contrary in the Agreement, where Beny Global, Inc. is not a party to the Agreement, Beny Global, Inc. will be a third-party beneficiary of Section 7.4 (Reviews and Audits of Compliance), Section 11.1 (Consent to Subprocessor Engagement) and Section 13 (Liability) of this DPA.
Appendix 1: Subject Matter and Details of the Data Processing
Beny’s provision of the Service to Customer.
Duration of the Processing
The Term plus the period from the expiry of the Term until deletion of all Customer Data by Beny in accordance with the DPA.
Nature and Purpose of the Processing
Beny will process Customer Personal Data for the purposes of providing the Service to Customer in accordance with the DPA.
Categories of Data
Data relating to End Users or other individuals provided to Beny via the Service, by (or at the direction of) Customer or by End Users. The open nature of the Service does not impose a technical restriction on the categories of data Customer may provide. The personal data transferred may include: name, username, password, email address, telephone and fax number, title and other business information, general information about interest in and use of Beny services; and demographic information.
Data subjects include End Users and the individuals about whom data is provided to Beny via the Service by (or at the direction of) Customer or by End Users.
Appendix 2: Security Measures
Beny will implement and maintain the Security Measures set out in this Appendix 2. Beny may update or modify such Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Service. Beny will:
- Conduct information security risk assessments at least annually and whenever there is a material change in the organization’s business or technology practices that may impact the privacy, confidentiality, security, integrity or availability of Customer Personal Data.
- Regularly and periodically train personnel who have access to Customer Personal Data or relevant Beny Systems.
- Maintain secure user authentication protocols, secure access control methods, and firewall protection for Beny Systems that Process Customer Personal Data.
- Maintain policies and procedures to detect, monitor, document and respond to actual or reasonably suspected Information Security Incidents.
- Implement and maintain tools that detect, prevent, remove and remedy malicious code designed to perform an unauthorized function on or permit unauthorized access to Beny Systems.
- Implement and maintain up-to-date firewalls.
- Implement and use cryptographic modules to protect Customer Personal Data in transit and, when commercially reasonable, at rest.
- Maintain reasonable restrictions on physical access to Customer Personal Data and relevant Beny Systems.
Appendix 3: Model Contract Clauses
Standard Contractual Clauses (Processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
Name of the data exporting organisation: Customer (as defined in the DPA).
(the data exporter)
Name of the data importing organisation: Beny (as defined in the DPA).
(the data importer)
each a “party”; together “the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1 Definitions
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law‘ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2 Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
- The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is: Customer.
The data importer is: Beny.
The personal data transferred concern the following categories of data subjects: As set forth in Appendix 1 of the DPA.
Categories of data
The personal data transferred concerns the following categories of data: As set forth in Appendix 1 of the DPA.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data: As set forth in Appendix 1 of the DPA (if and as applicable).
The personal data transferred will be subject to the following basic processing activities: Processing to carry out the Services pursuant to the Agreement.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c):
Beny will implement and maintain the technical and organisational security measures set forth in Appendix 2 of the DPA.
Beny Lifestyle Benefits Engagement Agreement
Company Legal Name:__________________________________________ DBA:______________________
Company Address: ________________________________________________________________________
Primary Contact Name: _____________________ Phone:_________________ Email:___________________
Note: The primary contact will be given super administration user rights.
Other Admins (optional)
Name:____________________ Phone: ___________________ Email:___________________
Name:____________________ Phone: ___________________ Email:___________________
Name:____________________ Phone: ___________________ Email:___________________
Name:____________________ Phone: ___________________ Email:___________________
Estimated Number of users: ______________
Starting Contribution/Person: ______________
Onboarding Date:_______________ Time:_____________
This lifestyle benefits engagement agreement (the “Agreement”) is dated ______________________, by and among Culture Candy, LLC dba Beny whose address is 199 N 290 W Suite 200, Lindon, UT 84042 hereinafter referred to as “Beny”, and _______________________________, a business, hereinafter referred to as the “Client”, agree to all terms set forth in the Terms and Conditions referenced https://getbeny.com/terms.
Print name and title:________________________
Print name and title:________________________
These Mark Use Guidelines (“Guidelines”) let you know about Beny’s rights with respect to its marks and when and how you can use them. The Guidelines are a part of and incorporate the Terms of Service. Capitalized terms not defined in these Guidelines are defined in the User Agreement or in the other Terms of Service or have the meanings given such terms on the Site. To the extent permitted by applicable law, Beny may modify these Guidelines without prior notice to you, and any revisions to these Guidelines will take effect when posted on the Site, unless otherwise stated in the revised Guidelines. Please check the Site often for updates.
- BENY MARKS
The Beny name and logo are trademarks of Beny. These Guidelines explain the terms under which you are allowed to use the “Beny Marks”, which for purposes of these Guidelines and the other Beny Terms of Service means Beny’s trademarks, including the following:
The Beny Marks are among our most valuable assets. In order to preserve and strengthen our identity, these Guidelines provide conditions of use and clear instructions on proper use of the Beny Marks.
- USE OF BENY LOGO MARKS
The Beny Marks that are also logos are also referred to in these Guidelines as the “Beny Logo Marks”. For example, the Beny Logo Marks include:
You may not use an Beny Logo Mark unless you have a written license, granted by Beny, permitting you to use the Beny Logo Mark. If you have not been granted such a license, then you must not use, copy, modify, distribute, or post the Beny Logo Mark for any reason. If you have such a license from Beny Logo Mark to use the Beny Logo Mark, you must use the Beny Logo Mark only as licensed and only in accordance with these Guidelines.
- USE OF OTHER BENY MARKS
You may use Beny Marks other than the Logo Marks descriptively, provided you adhere to these Guidelines, or as otherwise permitted by law.
Descriptive use includes instances where you are referring to Beny or Beny services, such as “I registered on Beny’s website today”, “I attended Beny’s Lifestyle Benefits Conference”, or “Beny services have saved my company money.”
Keep these principles in mind as well:
- Your use should never mislead anyone to believe Beny sponsorship, affiliation, or endorsement of your company, products, or services exists when it does not.
- When referring to Beny, use the Beny name in a plain text font and format only.
- Beny always appears as “Beny,” never as “Beni”, “Benny”, “Benie”, or “Benni”.
- PROHIBITED USE OF BENY MARKS
Unless you have written permission from Beny, you must never use any Beny Mark:
- On any letterhead, business card, or signature block;
- As part of your business name or a domain name;
- As part of a user ID, including on Beny or social media;
- In association with any third-party trademark in a manner that might create potential confusion as to the ownership of the Beny Mark;
- In any manner that suggests or could lead someone to believe you are acting on behalf of or in association with Beny or that Beny has endorsed or sponsored your product or services; or
- Outside of your relationship with us, except as permitted by Beny in writing.
Even if you have permission to use an Beny Logo Mark, you must never use any Beny Logo Mark:
- That has been reproduced from an unauthorized artwork;
- That has been modified, including color specifications, position and relative size of the letterings;
- That has been modified to use negative or reverse “drop-out” reproduction;
- Tightly confined in a band or bar; or
- With other seals, logos, or other marks of other entities.
- USE OF COPYRIGHTED WORKS
- INFORMATION COLLECTION
Users of the Service may be Clients, Vendors, or Agencies (as each is defined in the User Agreement).
Information You Provide to Us
When you use the Service, you may provide us with information about you. This may include your name and contact information, financial information to make or receive payment for services obtained through the Beny platform, or information to help us fill out tax forms. When you use the Service, we may also collect information related to your use of the Service and aggregate this with information about other users. This helps us improve our Services for you. You may also provide us with information about your contacts or friends if, for example, you’d like to add those contacts to a message room.
Personal Information: In the course of using the Service (whether as a Client or Vendor), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Beny has collected Personal Information from your child, please contact us at: email@example.com .
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Beny will treat the combined information as Personal Information.
- Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
You do not have a statutory obligation to provide us with any information, but you may have a contractual obligation to do so, and if we do not receive certain information from you, then we will not be able to provide our Service to you. If you have any questions regarding whether provision of information is mandatory and the consequences for withholding such information, please contact us using the contact information below.
Information Received from Third Parties
Information Collected Automatically
Like other online companies, we receive technical information when you use our Services. We use these technologies to analyze how people use the Service, to improve how our Site functions, to save your log-in information for future sessions, and to serve you with advertisements that may interest you.
We and our third party service providers, including analytics and third party content providers, may automatically collect certain information from you whenever you access or interact with the Service. This information may include, among other information, the browser and operating system you are using, the URL or advertisement that referred you to the Service, the search terms you entered into a search engine that led you to the Service, areas within the Service that you visited, which links you clicked on, which pages or content you viewed and for how long, other similar information and statistics about your interactions, such as content response times, download errors and length of visits to certain pages and other information commonly shared when browsers communicate with websites. We may combine this automatically collected log information with other information we collect about you. We do this to improve services we offer you, and to improve marketing, analytics, and site functionality.
The information we collect also includes the Internet Protocol (“IP”) address or other unique device identifier (“Device Identifier”) for any device (computer, mobile phone, tablet, etc.) used to access the Service. A Device Identifier is a number that is automatically assigned or connected to the device you use to access the Service, and our servers identify your device by its Device Identifier. Some mobile service providers may also provide us or our third party service providers with information regarding the physical location of the device used to access the Service.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Beny Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
In addition, we and our marketing partners, affiliates, analytics, and service providers may use a variety of other technologies (such as tags) that collect similar information for security and fraud detection purposes and we may use third parties to perform these services on our behalf.
