This Services Agreement (“Agreement”) becomes effective upon your reading and hitting “accept” within the application (“App”) (the “Effective Date”) between You (“User”) and Service Herd, LLC (“The Herd”). The User and The Herd are sometimes collectively referred to herein as the “Parties” and individually as a “Party”.
User wishes to be provided with the Services (collectively the “Services” as defined below) by The Herd and The Herd agrees to provide the Services to the User in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
1.01. The User hereby agrees to enable The Herd to provide Services through the Herd Platform (the “Platform”) and App. The Platform allows User to seek and fufill any and all of User’s requests for services (“Service Calls”) from an Independent Service Provider (“ISP”) that are provided in The Herd App. The Herd does not determine the method, details, and means of performing the Service Call, as The Herd is merely a medium between User and those ISP’s who are connected on The Herd.
1.02. The Parties acknowledge and agree that during the term of this Agreement the Services may be modified and/or expanded from time to time upon acceptance of agreement.
1.03. User acknowledges and agrees that The Herd may, at its sole discretion, use subcontractors and consultants to perform some of the Services to be provided under this Agreement. In the event The Herd utilizes subcontractors or consultants to perform any of the Services, The Herd shall remain responsible to User for performance under this Agreement.
2. Fees and Expenses
2.01. Fees. The Herd is not a party to any contract entered into between the User and the ISP. As a User, you will be billed directly from the ISP, and The Herd will act as the medium for you to have the option to pay the ISP for any Service Calls completed. As a User you agree that the fees for the Services that the ISP will perform shall be the amount disclosed to you prior to your acceptance of any Service Calls regardless of your awareness of such fees or the amount thereof.
2.02. Billing and Payment. The Platform Payment System (“PPS”) uses Stripe©, a third-party payment processor which uses the Stripe Checkout Service (“SCS”), a technology that allows you as User to make payments.
The Herd is not responsible for payments made through the PPS to any ISP and The Herd merely provides the medium for which the User and ISP can be connected on a trusted Platform and can agree on price for such Service Calls. The Herd is designed with the intent that Users directly pay ISP’s who provide Service Calls with ease through the Platform. The Herd does not manage and is not responsible for any billing disputes between the User and the ISP.
For any payment you submit as a User through the PPS to pay for Service Calls, you will use a credit, debit card, checking, Android Pay, Apple Pay, “Herd Credits” or PayPal account, (as “Payment Method”). You will be charged through your Payment Method on your account after the Services are completed. There may be an option to provide a tip to your ISP should a tip be applicable to the Service Call. Except for any applicable Service Herd Guarantee or other guarantee an ISP may provide to you, no refunds or credits will be provided once the Customer has submitted payment through the PPS.
The Herd may redirect or link to other websites on the Internet, specifically Stripe©. This redirection may otherwise include references to information, products or services made available by unaffiliated third parties. While we make every effort to work with trusted, reputable providers, from time to time such sites may contain information, material or policies that some may find inappropriate or personally objectionable. You agree and understand that we are not responsible for the accuracy, completeness, decency or legality of content hosted by third party websites, nor are we responsible for errors or omissions in any references made on those websites. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with the site or party by us, or any warranty of any kind, either express or implied.
2.03. Promotions. The Herd may issue promotions. These promotions may include Herd Credits which a User can use for Service Calls solely within The Herd Platform. Any other promotion may be subject to separate terms and conditions, which will be provided to you by The Herd.
2.04. Compliance with Laws; Permits and Licenses. The Herd represents that ISP’s listed within The Herd Platform are, at their own expense, operating in full compliance with all governmental laws, regulations and requirements applicable to the duties The User expects and requests. It shall be the sole responsibility of the ISP to pay for any necessary licenses, permits, insurance and approvals as may be necessary for the performance of the Service Calls under this Agreement.
3. Warranty. The Service Calls are those services which the User requests through The Herd Platform. The Herd does not warrant in any form the results or achievements of the Service Calls provided or the resulting work product. The Herd warrants that Service Calls will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 3 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. THE HERD DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. THE HERD SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY ISP’S IDENTIFIED OR REFERRED TO THE USER BY THE HERD, THE PLATFORM OR THE APP DURING THE TERM OF THIS AGREEMENT AND SURVIVING IT, PURSUANT TO ANY STATEMENT OF WORK (SOW) OR OTHERWISE. THE HERD WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT (INCLUDING MOBILE DEVICES), COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE HERD PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE HERD PLATFORM.
