HOTSPRING PLATFORM USER SERVICES AGREEMENT
This Hotspring Platform User Services Agreement (“Agreement”) describes the terms and conditions under which you engage Hotspring’s managed services (“Services”) to initiate and conduct projects for digital content creation by using the site Platform (“Hotspring Project(s)” ), mobile applications and other online transaction portals owned, operated, branded or made available by Hotspring, including but not limited to: (a) the web and mobile-optimized versions of the websites identified by the uniform resource locator “www.thehotspring.com”; (b) the web and mobile applications of the Hotspring platform identified by the uniform resource locator “app.thehotspring.com; and (c) any services performed by Hotspring in relation thereto (all collectively referred to as the “Hotspring Platform” or “Hotspring Platform Services”). You shall mean an individual accessing the Platform and individual and corporate contracting parties and members as permitted pursuant to Section 1.1 below. By accepting this Agreement as you access the Hotspring website, application or Platform, You agree that this Agreement will apply whenever you access the website, when you use the Platform, and with respect to performance of services bid or awarded via the Platform. IF YOU DO NOT AGREE, DO NOT USE THE HOTSPRING PLATFORM SERVICES
1. Application and Acceptance of Terms
1.1 Contracting Party. This Agreement is entered into between You (also referred to as “Member” hereinafter) and Hotspring (“Hotspring” or “we”) for use of Hotspring’s certain content creation and project management services offered through the Hotspring Platform as described hereunder. For the purpose of this Agreement, the term “Client” means the registered Member who purchases or acquires the content or service(s) pursuant to a Hotspring Project, and the term “Contractor” means the registered Member who designs and provides the content or service(s) as a subcontractor to Hotspring pursuant a Hotspring Project. If you represent a company you name on this Platform as a Client or Contractor, you represent that you are authorized by that company to bind the company to this Agreement. To the extent such company did not authorize you, you remain solely responsible for all activity undertaken with respect to the Platform and Services. A company, corporation, partnership or other non-individual entity may be a contracting party subject to member invitation by or other membership approval by Hotspring and registration in the corporate name with identified relationship contact personnel designated as authorized users of the Hotspring Platform. You authorize Hotspring, directly or through third parties, to make any inquires we consider necessary to validate your identity and Hotspring reserves the right to suspend or limit your access to the Platform in the event we unable to obtain or verify to our satisfaction the data which request for such validation.
2. Hotspring Platform and Services.
2.1 Hotspring Ownership. All rights, title and interest in the Hotspring Platform will remain with and belong exclusively to Hotspring.
2.3 Hotspring Platform Services Description. Hotspring’s Platform Services are designed to facilitate registered members of the Hotspring Platform to bid, place, accept, manage and complete projects for the design and delivery of content and related project management services online within the Hotspring Platform. Hotspring manages services offered by freelancers and companies registered on and performing Services on its Hotspring’s Platform. As more fully set forth in Section 3 below, when a Client engages Hotspring to bid out and manage Services for Client via Client Services Agreement, the contractors selected to perform such work through shall enter into a separate Subcontractor Agreement with Hotspring governing the terms of the specified Hotspring Project (“SubContractor Agreement”).
2.4 Platform Modification. Hotspring reserves the right to change, upgrade, modify, limit or suspend Hotspring Platform or Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice without any liability for any losses or damages arising out of or in connection with such suspension or termination. Hotspring further reserves the right but shall not be obliged to introduce new features, functionalities or applications to the Hotspring Platform or Services or to future versions of such Platform and Services which shall be governed by this Agreement, unless otherwise expressly stated by Hotspring.
2.5 Members Only. Hotspring’s Service Platform is only available to registered members of the Hotspring Platform. Registration is by invitation only and may be canceled or deactivated at Hotspring’s sole discretion as set forth herein. If your membership of the Hotspring Platform expires or is terminated early for any reason, you are not eligible to use the Hotspring Platform Services. Hotspring reserves the right to suspend or terminate your member registration at any time, for any reason, at its sole discretion, including but not limited to (i) non-compliance with member conduct requirements, (ii) non-payment of undisputed invoices, or (iii) inactivity of member for more than six (6) months. Suspension of membership may include (i) suspension or cessation of ongoing project work, and (ii) suspension of ability to initiate (bidding for or accepting, as applicable) new projects via the Hotspring Platform. In the event that you have a valid project under this Agreement at the point at which your membership registration on the Hotspring Platform is terminated, you expressly acknowledge and agree that Hotspring shall have the full power, authority and discretion to reject or cancel a project without any liability for any losses or damages arising out of or in connection with such refusal or cancellation of services.
2.6 Member Account and Authorized Users. In order to access some features of the Services, you may have to register or create an account. You may never use another’s account without permission. When creating your account, you must provide accurate and complete data and identify all authorized users of your account. You and all your authorized users must access the Hotspring Platform via your entity’s email domain, and you agree to deactivate your email domain user accounts for any departed employees or agents who are no longer in your employ or is no longer authorized to use the Hotspring Platform on your behalf. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. To the extent, you are requested to complete any member profile requirements, you shall comply with such request(s) in order to access the Platform and receive Services. You must notify Hotspring immediately of any breach of or unauthorized use of your account. Hotspring will not be liable for any unauthorized access of your membership account. Although Hotspring will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Hotspring or others due to such unauthorized use.
2.7 Hotspring’s Records. In case of any cancelled services or dispute in connection with any Hotspring Project, the records of Hotspring shall take precedence and be conclusive. Hotspring reserves the right to ask either or both parties to provide data for its records in the event of a cancellation or dispute.