HOW WE RESPOND TO DO NOT TRACK SIGNALS
Beny does not respond to Do-Not-Track signals.
Please note that your browser setting may allow you to automatically transmit a “Do Not Track” signal to websites and online services you visit. There is no consensus among industry participants as to what “Do Not Track” means in this context. Like many websites and online services, Beny does not alter its practices when it receives a “Do Not Track” signal from a visitor’s browser. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com.
The General Data Protection Regulation: Data Processing Agreement
To streamline compliance with the General Data Protection Regulation (“GDPR”), Beny has posted a Data Processing Agreement (“DPA”) governing the relationship between the Customer (as defined in the DPA) acting as a data controller or processor, as applicable (and as defined in the DPA), of personal data under European Data Protection Legislation; and Beny (acting as a data processor or subprocessor, as applicable).
Unless otherwise agreed to in writing by you and Beny, to the extent Beny processes any EU personal data for you as a controller (as defined by the General Data Protection Regulation (EU) 2016/679) in your role as a Customer, the Data Processing Agreement applies.
Vendors may create a profile, with certain or all information publicly available. Clients may also create organization profiles.
You may have the opportunity to create a profile, which consists of information about you, and may include Personal Information, photographs, examples of your work, information on work previously performed via the Service and outside the Service, skills, tests taken, test scores, hourly pay rates and earnings information, feedback/rating information and other information, including your username (“Profile”). The information in your Profile may be visible to all Beny Users and the general public subject to the privacy choices you make within your Beny Profile. You may edit certain information in your Profile via your account and may choose to limit who is able to view certain content you post to your Profile. Clients and Agencies of associated individual users or companies may also have the opportunity to create an organization Profile. If, in any case, you believe that an unauthorized profile has been created about you, you can request for it to be removed by contacting us at firstname.lastname@example.org.
We place a premium on trust in our Service, so we may take steps to verify your identity.
Before a Vendor can complete registration on the Service, or at any time thereafter, we may request or re-request identity verification. Without limiting the manner in which we request identify verification, we may require Vendors to participate in a video call after submitting their government issued ID to enable us to confirm that the Vendor is indeed the individual in the ID. We may record such video calls and take screenshots of the user during the call. Beny may use the information obtained from Identity Verification for purposes of verifying your identity, enforcing our Terms of Service and other agreements, and preventing fraud.
Vendors and Clients may communicate with each other through the Service. For example, Vendors and Clients may wish to discuss Client needs and Vendor work proposals. If you communicate with a Client, that Client will also be a “data controller” with respect to such communications.
We may offer public forums or blogs. If you participate, your comments and questions will be publicly displayed.
The Service may provide you the opportunity to participate and post content publicly in forums, on blogs, through interactive features on Beny and through other communication functionality (“Community Forums”). You may choose, through such features or otherwise, to submit or post questions, comments, or other content (collectively, “User Forum Content”). Please note that certain information, such as your name and Profile may be publicly displayed on the Service along with your User Forum Content. Please note that your use of Community Forums is subject to the Beny Forum Rules and our Terms of Service.
To request removal of your personal information from our blog or community forum, contact us at email@example.com. In some cases, we may not be able to remove your Personal Information, in which case we will let you know if we are unable to do so and why.
We display personal testimonials of satisfied customers on our Service, in addition to other endorsements. With your consent we may post your testimonial along with your name. If you wish to update or delete your testimonial, you can contact us at firstname.lastname@example.org
Listings Through the Service
If you choose to post a listing via the Service as a Client, the contents of such listing will be viewable publicly, unless you designate the listing as only viewable through the Service or as private using the settings available on the applicable website. Listings include information such as budget, location, history of listing(s) by the Client, the names of other Vendors performing work for the Client, Client feedback and rating information and timing of project performance.
Email to Friends and Referral Program
Beny lets you send service postings to friends via email. Beny also offers the ability to send friends emails about providing or purchasing services through the Service. If you choose to use either feature, your friend’s email address will be used to send the requested posting and your email address will be used to copy you on the message to your friend or to send the message on your behalf. Beny stores this information for the sole purpose of sending this one-time email and tracking the success of our referral program.
Your friend may contact us at email@example.com to request that we remove this information from our database.
Social Networking Services
You may register for an account directly with our Site, or through a social networking service. If you register with a social networking service (or later link your account to one), we will collect certain information about you from that social networking service, and what we collect depends on your privacy settings with that social networking service. The Service may also allow you to “like” or share content with social networking services.
You may register to join the Service directly via the Service or by logging into your account with a third party social networking service (“SNS”) via our Service (e.g., Facebook, Github and other third party services that let you sign in using your existing credentials with those services). If you choose to register via an SNS, or to later link your account with the Service to your account with an SNS, we will use the Personal Information you have provided to the SNS (such as your name, email address, gender and other information you make publicly available via the SNS) to create your account. Note that the information we collect from and through an SNS may depend on the privacy settings you have set with the SNS and the permissions you grant to us in connection with linking your account with the Service to your account with an SNS. Other than what we may share with the SNS as described below, the Personal Information an SNS has about you is obtained by the SNS independent of our Service, and Beny is not responsible for it.
The Beny Service also may permit additional interactions between it and a third party website, service, or other content provider, such as enabling you to “like” or share content to a third party SNS. If you choose to “like” or share content, or to otherwise share information from or via our Service with a third party site or service, that information may be publicly displayed, and the third party may have access to information about you and your use of our Service (and we may have access to information about you from that third party). These features may collect your IP address, which page you are visiting on our site, and may set a cookie to enable the feature to function properly. Your interactions with third parties through an SNS or similar features are governed by the respective privacy policies of those third parties.
You represent that you are entitled to use your SNS account for the purposes described herein without breach by you of any of the terms and conditions that govern the SNS, and without obligating Beny to pay any fees or making Beny subject to any usage limitations imposed by such SNS. You can disable the link between your Beny account and your SNS account at any time through the “Settings” section of our Service. Please note that your relationship with any SNS is governed solely by your agreement(s) with such SNS. If your SNS account terminates, then functions enabled through the link between your Beny account and your SNS account will terminate as well.
- USE OF INFORMATION
We use information collected through the Service to provide and improve the Service, process your requests, prevent fraud, provide you with information and advertising that may interest you, comply with the law, and as otherwise permitted with your consent.
WE USE INFORMATION WE COLLECT:
- To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Beny newsletters, marketing or promotional materials (on behalf of Beny or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a Vendor Service for Beny and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Beny or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Beny Users.
We use your Personal Information for the purposes described above:
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users’ request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Beny, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- DATA RETENTION
Unless you request that we delete certain information (see Your Choices and Rights below), we retain the information you submit to verify your identity for 30 days and we retain other information we collect for at least 5 years. Your information may persist in copies made for backup and business continuity purposes for additional time. If you choose to provide us with Personal Information, we encourage you to routinely update the data to ensure that we have accurate and up-to-date information about you.
- INFORMATION SHARING AND DISCLOSURE
We may share information about you to provide the Services, for legal and investigative purposes, in connection with sweepstakes and promotions, or if we are part of a merger or acquisition. We may also share non-identifying information with third parties. You have choices as to whether we share your personal information with third parties for their own marketing purposes.
- Information about Vendors Shared with Clients: We share information regarding Vendors who have entered into a contract with a Client. Note that if a Vendor is suspended from the Beny Service, we may share that information with Clients for whom that Vendor has worked or submitted proposals for work. If you choose to view a job post or submit a proposal for work as a Vendor via the Service, we may share relevant information with the applicable Client(s), including, but not limited to, the information contained in your Vendor Profile. If you choose to participate in
- Information about Clients Shared with Vendors: If you have entered into a service contract with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Beny’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- Legal and Investigative Purposes: Beny will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Beny or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity.
- Internal and Business Transfers: Beny may share information, including Personal Information, with any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
- THIRD PARTY ANALYTICS PROVIDERS, AD SERVERS AND SIMILAR THIRD PARTIES
We may work with advertising agencies and vendors who use technology to help us understand how people use our Site. These vendors may use technologies to serve you advertisements that may interest you. You can choose to opt out of receiving interest-based advertising.
Beny works with (or may in the future work with) network advertisers, ad agencies, analytics service providers and other vendors to provide us with information regarding traffic on the Service, including pages viewed and the actions taken when visiting the Service; to serve our advertisements on other websites, within mobile apps and elsewhere online; and to provide us with information regarding the use of the Service and the effectiveness of our advertisements. Our service providers may collect certain information about your visits to and activity on the Service as well as other websites or services, they may set and access their own tracking technologies on your device (including cookies and web beacons), and may use that information to show you targeted advertisements. Some of these parties may collect Personal Information when you visit the Service or other online websites and services. We may also share certain Non-Identifying Information with these parties, including Hashed Information, in connection with the services they provide to us.
While we may use a variety of service providers to perform advertising services, some of these companies are members of the Network Advertising Initiative (“NAI”) or the Digital Advertising Alliance (“DAA”) Self-Regulatory Program for Online Behavioral Advertising. You may want to visit http://www.networkadvertising.org/managing/opt_out.asp, which provides information regarding targeted advertising and the “opt-out” procedures of NAI members. You may also want to visit http://www.aboutads.info/choices/, which provides information regarding targeted advertising and offers an “opt-out” by participating companies in the DAA Self-Regulatory Program.
- YOUR CHOICES AND RIGHTS
You have certain choices regarding how we may communicate with you.