4. Herd Members/ ISP.
4.01. Herd represents to its Users that no person with a theft related conviction, sex-related conviction, conviction for a crime violent in nature or a felony drug conviction shall be permitted to sign-up on the Herd Platform. Our ISP’s agree to cooperate with any request from Herd for background information, and we may provide you with certification that the background request was completed and came back showing none of the above listed convictions.
The Herd represents, warrants and covenants that our ISP: (i) are and will continue to be fully experienced and properly qualified to perform the Service Call and all of its respective obligations under your agreement with the ISP; (ii) have the financial and technical capability to satisfy the respective obligations hereunder and (iii) are properly insured, licensed, equipped, financed, and organized to perform the Service Calls in the territory and any other jurisdiction where the performance of such Service Call may be required.
4.02. Should you have any issue with the ISP including the ISP arriving late or failing to arrive at, you can contact the ISP through the App. If you cannot reach a resolution, or would like to file a complaint with The Herd, please email The Herd at firstname.lastname@example.org.
5. Ownership of The Herd Platform, Application. The Herd, and any Platform described hereunder are and shall remain the sole and absolute property of The Herd, subject to a worldwide, non-exclusive license to User for its internal and specific use as intended under this Agreement, and The Herd retains all moral rights therein.
6. Confidential Information
6.01. Confidential Information. The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information. “Confidential Information” shall mean (i) information concerning a Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, Users, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any tours of or while present at a Party’s facilities or residence; and (iv) all other non-public information provided by the Disclosing Party hereunder. The Herd’s use or disclosure of information regarding or relating to the development, improvement or use of any of The Herd’s products shall remain the property of The Herd. In sum, all Confidential Information shall remain the property of the Disclosing Party.
6.02. Use of Confidential Information; Standard of Care. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, consultants and representatives who have a need to know such Confidential Information to fulfill the business affairs and transactions between the Parties contemplated by this Agreement. The Receiving Party shall always remain responsible for breaches of this Agreement arising from the acts of its employees, subcontractors, consultants and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement, and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of any third party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
6.03. Exceptions. Confidential Information does not include information that: (a) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (b) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (c) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (d) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (e) is disclosed by Receiving Party with Disclosing Party's prior written approval.
6.05. Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated or accessed in violation of this Agreement, it will immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination or publication, and take all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
6.06. Return of Confidential Information; Survival. Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement. Notwithstanding any expiration or termination of this Agreement, Receiving Party’s obligations to protect the Confidential Information pursuant to this Section will survive for two (2) years after the expiration or earlier termination of this Agreement.
7. Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against all third-party claims (including those arising against or out of any agreement with an ISP), losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of the Indemnifying Party’s (i) gross negligence or willful misconduct or (ii) its material breach of any of the terms of this Agreement. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.
SECTION 7 STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
8. LIMITATION OF LIABILITY; ACTIONS
EXCEPT FOR THE PARTIES CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 OF THIS AGREEMENT AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION OR COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SUBJECT TO THE USER’S ACCEPTANCE OF THIS AGREEMENT, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE USER TO THE ISP. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
9. Term. This Agreement shall continue forever pursuant to the User’s usage of The Herd Platform and/or App, from the Effective Date unless earlier terminated in accordance with the provisions in Section 10.
10. Termination . Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured. The Herd may terminate this agreement should The User violate any User Agreement terms or for any other reason The Herd finds necessary, without cause. The User may terminate this Agreement by deactivating their account and no longer using The Herd Platform or App.
11. Relationship of the Parties. The relationship of the Parties hereto is that of a “contract for services”. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between The Herd and any ISP.
12. Force Majeure. The Herd is not liable hereunder for any failure or delay in the performance of its or any ISP’s obligations under this Agreement, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement or between the User and ISP, for so long as such force majeure event is in effect.
13. Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in Orange County, Florida. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.
14. Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
15. Collection Expenses. If The Herd incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, User agrees to reimburse The Herd for all such costs, expenses and fees.
16. Assignment. The Herd may subcontract its obligations and rights to a third-party. Neither Party may assign this Agreement, either in whole or part. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third-party beneficiaries to this Agreement.
17. Severability. If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
20. Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
21. Authorized Signatories. It is agreed and warranted by the Parties that upon the User hitting “accept” is accepting this Agreement in its entirety and is authorized to execute such an agreement. No further proof of authorization shall be required.
22. Notices. All notices or other communications required under this Agreement shall be sent through The Herd Platform and shall be deemed effective when received and/or made within the Platform. Should User wish to send any correspondence in writing such correspondence shall be addressed to:
1013 Centre Road
Wilmington, DE 19805
23. Waiver. The failure of The Herd to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by an authorized representative of The Herd in writing.
24. Entire Agreement; Modification. This Agreement is the entire Agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.