Registered Beny Users may update their choices regarding the types of communications you receive from us through your online account. You also may opt-out of receiving marketing emails from us by following the opt-out instructions provided in those emails. Please note that we reserve the right to send you certain communications relating to your account or use of the Service (for example, administrative and service announcements) via email and other means and these transactional account messages may be unaffected if you opt-out from receiving marketing communications. You may opt-out of receiving text messages by replying “STOP” to any text message received. Registered Beny Users who access the Service by using an Beny mobile application may, with permission, receive push notifications. Similarly, registered Beny Users who access the Service by using certain desktop browsers may, with permission, receive push notifications. Notification preferences can be modified in the settings menu for the mobile application or the applicable browser.
All Users may request access to or correction of any Personal Information we have about them or close their account and/or request deletion of all Personal Information we have about them. In certain jurisdictions, Users may have certain rights with regard to their Personal Information. We will honor User requests to the extent we can reasonably do so and as required by law, but some information will remain on the Services, such as information you posted publicly.
Upon request Beny will provide you with information about whether we hold any of your personal information. You are responsible for maintaining the accuracy of the information you submit to us, such as your contact information. You may access, correct, or request deletion of your personal information by making updates to that information or by contacting Beny through your online account. If you request to access all personal information you’ve submitted, we will respond to your request to access within 30 days or as otherwise required by law. If your information is deleted, then your account may become deactivated. If your account is deactivated or you ask to close your account, you will no longer be able to use the Service. If you would like to close your account in our system, you can do so through the Beny Service (once you have logged in, visit settings / user settings, and then click on the close my account link).
Depending on where you are located, you may have certain rights with regard to your Personal Information (including, in certain cases, under the Privacy Shield, described below). For example, if you are located in the European Economic Area (“EEA”), in addition to the rights described above, you may contact us at the contact information provided below to (1) request a restriction on the processing of your Personal Information, (2) object to the processing of your Personal Information, or (3) exercise other rights with respect to your Personal Information. If you are a California resident, you may have other rights. Please see our Privacy Center for more information or to submit a request to us regarding your Personal Information.
We will use commercially reasonable efforts to honor your requests for deletion; however, certain information will actively persist on the Service even if you close your account, including information in your messages you posted to the Service. In addition, the rights described above may be limited, for example, if fulfilling your request would reveal personal information about another person, or if you ask us to delete information we are required by law to keep or have compelling legitimate interests in keeping (such as for fraud prevention purposes). Your Personal Information may remain in our archives and information you update or delete, or information within a closed account, may persist internally for our administrative purposes, to the extent permitted by law. In addition, we typically will not remove information you posted publicly through or on the Service. Bear in mind that neither you nor Beny can delete all copies of information that has been previously shared with others on the Service.
We take a number of steps to protect your data, but no security is guaranteed.
Beny takes commercially reasonable steps to help protect and secure the information it collects and stores about Beny Users. All access to the Site is encrypted using industry-standard transport layer security technology (“TLS”). When you enter sensitive information (such as tax identification number), we encrypt the transmission of that information using secure socket layer technology (“SSL”). We also use HTTP strict transport security to add an additional layer of protection for our Beny Users. But remember that no method of transmission over the Internet, or method of electronic storage, is 100% secure. Thus, while we strive to protect your Personal Information, Beny cannot ensure and does not warrant the security of any information you transmit to us.
- INTERNATIONAL TRANSFER OF PERSONAL INFORMATION
Because we are a U.S. company, we process and store your information in the United States and our service providers may process and store it elsewhere.
When we transfer Personal Information from territories in the EEA or with similar laws to our affiliates or service providers in the United States and elsewhere outside the EEA, we rely on approved data transfer mechanisms, including standard contractual clauses approved by the European Commission and the Privacy Shield, as described below. You may request a copy of the standard contractual clauses relevant to your Personal Information, if any, using the contact information below.
- PRIVACY SHIELD NOTICE
Beny currently has not certified privacy shield with EU authorities.
- LINKS TO OTHER SITES
Our Service contains links to other websites. If you choose to click on a third party link, you will be directed to that third party’s website. The fact that we link to a website is not an endorsement, authorization or representation of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites. These other websites may place their own cookies or other files on your computer, collect data or solicit Personal Information from you. We encourage you to read the privacy policies or statements of the other websites you visit.
- PUBLIC PROFILE
The profile you create on our Site will be publicly accessible unless otherwise indicated. You may change the privacy settings of your profile through your account portal.
Phishing websites imitate legitimate websites in order to obtain personal or financial information. Identity theft and the practice currently known as “phishing” are of great concern to Beny. For more information about phishing, visit the website of the Federal Trade Commission at http://www.consumer.ftc.gov/articles/0003-phishing. In addition, if you believe you have received an email or had a similar interaction with a third party pretending to be Beny, please report it at firstname.lastname@example.org.
- CALIFORNIA AND NEVADA RESIDENTS – YOUR PRIVACY RIGHTS
NOTICE FOR CALIFORNIA RESIDENTS
Please see the Supplemental Notice for California Residents below for additional details on rights available to California residents, and how to exercise such rights.
NOTICE FOR NEVADA RESIDENTS
Under Nevada law, certain Nevada residents may opt out of the sale of “personally identifiable information” for monetary consideration to a person for that person to license or sell such information to additional persons. “Personally identifiable information” includes first and last name, address, email address, phone number, Social Security Number, or an identifier that allows a specific person to be contacted either physically or online.
We do not engage in such activity; however, if you are a Nevada resident who has purchased or leased goods or services from us, you may submit a request to opt out of any potential future sales under Nevada law by emailing email@example.com. Please note we will take reasonable steps to verify your identity and the authenticity of the request. Once verified, we will maintain your request in the event our practices change.
- CHANGES TO THIS POLICY
- CONTACTING US
- SUPPLEMENTAL PRIVACY NOTICE FOR CALIFORNIA RESIDENTS
Summary of Information We Collect
California law requires us to disclose information regarding the categories of personal information that we have collected about California consumers (as that term is defined in the California Consumer Privacy Act (“CCPA”)), the categories of sources from which the information was collected, the business or commercial purposes (as those terms are defined by applicable law) for which the information was collected, and the categories of parties with whom we share personal information.
We or our service providers may collect the below categories of information for the following business or commercial purposes (as those terms are defined in applicable law):
- Providing the Service (e.g., account servicing and maintenance, matching Vendor with client needs, customer service, advertising and marketing, analytics, and communication about the Service);
- Our or our service providers’ operational purposes;
- Auditing consumer interactions on our site (e.g., measuring ad impressions);
- Detecting, protecting against, and prosecuting privacy and security incidents and fraudulent or illegal activity;
- Bug detection, error reporting, and activities to maintain the quality or safety of our Service;
- Investigating compliance with, enforcing, and/or complying with the law;
- Short-term, transient use, such as customizing content that we or our service providers display on the Service;
- Improving our existing Service and developing new services (e.g., by conducting research to develop new products or features);
- Other uses that advance our commercial or economic interests, such as third party advertising and communicating with you about relevant offers from us or third party partners;
- Other uses about which we notify you.
Examples of these types of uses are identified below. We may also use the below categories of personal information for compliance with applicable laws and regulations, and we may combine the information we collect (“aggregate”) or remove pieces of information (“de-identify”) to limit or prevent identification of any particular user or device.
|Categories of Personal Information We Collect||Categories of Sources||Examples of Uses||Categories of Third Parties With Which We May Share That Information|
|Identifiers (such as account information, name, email address, address, phone number, or social network account and profile data)||
|Commercial information (such as transaction data)||
|Financial data (such as payment information)||
|Internet or other network or device activity (such as IP address, unique device and app identifiers, browsing history or other usage data)||
|General Location information||
|Sensory information (such as audio recordings if you call our customer service, video recording (if you provide permission), or screenshots from Work Diaries)||
|Other information that identifies or can be reasonably associated with you (such as user generated content, e.g. community posts, feedback and job postings, in each case, when the content can be used to identify you)||
If you are a California resident, you may have certain rights. California law may permit you to request that we:
- Provide you the categories of personal information we have collected or disclosed about you in the last twelve months; the categories of sources of such information; the business or commercial purpose for collecting or selling your personal information; and the categories of third parties with whom we shared personal information.
- Provide access to and/or a copy of certain information we hold about you.
- Delete certain information we have about you.
You may have the right to receive information about the financial incentives that we offer to you, if any. You also have the right to not be discriminated against (as provided for in applicable law) for exercising certain of your rights.
If you would like to exercise any of these rights, please submit a request through the Data Request Form available in our Privacy Center or email us at firstname.lastname@example.org. You will be required to verify your identity before we fulfill your request. You can also designate an authorized agent to make a request on your behalf. To do so, you must provide us with written authorization or a power of attorney, signed by you, for the agent to act on your behalf. You will still need to verify your identity directly with us.
Certain information may be exempt from such requests under applicable law. For example, we need certain types of information so that we can provide the Service to you. If you ask us to delete it, you may no longer be able to access or use the Service.
The CCPA sets forth certain obligations for businesses that “sell” personal information. Based on the definition of “sell” under the CCPA and under current regulatory guidance, we do not believe we engage in such activity and have not engaged in such activity in the past twelve months.
- LICENSES AND THIRD-PARTY CONTENT
2.1 Beny’S PROVISION OF THE SITE AND LIMITED SITE LICENSE
Section 2.1 discusses the rights we give to you to allow you to use the Site, as detailed below:
We try to keep our Site and the Site Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. In fact, we might even stop providing the Site or Site Services completely or stop providing certain features without notice.
2.2 TERMINATION OF THE LIMITED SITE LICENSE
Section 2.2 explains that we can stop allowing you to use the Site, as detailed below:
Beny may terminate any license it has granted to any Site Visitor or User to access the Site and Site Services by providing notice, and the termination of such license shall be effective immediately upon Beny providing such notice.
2.3 BENY’S INTELLECTUAL PROPERTY
Section 2.3 explains that even though we let you use the Site, we still retain all our rights, as detailed below:
Beny and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The Beny logos and names are trademarks of Beny and are registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners.
Nothing in the Terms of Service grants you a right to use any Beny Marks.
2.4 YOUR INTELLECTUAL PROPERTY
2.4.1 YOUR OBLIGATIONS AND YOUR INDEMNIFICATION OF BENY
Section 2.4.1 explains that you are solely responsible for your use of the Site and any content you post on the Site, and that if someone makes a claim against Beny because of your content that you will pay Beny for our fees and expenses, as detailed below:
When you post User Content on the Site or through the Site Services or provide Beny with User Content, you understand and acknowledge that you are solely responsible for such User Content. Further, you represent and warrant that you have the right, power, and authority to (a) post that User Content without violating the rights of third parties, and (b) grant the licenses specified below.
You acknowledge and agree that the poster of User Content, and not Beny, is responsible for any User Content including any harms caused to you, another User, or a third party by such User Content.
You will indemnify, defend, and hold harmless Beny, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, 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 relating to or arising out of any User Content you post.
2.4.2 YOUR RIGHTS AND LICENSE TO BENY AND OTHER SITE VISITORS
Section 2.4.2 explains that by posting content on the Site, you give others certain limited rights to that content, as detailed below:
2.4.3 YOUR COMMENTS AND IDEAS
Section 2.4.3 explains when you can and what happens if you send your ideas to Beny, as detailed below:
You may submit comments or ideas about the Site and Site Services, including without limitation about how to improve the Site or Site Services (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place Beny under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) you grant us a perpetual and royalty-free license to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, Beny does not waive any rights to use similar or related ideas, including those known or developed by Beny or obtained from sources other than you.
2.5 THIRD-PARTY INTELLECTUAL PROPERTY
Section 2.5 explains that third parties, including other Users, are responsible for content posted or linked on the Site, as detailed below:
Any information or content expressed or made available by a third party or any other Site Visitor or User is that of the respective author(s) or distributor(s) and not of Beny. Beny neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than Beny’s authorized agents acting in their official capacities.
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites or applications are owned and operated by the third parties and/or their licensors. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website accessed via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
2.6 COMPLAINTS ABOUT COPYRIGHTED CONTENT ON THE SITE
Section 2.6 explains what to do if you think content on the Site infringes your rights, as detailed below:
Beny is committed to complying with U.S. copyright and related laws and requires all Site Visitors and Users to comply with these laws. Accordingly, you may not use the Site to store any material or content, or disseminate any material or content, in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by U.S. copyright law.
- PERMITTED SITE USES
Section 3 explains how you are allowed to use the Site, as detailed below:
Beny offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. Beny makes the Site and Site Services available for Users to find one another, enter into service relationships, make and receive payments through escrow, and receive and provide Vendor Services. In addition, certain Visitor Site Services, such as the Beny Blog and Hiring Headquarters, provide, and may be used to obtain, general information and articles that we believe may be of interest to Site Visitors and Users. While we try to ensure that any information we post is both timely and accurate, errors may appear from time to time. We do not make any representations or warranties with respect to any information that is posted on the Site by us or anyone else. In no event should any content be relied on or construed as tax or legal advice or otherwise. You should independently verify the accuracy of any content.
- PROHIBITED SITE USES
Section 4 explains uses of the Site that are not allowed, as detailed below:
You may not use, or encourage, promote, facilitate, instruct or induce others to use, the Site or Site Services for any activities that violate any law, statute, ordinance or regulation; for any other illegal or fraudulent purpose or any purpose that is harmful to others; or to transmit, store, display, distribute or otherwise make available content that is illegal, fraudulent or harmful to others.
4.1 EXAMPLES OF PROHIBITED USES OF THE SITE
The following are examples of uses that are prohibited on the Site or when using the Site Services:
- Seeking, offering, promoting, or endorsing and services, content, or activities that:
- are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;
- would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;
- would violate (a) Beny’s Terms of Service, (b) the terms of service of another website or any similar contractual obligations, or (c) the academic policies of any educational institution;
- regard the creation, publication, or distribution of “fake news”, “hoax news”, Deep Fake content or similar content, which is, in Beny’s sole discretion, determined to be intended to mislead recipients for personal, financial, political or other gain or advantage;
- regard or promote in any way any escort services, prostitution, or sexual acts; or
- are harassing toward another person based on the person’s inclusion in a protected class as defined by applicable law;
- Fraudulent or misleading uses or content, including:
- fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Beny App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;
- using a profile photo that misrepresents your identity or represents you as someone else;
- impersonating any person or entity, including, but not limited to, an Beny representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- falsely stating or implying a relationship with another User, including an Agency continuing to use a Vendor’s profile or information after the Vendor no longer works with the Agency;
- falsely attributing statements to any Beny representative, forum leader, guide or host;
- falsely stating or implying a relationship with Beny or with another company with whom you do not have a relationship;
- allowing another person to use your account, which is misleading to other Users; or
- falsely stating that one Vendor will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Vendor that is unable, unwilling, or unavailable to do the work;
- Expressing an unlawful preference in a listing or otherwise unlawfully discriminating on a protected basis;
- Posting identifying information concerning another person;
- Spamming other Users with proposals or invitations, including by making unsolicited contact of Users off the Beny platform, or by posting the same listing multiple times so that more than one version remains active at a given time;
- Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;
- Requesting or demanding free services;
- Attempting to or actually manipulating or misusing the feedback system, including by:
- withholding payment or service or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- attempting to coerce another User by threatening to give negative feedback;
- expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system;
- providing anything of value to any person (including to a third-party who provides assistance in obtaining feedback) or using any service of any type in order to obtain feedback; or
- offering services for the sole purpose of obtaining positive feedback of any kind;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Beny’s consent;
- Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on Beny to recruit Vendors and/or Clients to join an Agency or another website or company;
- Interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site, including by:
- bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
- attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
- using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;
- attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;
- collecting or harvesting any personally identifiable information, including Account names, from the Site;
- attempting to or imposing an unreasonable or disproportionately large load (as determined in Beny’s sole discretion) on the Site’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of Beny or any third party;
- accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided; or
- framing or linking to the Site or Site Services except as permitted in writing by Beny
- Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or Beny’s proprietary information, including:
- attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or Beny; or
- accessing or using the Site or Site Services to build a similar service or application, identify or solicit Beny Users, or publish any performance or any benchmark test or analysis relating to the Site.
4.3 REPORTING AND CORRECTING VIOLATIONS
Capitalized terms not defined below have the meanings described in the Terms of Service.
“Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Beny.
“Client” means any authorized User utilizing the Site to seek and/or obtain Vendor Services from another User.
“Deep Fake” means media that is altered in order to replace a person in an existing image or video with someone else’s likeness in a realistic manner without permission or authorization of the person whose likeness is used.
“Vendor” means any authorized User utilizing the Site to advertise and/or provide Vendor Services to Clients, including Vendor Accounts that are Agency Accounts or, if applicable, Service Providers. A Vendor is a customer of Beny with respect to use of the Site and Site services.
“Vendor Services” means any services provided by Vendors.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Means of Direct Contract” has the meaning set forth in Section 7 of the User Agreement.
“Public Site Services” means, collectively, all services, applications and products that are accessible by any Site Visitor who has not become a User through the Site, to the extent they are accessible by a Site Visitor who has not become a User.
“Site” means, collectively, our website located at www.Beny.com, all affiliated websites and applications, including mobile websites and Beny Mobile Applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (defined in the User Agreement).
“Site Services” means, collectively, all services (except the Vendor Services defined herein), applications and products that are accessible through the Site, including the Public Site Services, and all Beny Mobile Applications.
“Beny Mobile Applications” means all mobile applications published by Beny or our Affiliates for access to or use of the Site or any Site Services.
“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other information that you or any Site Visitor or User post to any part of the Site or provide to Beny, including such information that is posted as a result of questions.
“You” means any person who accesses our Site, including a Site Visitor or User and including any entity or agency on whose behalf any such person accesses or uses our Site.
IMPORTANT – PLEASE READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you and Culture Candy, LLC dba Beny and its affiliates (“Beny”, “we”, or “us”). This EULA governs your use of the Beny software and any third party software that may be distributed therewith (collectively the “Software”). Beny agrees to license the Software to you (personally and/or on behalf of your employer) (collectively “you” or “your”) only if you accept all the terms contained in this EULA. By installing, using, copying, or distributing all or any portion of the software, you accept and agree to be bound by all of the terms and conditions of this EULA. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
- CONDITIONAL LICENSE.
1.1. LICENSE GRANT:
Subject to your compliance with the terms and conditions of this EULA, Beny grants you a non-exclusive, non-transferable right to use the executable code version of the Software for your use solely in connection with work you perform on or through the Site.
1.2. RESTRICTIONS ON USE:
You agree not to modify, display, adapt, translate, loan, distribute, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software. You may not publish, redistribute, sublicense or sell the Software or any information or material associated with the Software. You may not rent, lease or otherwise transfer your rights to the Software. You may not use the Software in any manner that could damage, disable, overburden or impair the Site, nor may you use the Software in any manner that could interfere with any other party’s use and enjoyment of the Site. You agree that you will use the Software for lawful purposes and only in compliance with all applicable laws, including but not limited to copyright and other intellectual property laws. In addition, you shall not perform, nor release the results of any testing of the Software to any third party without the prior written consent of Beny. You also agree not to remove, obscure, or alter any copyright notice, trademarks or other proprietary rights notices contained within or accessed in conjunction with or through the Software.
1.3. INTELLECTUAL PROPERTY RIGHTS:
The Software is licensed, not sold, to you for use pursuant to the terms of this EULA. All rights not expressly granted to you are reserved to Beny or its licensors or third party providers. You acknowledge that Beny or its licensors or third party providers own all rights, title and interest, including without limitation all Intellectual Property Rights, in and to the Software, portions thereof, or any information or material provided through or in conjunction with the Software. Your rights to use the Software shall be limited to those expressly granted in this Section 1. All rights not expressly granted to you are reserved by Beny, its licensors or third party providers. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all other proprietary rights, and all applications, registrations, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
- DISCLAIMER OF WARRANTIES.
2.1. “AS IS”; NO WARRANTY:
THE SOFTWARE IS PROVIDED BY BENY AND ANY OF OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS “AS IS,” WITH NO WARRANTIES WHATSOEVER. BENY EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW, ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. COMPUTER PROGRAMS ARE INHERENTLY COMPLEX, AND THE SOFTWARE MAY NOT BE FREE OF ERRORS. THE SOFTWARE IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. BENY DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SOFTWARE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND USE THE SOFTWARE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE.
2.2. PRIVACY DISCLAIMER:
TO THE FULLEST EXTENT PERMITTED BY LAW, BENY DISCLAIMS LIABILITY IN THE EVENT OF THE UNAUTHORIZED ACCESS TO OR MISAPPROPRIATION OF YOUR PERSONAL INFORMATION OR PRIVATE COMMUNICATIONS BY THIRD PARTIES.
2.3. JURISDICTIONAL LIMITATIONS:
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN JURISDICTIONS WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE OR TO THE MINIMUM PRESCRIBED BY LAW. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
2.4. SURVIVAL OF DISCLAIMER:
The provisions of this Section 2 and of Section 3 shall survive the termination of this EULA, but this shall not imply or create any continued right to use the Software after termination of this EULA.
- LIMITATION OF LIABILITY
3.1. LIMITATION OF LIABILITY:
IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL BENY, OUR LICENSORS OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER’S USE OR MISUSE OF THE SOFTWARE. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (EVEN IF BENY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE, FROM THE PERFORMANCE OR MISPERFORMANCE OF THE SOFTWARE, FROM INABILITY TO USE THE SOFTWARE, OR FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SOFTWARE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
3.2. DAMAGES CAP:
EXCEPT AS LIMITED BY APPLICABLE LAW, REGARDLESS OF THE BASIS FOR YOUR CLAIM, BENY’S, LICENSORS’ AND THIRD PARTY PROVIDERS’ TOTAL LIABILITY UNDER THIS EULA SHALL BE LIMITED TO DIRECT DAMAGES WHICH SHALL NOT EXCEED THE AMOUNT OF FEES PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM, OR ONE U.S. DOLLAR ($1.00), WHICHEVER IS LESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING PROVISIONS SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY FOR MONETARY DAMAGES IN RESPECT OF ANY BREACH OF OR DEFAULT UNDER THIS AGREEMENT BY BENY.
To the maximum extent permitted by applicable law, you agree to indemnify and hold harmless Beny and its subsidiaries, affiliates, joint ventures, suppliers, officers, directors, shareholders, employees and agents, from any claim or demand made by any third party due to or arising directly or indirectly out of your conduct or in connection with your use of the Software or its features, any alleged violation of these terms, or any alleged violation of any applicable law or regulation. Beny reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse your indemnity obligations.
- PRIVACY AND SECURITY
Although we have taken reasonable measures to prevent unauthorized persons from gaining access to your computer via the Software, we cannot foresee or control the actions of third parties. Therefore, use of the Software could make you vulnerable to security breaches that you might not otherwise face and could result in the loss of your privacy or property. You agree that Beny is not liable to you for security breaches resulting from your use of the Software or otherwise.
- NO NOTICE OF UPDATES.
Beny reserves the right to modify or change this EULA from time to time without notice to You. The latest version will be available on the Site. Beny also may update or modify the Software from time to time at its discretion. Your election to continue use of the Software, after the date of posting of these modifications to the EULA or to the Software constitutes acceptance of those modifications. If you do not agree with the modifications, do not use the Software.
- EXPORT CONTROLS.
You are responsible for complying with trade regulations and both foreign and domestic laws. You acknowledge that the Software or its underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Cuba, Iraq, Iran, Libya, North Korea, Syria or any other country subject to United States embargo; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or on the U.S. Commerce Department’s Denied Party or Entity List; and (c) you will not export or re-export the Software to any prohibited country, person, end-user or entity specified by U.S. Export Laws.
- TERM AND TERMINATION:
This EULA is effective as soon as you install, use, copy or distribute the Software and shall continue until it is terminated by Beny or you, as provided for under the terms of this Section. Unless otherwise agreed to in writing with us, either you or we may terminate the contractual agreement represented by this EULA at any time upon notice to the other party. This EULA, including without limitation your right to the Software as specified in Section 1, terminates immediately and without notice from Beny if you fail to comply with any of its provisions. Upon termination you shall immediately discontinue use of and destroy the Software and all copies or portions thereof, including any master copy, and within ten (10) days certify in writing to Beny that all copies have been destroyed.
8.2. SURVIVAL OF TERMINATION:
Sections 1.3, 2, 3, 4, 7, 8.2 and 9 of these terms will survive any termination of this EULA. The termination of this EULA does not limit Beny’s other rights it may have by law.
- MISCELLANEOUS PROVISIONS.
9.1. SEVERANCE. WAIVER:
If for any reason a court of competent jurisdiction finds any provision or portion of this EULA to be unenforceable, it shall be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force.
You agree that, on Beny’s request, you will certify in writing your compliance with the terms of this EULA.
You may not assign this EULA or sublicense, assign, transfer or delegate any right or duty hereunder, without the prior written consent of Beny, at our sole discretion. Notwithstanding the foregoing, Beny may assign or transfer this EULA or any rights granted hereunder without your prior consent. This EULA is binding on and will inure to the benefit of the parties successors and permitted assigns.
9.4. ENTIRE AGREEMENT.
This EULA and the terms expressly incorporated by reference herein, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
Beny Terms of Service
PLEASE READ THIS USER AGREEMENT AND ALL OTHER AGREEMENTS AND POLICIES REFERENCED HEREIN COLLECTIVELY DEFINED BELOW AS THE “TERMS OF SERVICE” CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER.
Subject to the conditions set forth herein, Beny may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site. Beny will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. If the Substantial Change includes an increase to Fees charged by Beny, Beny will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date (each, as applicable, the “Effective Date”).
IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR VENDOR, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR VENDOR, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR VENDOR TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR VENDOR TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO YOU AND THAT ENTITY OR VENDOR.
1. BENY 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.
1.2 ACCOUNT ELIGIBILITY
Beny offers the Site and Site Services for business, personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity) and will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting; or (b) are either a legal entity or an individual who is 16 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case 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, to be shown to 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. 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 User Account (defined below), you can add an Employer Account (defined below) or a Vendor Account (defined below) 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 EMPLOYER ACCOUNT
You can register for an Account or add an Account type to use the Site and Site Services as an Employer Super Admin (a “Employer Super Admin Account”). Each User under a User Account (“Team Member”) can be given different permissions to act on behalf of the Employer Account.
1.4.2 VENDOR and SERVICE PROVIDER ACCOUNT
VENDOR: You can register for an Account or add an Account type to use the Site and Site Services as a VENDOR (a “Vendor Account”).
Service Provider: A specific type of Vendor Account you can add is a “Service Provider Account”, the owner of which is referred to as a “Vendor Account”. An Vendor Account allows permissions to be granted to Users under the Vendor Account which can be given different permissions to act on behalf of the Vendor(each, an “Service Provider”).
You acknowledge and agree that the Vendor is solely responsible, and assumes all liability, for: (a) the classification of your Service Providers as employees or independent contractors; and (b) paying your Service Providers in accordance with applicable law for work performed on behalf of the Vendor for Jobs. You further acknowledge and agree that the Vendor may determine the Profile visibility and pricing/rate information of any of its Service Providers.
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 Service Provider, you represent and warrant that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for the User’s acts and omissions, including for obligations and liabilities relating to 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 and Site Services. Upon closure of an Account, Beny 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 Beny. You authorize Beny, 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, which includes, but is not limited to, providing official government or legal documents. During verification some Account features may be temporarily limited. When a verification is successfully completed, Account features will be restored.
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 Beny 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 both or (b) the use would violate the Terms of Service.
2. PURPOSE OF BENY
Section 2 discusses what Beny 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 Vendor or Client, as detailed below.
The Site is a lifestyle benefits marketplace where Clients contribute funds to their users’ (employees) Beny accounts and Vendors can identify each other and advertise, buy, and sell Vendor Services online to Users. Subject to the Terms of Service, Beny 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 BENY
Beny merely makes the Site and Site Services available to enable Vendors and Clients to find and transact directly with each other. Beny does not introduce Vendors to Clients, find Jobs for Vendors, or find Vendors for Clients. Through the Site and Site Services, Vendors may be notified of Clients that may be seeking the services they offer, and Clients may be notified of Vendors that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Service, Client or Vendor on their own. If Users decide to enter into a Service Contract, the Service Contract is directly between the Users and Beny is not a party to that Service Contract.
You acknowledge, agree, and understand that Beny is not a party to the relationship or any dealings between Client and Vendor. 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 Vendor Services; or (e) paying for Vendor Services. You further acknowledge, agree, and understand that 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). Beny does not make any representations about or guarantee the truth or accuracy of any Vendor’s or Client’s listings or other User Content on the Site; does not verify any feedback or information provided by Users about Vendors or Clients; and does not vet or otherwise perform background checks on Vendors or Clients. You acknowledge, agree, and understand that Beny does not, in any way, supervise, direct, control, or evaluate Vendors or their work and is not responsible for any Job, Job terms or Work Product. Beny makes no representations about and does not guarantee, and you agree not to hold Beny responsible for, the quality, safety, or legality of Vendor Services; the qualifications, background, or identities of Users; the ability of Vendors to deliver Vendor Services; the ability of Clients to pay for Vendor Services; User Content and statements or posts made by Users; or the ability or willingness of a Client or Vendor to actually complete a transaction.
You also acknowledge, agree, and understand that Vendors are solely responsible for determining, and have the sole right to determine, which Jobs to accept; the time, place, manner, and means of providing any Vendor Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of Beny, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Beny will not have any liability or obligations, including under or related to Service Contracts and/or Vendor Services for any acts or omissions by you or other Users; (iii) Beny does not, in any way, supervise, direct, or control any Vendor or Vendor Services; does not impose quality standards or a deadline for completion of any Vendor Services; and does not dictate the performance, methods or process Vendor uses to perform services; (iv) Vendor is free to determine when and if to perform Vendor Services, including the days worked and time periods of work, and Beny does not set or have any control over Vendor’s pricing, work hours, work schedules, or work location, nor is Beny involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Vendor for a Job; (v) Vendor will be paid at such times and amounts as agreed with a Client in a given Service Contract, and Beny does not, in any way, provide or guarantee Vendor a regular salary or any minimum, regular payment; (vi) Beny does not provide Vendors with training or any equipment, labor, tools, or materials related to any Service Contract; (vii) Beny does not provide the premises at which Vendors will perform the work. Vendors are free to use subcontractors or employees to perform Vendor Services and may delegate work on fixed-price contracts or by agreeing with their Clients to have hourly contracts for Vendor’s subcontractor(s) or employee(s); and (viii) Beny does not provide shipping services for any physical Work Product. If a Vendor uses subcontractors or employees, Vendor further agrees and acknowledges that this Section applies to Beny’s relationship, if any, with Vendor’s subcontractors and employees as well and Vendor is solely responsible for Vendor’s subcontractors and employees.
Without limiting the foregoing paragraph, if you are an Vendor or Service Provider, you expressly acknowledge, agree, and understand that: (1) the Vendor is solely responsible for paying its Service Providers for work performed on behalf of the Vendor and that such payments will not be made through the Site; (2) Beny is not a party to any agreement between the Vendor and its Service Providers and does not have any liability or obligations under or related to any such agreement, even if the Vendor or Service Provider defaults; (3) neither Agencies nor Service Providers are employees or agents of Beny; (4) Beny does not, in any way, supervise, direct, or control the Vendor or Service Providers; (5) Beny does not set Agencies’ or Service Providers’ contract terms amongst themselves or with Clients (including determining whether the contract will be hourly or fixed price), fees, pricing, work hours, work schedules, or location of work; (6) Beny does not provide Agencies or Service Providers with training or any equipment, labor, tools, or materials needed for any Service Contract; (7) Beny does not provide the premises at which the Vendor or Service Providers will perform the work; and (8) Beny makes no representations as to the reliability, capability, or qualifications of any Vendor or Service Provider or the ability or willingness of any Vendor to make payments to or fulfill any other obligations to Service Providers, and Beny 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
Vendor acknowledges and agrees that Vendor is solely responsible (a) for all tax liability associated with payments received from Vendor’s Clients and through Beny, and that Beny will not withhold any taxes from payments to Vendor; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Vendor is not covered by or eligible for any insurance from Beny; (c) for determining whether Vendor is required by applicable law to issue any particular invoices for the Vendor Fees and for issuing any invoices so required; (d) for determining whether Vendor 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 Vendor Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if Beny is required by applicable law to withhold any amount of the Vendor Fees and for notifying Beny of any such requirement and indemnifying Beny for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of Beny, Vendor agrees to promptly cooperate with Beny and provide copies of Vendor’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Vendor is engaging in an independent business as represented to Beny.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request Beny 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 Vendors or Clients voluntarily submit to Beny and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Beny; Beny 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 Beny 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 and other User Content highlighted by Beny on the Site or otherwise (“Composite Information”), if any, may include User comments, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Beny will make Composite Information available to other Users, including composite or compiled feedback. Beny provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Beny 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.
Beny 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. Beny 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, Beny reserves the right (but is under no obligation) to remove posted feedback or information that, in Beny’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 Beny. You acknowledge and agree that you will notify Beny of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Beny may rely on the accuracy of such information.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND VENDOR
Section 3 discusses the relationship you may decide to enter into with another User, including Service Contracts between Users, as detailed below.
3.1 SERVICE CONTRACTS
If a Client and Vendor decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the Client and Vendor. Client and Vendor 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 Beny is not a party to any Service Contract, that the formation of a Service Contract between Users will not, under any circumstance, create an employment or other service relationship between Beny and any User or a partnership or joint venture between Beny and any User.
With respect to any Service Contract, Clients and Vendors 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 Beny’s rights and obligations under the Terms of Service, including this Agreement and the applicable Contribution and Payment Instructions.
3.2 DISPUTES AMONG USERS
For disputes arising between Clients and Vendors, you agree to abide by the dispute process that is explained in the Contribution and Payment Instructions 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 Beny will not and is not obligated to provide any dispute assistance beyond what is provided in the Contribution and Payment Instructions.
If Vendor or Client intends to obtain an order from any arbitrator or any court that might direct Beny or our Affiliates to take or refrain from taking any action with respect to a Beny Account, that party will (a) give us at least five business days’ prior notice of the hearing; (b) include in any such order a provision that, as a precondition to obligation affecting Beny, we be paid in full for any amounts to which we would otherwise be entitled; and (c) be paid for the reasonable value of the services to be rendered pursuant to such order.
3.3 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 with regard to confidentiality, then they agree that this Section 3.3 (Confidential Information) 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.
4. WORKER CLASSIFICATION
Section 4 discusses what you agree to concerning whether a Vendor is an employee or independent contractor as detailed below.
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 Beny and a User.
Client is solely responsible for and has complete discretion with regard to selection of any Vendor for any Job. Client is solely responsible for and assumes all liability for determining whether Vendors should be engaged as independent contractors or employees of Client and engaging them accordingly. Client warrants its decisions regarding classification are correct and its manner of engaging Vendors complies with applicable laws, regulations, and rules. Beny will have no input into, or involvement in, worker classification as between Client and Vendor and Users agree that Beny has no involvement in and will have no liability arising from or relating to the classification of a Vendor generally or with regard to a particular Job.
5. Beny FEES
Section 5 describes what fees you agree to pay to Beny in exchange for Beny providing the Site and Site Services to you and what taxes Beny may collect, as detailed below.
5.1 FEES FOR VENDORS
Service Fees. Vendors will pay Beny a service fee for the use of the Site Services as set forth in the Fee and ACH Authorization Agreement and the Direct Contract Terms, for using the Site Services, including the communication, invoicing, reporting, dispute resolution and payment services, including facilitating arbitration services and Hourly Payment Protection, as described in the applicable Contribution and Payment Instructions (the “Service Fees”). The Service Fees (to use the Site Services) are paid by Vendor and User. When a Client pays a Vendor for a Job or when funds related to a Job are otherwise released to a Vendor as required by the applicable Client Contributions (See Section 6.1), Beny will credit the Vendor Connected Account for the full amount paid or released by the Client, and then subtract and disburse to Beny the Service Fee. Vendor hereby irrevocably authorizes and instructs Beny to deduct the Service Fee from the Vendor Account and pay Beny on Vendor’s behalf. In the event the Vendor chooses to withdraw funds in a currency other than U.S. dollars, there may also be a foreign currency conversion charge imposed by Beny or an affiliate and the rate may differ from rates that are in effect on the date of the payment and you may be able to obtain a better rate from your bank or financial institution.
In addition to fees charged by Beny, your disbursement method may also charge activation, maintenance, or other account fees.
5.2 USER FEES
USERS pay Beny a fee for payment processing (Booking/Transaction fee) and administration related to the Vendor Fees they pay to Vendors they engage through the Site, as described in the Fee and ACH Authorization Agreement.
5.3 VAT AND OTHER TAXES
Beny may be required by applicable law to collect taxes or levies including, without limitation, withholding income tax or VAT (while some countries may refer to VAT using other terms, e.g. GST, we’ll just refer to VAT, GST and any local sales taxes collectively as “VAT”) in the jurisdiction of the Vendor (the “Taxes“). In such instances, any amounts Beny is required to collect or withhold for the payment of any such Taxes shall be collected in addition to the fees owed to Beny under the Terms of Service.
5.4 NO FEE FOR INTRODUCING OR FOR FINDING JOBS
Beny does not introduce Clients to Vendors and does not help Vendors secure Jobs. Beny merely makes the Site and Site Services available to enable Vendors to do so themselves and may from time to time highlight Jobs that may be of interest. Therefore, Beny does not charge a fee when a Vendor finds a suitable Client or finds a Job. In addition, Beny does not charge any fee or dues for posting public feedback and composite or compiled feedback, including Composite Information.
6. PAYMENT TERMS
Section 6 discusses your agreement to pay Vendor Service Fees on Service Contracts, what happens if a Client doesn’t pay, and related topics, as detailed below.
6.1 CLIENT CONTRIBUTIONS
Employer Clients determine monthly contribution amounts to be applied to their User accounts. Via ACH,, Beny impounds funds from client’s bank account on record each month. Beny allocates contributions to User Beny accounts predetermined by the client. Users spend contributed funds on the Marketplace.
Once drafted, client contributions are the sole property of the User they are applied to and are non-refundable. Users are authorized to use contributions to purchase services and/or to be reimbursed for services through a Redeem Listing. Clients and Users are not authorized to liquidate contributions into cash transactions.
6.2 CLIENT PAYMENTS ON SERVICE CONTRACTS
Client User becomes obligated to pay applicable amount when they enter into a Service Contract. When Client authorizes the payment of the Vendor Fees for a Fixed-Price Contract on the Site, Client automatically and irrevocably authorizes and instructs Beny or its Affiliates, to charge Client’s Beny Account andPayment Method for split payments for the Vendor Fees.
Client acknowledges and agrees that for all contracts, failure by Client to decline or dispute an invoice or request for payment is an authorization and instruction to release payment, as described more fully in the applicable Contribution and Payment Instructions.
6.3 DISBURSEMENTS TO VENDORS ON SERVICE CONTRACTS
Beny disburses funds that are available in the applicable Vendor Connected Account and payable to a Vendor upon Vendor’s request. Funds paid to Vendors are distributed after charges have settled weekly each Friday.
Notwithstanding any other provision of the Terms of Service Beny, in its sole discretion and except as prohibited by applicable law, may refuse to process, may hold the disbursement of the Vendor Fees or any other amounts and offset amounts owed to us, or take such other actions with respect to the Beny Account as we deem appropriate in our sole discretion if: (a) we require additional information, such as Vendor’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Vendor Fees may be subject to dispute or chargeback; (c) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the disbursement of the Vendor Fees is no longer necessary, Beny will release such hold as soon as practicable.
In addition, notwithstanding any other provision of the Terms of Service and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Job; (ii) discover erroneous or duplicate transactions; or (iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you, or used by your Client if you are a Vendor, despite our provision of the Site Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by instructing Beny to charge the applicable Beny Account or Connected Account, and any other accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your Payment Method, or obtaining reimbursement from you by any other lawful means. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Site and Site Services and close your Account.
If Client is in “default”, meaning the Client fails to pay the Vendor Fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of Beny), Beny will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Client will be deemed to be in default on the earliest occurrence of any of the following: (a) Client fails to pay the Vendor Fees when due; (b) Client fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days after accrual of the charge, an account current after a credit or debit card is declined or expires; (c) Client fails to pay an invoice issued to the Client by Beny within the time period agreed or, if no period is agreed, within 30 days; (d) Client initiates a chargeback with a bank or other financial institution resulting in a charge made by Beny for Vendor Fees or such other amount due being reversed to the Client; or (e) Client takes other actions or fails to take any action that results in a negative or past-due balance on the Client’s account.
If Client is in default, we may, without notice, temporarily or permanently close Client’s Account and revoke Client’s access to the Site and Site Services, including Client’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Vendor Services from other Users through the Site. However, Client will remain responsible for any amounts that accrue on any open Jobs at the time a limitation is put on the Client’s Account as a result of the default. Without limiting other available remedies, Client must pay Beny upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
At our discretion and to the extent permitted by applicable law, Beny or its Affiliates, may, without notice, charge all or a portion of any amount that is owed on any Account to Beny or as Vendor Fees or otherwise to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held by for Client by Beny, or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
Beny does not guarantee that Client is able to pay or will pay Vendor Fees and Beny is not liable for Vendor Fees if Client is in default. Vendor may use the dispute process as described in the applicable Contribution and Payment Instructions in order to recover funds from Client in the event of a default or may pursue such other remedies against Client as Vendor chooses. If Beny recovers funds from a Client in default pursuant to this Section 6.4, Beny will disburse any portion attributable to Vendor Fees to the applicable Vendor to the extent not already paid by Client or credited by Beny through any Payment Protection program.
6.5 NO RETURN OF FUNDS AND NO CHARGEBACKS
Client acknowledges and agrees that Beny or its Affiliates will charge or debit Client’s designated Payment Method for the Vendor Fees incurred as described in the applicable Contribution and Payment Instructions and the Fee and ACH Authorization Agreement and that once Beny or its Affiliates, charges or debits the Client’s designated Payment Method for the Vendor Fees, the charge or debit is non-refundable, except as otherwise required by applicable law. Client also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Client resolve disputes. To the extent permitted by applicable law, Client therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Vendor Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Client initiates a chargeback in violation of this Agreement, Client agrees that Beny or its Affiliates, may dispute or appeal the chargeback and institute collection action against Client and take such other action it deems appropriate.
6.6 PAYMENT METHODS
In order to use certain Site Services, Client must provide account information for at least one valid Payment Method.
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 Beny; 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.
Beny is not liable to any User if Beny does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. Beny will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement.
6.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION
The Site and the Site Services operate in U.S. Dollars. If a User’s Payment Method is denominated in a currency other than U.S. Dollars and requires currency conversion to make or receive payments in U.S. Dollars, the Site may display foreign currency conversion rates that Beny or our Affiliates currently make available to convert supported foreign currencies to U.S. Dollars. These foreign currency conversion rates adjust regularly based on market conditions. Please note that the wholesale currency conversion rates at which we or our Affiliates obtain foreign currency will usually be different than the foreign currency conversion rates offered on the Site. Each User, at its sole discretion and risk, may authorize the charge, debit, or credit of its Payment Method in a supported foreign currency and the conversion of the payment to U.S. Dollars at the foreign currency conversion rate displayed on the Site. If foreign currency conversion is required to make a payment in U.S. Dollars and Beny, as applicable, does not support the foreign currency or the User does not authorize the conversion of such payment at the foreign currency conversion rate displayed on the Site, Beny or one of our Affiliates will charge, debit, or credit the User’s Payment Method in U.S. Dollars and the User’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by the User’s Payment Method provider. The User’s Payment Method provider may also charge fees directly to the Payment Method even when no currency conversion is involved. The User’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at the User’s sole risk. Beny, and our Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. Beny and our Affiliates are not responsible for currency fluctuations that occur when receiving or sending payments to and from the Account.
Beny does not require Vendors to only contact services through the Beny App. Vendors are free to contract services outside of the marketplace.
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 Beny upon request. Nothing in this subsection requires or will be construed as requiring Beny 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 Beny’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. BENY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, USER CONTENT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Beny 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 13 (AGREEMENT TERM AND TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST Beny WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
10. LIMITATION OF LIABILITY
Section 10 discusses your agreement that Beny 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 $2,500, as detailed below.
Beny 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 BENY, 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 BENY, 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) $2,500; OR (B) ANY FEES RETAINED BY BENY WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR VENDOR 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. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
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 Beny is not a party to any contract between Users, you hereby release Beny, 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 Vendor Services provided to Client by a Vendor and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Contribution and Payment Instructions.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
This release will not apply to a claim that Beny failed to meet our obligations under the Terms of Service.
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 Beny, 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 (described in Section 6.4 (Non-Payment)) incurred through use of the Site Services; (b) any Work Product or User Content developed, provided, or otherwise related to your use of the Site Services; (c) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Vendor as an independent contractor; the classification of Beny as an employer or joint employer of Vendor; 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; (d) failure to comply with the Terms of Service by you or your agents; (e) failure to comply with applicable law by you or your agents; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) 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 Beny’s agreement about when and how long this Agreement will last, when and how either you or Beny can end this Agreement, and what happens if either of us ends the Agreement, as detailed below.
Unless both you and Beny 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 to email@example.com. 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. Beny 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 Job entered into between Users. If you attempt to terminate this Agreement while having one or more open Jobs, you agree (a) you hereby instruct Beny to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Jobs have closed on the Site; (c) Beny will continue to perform those Site Services necessary to complete any open Job 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 Beny for any Site Services or such other amounts owed under the Terms of Service and to any Vendors for any Vendor Services.
Without limiting Beny’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke or limit 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 Beny 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 re-register under a new Account without Beny’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 BENY DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, BENY 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 BENY 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 any closure of your Account may involve deletion of any content stored in your Account for which Beny will have no liability whatsoever. Beny, 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, 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 Beny 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. DISPUTES BETWEEN YOU AND BENY
Section 14 discusses your agreement with Beny and our agreement with you about how we will resolve any disputes, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally, as detailed below.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Beny or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, Beny, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Beny (including without limitation any claimed employment with Beny or one of our Affiliates or successors), the termination of your relationship with Beny, or the Site Services (each, a “Claim”) in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Site, Site Services, the Terms of Service, any Service Contract, payments or agreements, any payments or monies you claim are due to you from Beny or our Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination, retaliation or harassment and claims arising under the Defend Trade Secrets Act of 2016, Civil Rights Act of 1964, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, Civil Rights Act of 1991, the Pregnancy Discrimination Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with Beny or the termination of that relationship.
Disputes between the parties that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) or as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Agreement.
14.2 CHOICE OF LAW
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Beny agree to first notify each other of the Claim. You agree to notify Beny of the Claim at Attn: Legal, 199 N 290 W, Suite 200, Lindon, UT 84005 or by email to firstname.lastname@example.org, and Beny agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and Beny then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Beny, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Beny will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
This Arbitration Provision applies to all Users except Users located outside of the United States and its territories.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Beny, and our Affiliates agree to resolve the Claim by final and binding arbitration before an arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Beny ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, the Terms of Service. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Salt Lake County, Utah in accordance with the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect. Arbitration of disputes brought by a User that allege a violation of a consumer protection statute also will be subject to the JAMS Consumer Arbitration Minimum Standards, and such arbitrations will be conducted in the same state and within 25 miles of where the User is located. Claims by Vendors that allege employment or worker classification disputes or will be conducted in the state and within 25 miles of where Vendor is located in accordance with the JAMS Employment Arbitration Rules and Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for “JAMS Comprehensive Arbitration Rules and Procedures,” “JAMS Employment Arbitration Rules,” or “JAMS Consumer Arbitration Minimum Standards.” Any dispute regarding the applicability of a particular set of JAMS rules shall be resolved exclusively by the arbitrator. Any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and Beny will follow the applicable JAMS rules with respect to arbitration fees. In any arbitration under the JAMS Employment Arbitration Rules and Procedures, the Vendor will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, with Beny to make up the difference, if any. In any arbitration under the JAMS Comprehensive Arbitration Rules and Procedures’ Optional Expedited Arbitration Procedures then in effect in which a User makes a claim under a consumer protection statute, the User will pay JAMS arbitration fees only to the extent those fees are no greater than the filing or initial appearance fees applicable to court actions in the jurisdiction where the arbitration will be conducted, or $250.00, whichever is less, with Beny to make up the difference, if any. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between Beny and you that is or was already pending in a state or federal court or arbitration before the expiration of the opt-out period set forth in Section 14.4.4, below. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with a government agency, including without limitation the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. Beny will not retaliate against you for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act.
14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, below, of this Arbitration Provision is deemed to be unenforceable, you and Beny agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
14.4.3. CLASS AND COLLECTIVE WAIVER
Private attorney general representative actions under the California Labor Code are not arbitrable, not within the scope of this Arbitration Provision and may be maintained in a court of law. However, this Arbitration Provision affects your ability to participate in class or collective actions. Both you and Beny agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS rules, disputes regarding the enforceability, revocability, scope, or validity or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. You and Beny agree that you will not be retaliated against, disciplined or threatened with discipline as a result of your filing or participating in a class or collective action in any forum. However, Beny may lawfully seek enforcement of this Arbitration Provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class or collective actions or claims.
14.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
You may opt out of the Arbitration Provision contained in this Section 14 by notifying Beny in writing within 30 days of the date you first registered for the Site. To opt out, you must send a written notification to Beny at Attn: Legal, 199 N 290 W Suite 200, Lindon, UT 84005 that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a statement indicating that you wish to opt out of the Arbitration Provision. Alternatively, you may send this written notification to email@example.com. Opting out of this Arbitration Provision will not affect any other terms of this Agreement.
If you do not opt out as provided in this Section 14.4.4, continuing your relationship with Beny constitutes mutual acceptance of the terms of this Arbitration Provision by you and Beny. You have the right to consult with counsel of your choice concerning this Agreement and the Arbitration Provision.
14.4.5. Enforcement of this Arbitration Provision.
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in Section 14.4.3, above, is deemed to be unenforceable, you and Beny agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
Section 15 discusses additional terms of the agreement between you and Beny, 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 Beny 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 Beny 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 Beny 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 Beny unless they are agreed in a written instrument signed by a duly authorized representative of Beny or posted on the Site by Beny. 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.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Beny’s prior written consent in the form of a written instrument signed by a duly authorized representative of Beny. Beny may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
15.4 SEVERABILITY; INTERPRETATION
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
15.5 FORCE MAJEURE
The parties to this Agreement 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, pandemics, epidemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Beny makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Site or Site Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
Section 16 gives you some definitions of capitalized terms that appear in the Terms of Service but other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.
“Benys” the currency of the Beny marketplace.
“Beny Account” a virtual account on the Beny App which stores Benys for use on the Marketplace.
“Booking/Transaction Fee” is a fee that a Client User pays when booking a service or redeeming Benys. The fee is charged at the time the User checkouts on the marketplace.
“Client” means any authorized User utilizing the Site or Site Services, including Super Admin Users, Team Members, and other users, to seek and/or obtain Vendor Services, including from another User.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Job or the suitability of another User for the Job, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Vendor or Client; (b) was lawfully received by User without restriction from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Redeem Listing” is a type of listing Beny creates for a Vendor which allows Client Users to consume the Vendor’s service and then submit a receipt to Beny through the app after the fact to receive reimbursement in dollars for those services.
“Vendor” means any authorized User utilizing the Site or Site Services to advertise or provide Vendor Services to Clients, including Vendor Accounts that are Vendor Accounts or, if applicable, Service Providers. A Vendor is a customer of Beny with respect to use of the Site and Site Services.
“Vendor Connected Account” is the software account where where vendors receive their service fees.
“Vendor Fees” means: the fixed fee agreed between a Client and a Vendor; and any tips or other payments made by a Client to a Vendor.
“Vendor Services” means all services performed for or delivered to Clients by Vendors.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to Beny, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as Beny may accept from time to time in our sole discretion.
“Job” means an engagement for Vendor Services that a Vendor provides to a Client under a Service Contract on the Site.
“Service Contract” means, as applicable, the contractual provisions between a Client and a Vendor governing the Vendor Services to be performed by a Vendor for Client for a Job.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Beny App” means the online platform accessed using Beny’s downloaded application or other software that enables time tracking and invoicing, chat, and screenshot sharing with other Users.
“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any Site Visitor or User post to any part of the Site or provide to Beny, including such content or information that is posted as a result of questions.
“Work Product” means any tangible or intangible results or deliverables that Vendor agrees to create for, or actually delivers to, Client as a result of performing the Vendor Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
These Beny Direct Contracts Terms (“Direct Contracts Terms”) define the terms and conditions under which Beny offers and you agree to use Beny’s Direct Contracts service, as described in these terms (“Direct Contracts Services”), and are part of and incorporate by reference the Beny User Agreement and other Terms of Service. The Direct Contracts Terms are in addition to and, except where explicitly stated, do not supersede, replace, or limit other similar terms in the Terms of Service. Capitalized terms not defined herein are defined in the User Agreement or elsewhere in the Terms of Service.
IN ORDER TO USE BENY’S DIRECT CONTRACTS SERVICE YOU AGREE TO BE BOUND BY THE DIRECT CONTRACT TERMS AND THE ARBITRATION AND CLASS ACTION WAIVER IN THE USER AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, INCLUDING THE ARBITRATION AND CLASS ACTION WAIVER, YOU MAY NOT ACCESS OR USE ANY DIRECT CONTRACTS SERVICES.
- HOW IT WORKS
With the Direct Contracts Service, a Vendor can create service listings on the marketplace. If the Client purchases and/or books a service, the Client and Vendor will enter directly into a contract (the “Direct Contract”).
1.1 Fixed Price Direct Contracts
Upon acceptance of the booking, the Client will authorize Beny to charge their Beny account balance and/or their payment method (“Direct Contract Funds”). When the work is completed, the Vendor will request that the Client release the Direct Contract Fund. If the Client approves the work or fails to approve the work within two business days, Beny will release the Direct Contract Funds to the Vendor. Once the Direct Contract Funds are released from, the Direct Contract will end.
Any Vendor that is eligible to use the Site is eligible to use the Direct Contract Services, subject to the limitations on Client eligibility in this Section 2.
Please reference the Fee and ACH Authorization Agreement.
- ROLE OF BENY AND USER RESPONSIBILITIES
You understand and agree that Beny is not a party to any Direct Contract, is not involved in or responsible for any work performed by Vendors, is not involved in or responsible for any payment made under a Direct Contract, and has no control over any Vendor or Client. Beny does not have any power or authority to, and does not, determine any eligibility standards for any Direct Contract, select or contract any Vendor to provide services to a Client, determine or control any term or condition of the Direct Contract or Project, or cause any Vendor or Client to accept any Direct Contract or perform any Vendor Services. Beny Escrow provides escrow services, but does not guarantee that Vendor will be paid.
- OTHER TERMS
Together with the Beny User Agreement and other Terms of Service, these Direct Contract Terms represent the entire agreement with Beny and supersede all prior agreements and understandings with respect to the matters covered. You agree that you did not accept the Direct Contract Terms based on any representations, whether written or oral, other than those contained herein. No modification of or amendment to the Direct Contract Terms, nor any waiver of any rights, will be effective unless in writing signed by you and Beny. Notwithstanding the foregoing, to the extent permitted by applicable law, Beny may amend the Direct Contract Terms with prior notice at any time. The posting of the amended Direct Contract Terms on Beny’s Site will constitute notice. Your continued use of the Direct Contract Services after the effective date of a revised version of the Direct Contract Terms or notice to you of updated Direct Contract Terms constitutes your acceptance of its terms and agreement to be bound by its terms. In the event of a conflict between these Direct Contract Terms and the applicable escrow instructions, the applicable escrow instructions shall govern; in the event of a conflict between these Direct Contract Terms and any other agreement in the Terms of Service, these Direct Contract Terms shall govern.