2.8 Member Data. It is a condition of your use of the Services that all the data you provide will be correct, current, and complete. Registered Members may post data, including personal data, on the Hotspring Platform regarding their past work experience, prior projects and other data. You are solely responsible for all data, information and other content that you upload, post, or otherwise provide or store in connection with your use of the Hotspring Platform, including all Client Content (as defined below) and your own adequate backup of any provided data and Client Content. Hotspring reserves the right to review all submissions and media to the Hotspring Platform and to remove any data, communications or media for any reason, at any time, without prior notice, at our sole discretion and without any recompense to the submitter or poster.
2.9 Hotspring Reservation of Rights with respect to Membership Status. Hotspring reserves the right to suspend or terminate your member registration and access to the Hotspring Platform, including directing Contractors to suspend or cease work on a Hotspring Project under any Client Services Agreement or Subcontractor Agreement initiated via the Hotspring Platform, at any time, for any reason, in its sole discretion, including but not limited to (i) non-compliance with member conduct requirements, (ii) non-payment of undisputed invoices, or (iii) inactivity of member for more than six (6) months. Suspension of membership may include (i) suspension or cessation of access to the Hotspring Platform and ongoing Hotspring Project work, and (ii) suspension of ability to initiate (bidding for or accepting, as applicable) new Hotspring Projects via the Hotspring Platform.
2.10 Hotspring Reservation of rights with respect to Member Data. With respect to Member posted data, Hotspring reserves the right (but is not obligated) to do any or all of the following:
(a) Record posted data or communication(s) on the Hotspring Platform;
(b) Investigate an allegation that posted data or a communication(s) does not conform to the terms and conditions of this section and determine in its sole discretion to remove or request the removal of the posted data or communication(s).
(c) Remove posted data or communication(s) which are abusive, illegal, or disruptive, or that otherwise fail to conform with these terms and conditions.
(d) Terminate a registered member’s access to any or all portions of the Hotspring Platform upon any breach of these terms and conditions;
(e) Monitor, edit, or disclose any posted data or communication on the Hotspring Platform; or
(f) Edit or delete any communication(s) posted on the Hotspring Platform regardless of whether such communication(s) violate these standards.
2.11 Hotspring Platform Data. If you have applied for and/or used the Hotspring Platform Services, you acknowledge and agree that Hotspring shall have the right to use the data you may provide about you on the Hotspring Platform or via written communication to Hotspring, including but not limited to your credit data, business data and personal data (such as Member applicant name and address) data(the “Collected Data”) to facilitate the administration, processing, and operation of your use of the services.
2.12 Hotspring Feedback Rights. You may choose or Hotspring may invited you to submit comments or ideas about the Hotspring Platform Services, including without limitation how to improve our platform and services (“Feedback”). Hotspring may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. You further agrees that Hotspring may aggregate data you post, provide or generate in your use of the Platform and Services, along with other learnings, logs, and data regarding use of the Services so that results are non-personally identifiable with respect to You (“Aggregated Anonymous Data”). You agree that Hotspring will have the right to generate Aggregate Anonymous Data and that Aggregate Anonymous Data is the property of Hotspring, which Hotspring may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Hotspring products and services and to create and distribute reports and other materials).
2.13 Your Representations and Warranties. You represent and warrant that: (a) you will use the Platform and Services in good faith and in compliance with all applicable laws and regulations, including laws related to anti-money laundering and counter-terrorism financing; (b) all data and material you provide in connection with the use of the Platform and Services is true, lawful and accurate, and is not false, misleading or deceptive; (c) you will not use the Platform or Services to defraud Hotspring, our affiliates, or other members or users of the Hotspring Platform or engage in other unlawful activities (including without limitation dealing in products prohibited by law); (d) to the extent you upload content to the Platform or contract to provide content to a Hotspring Client you have the legitimate right to sell, distribute or export the products using the Services and such content does not infringe any third party’s rights; and (e) in case that you are a Contractor of services, you will provide the services ordered with reasonable care and skills.
2.14 Hotspring Reservation of Rights. Hotspring owns and retains its respective rights in all Hotspring logos, company names, marks, trademarks, copyrights, trade secrets, know-how, patents and patent applications that are used or embodied in or otherwise related to the Hotspring Platform. Hotspring grants not rights or licenses whatsoever to you under this Agreement. Upon request and consent, Hotspring may allow you to use the Hotspring logo.
2.15 Release of Hotspring. You agree that you will not hold Hotspring and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from your use of the Platform or Services pursuant to this Hotspring User Platform Services Agreement.
2.16 Indemnification by Member. You agree to indemnify Hotspring and our affiliates, employees, directors, officers, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) actual or consequential, foreseeable or unforeseeable which may arise, directly or indirectly, from your use of the Services, your breach of this Agreement, or your infringement of any law or rights of a third party in the course of accessing and using the Platform and Services.
3. Relationship with Clients and Contractors
3.1 Types of Transactions & Due Inquiry. For any type of Hotspring Project or access to the Hotspring Platform, in its discretion, Hotspring may limit any or all of the Platform Services to a specified group of Members in accordance with the relevant project terms. The types of Hotspring Projects and other benefits, features and functions of the Hotspring Platform Services available to a registered member may vary for different countries and regions. No warranty or representation is given that the same type and extent of transactions, benefits, features and functions will be available to all Members. Only after such appropriate due diligence, thorough review of Hotspring’s Project offerings including the terms and conditions of Hotspring’s service agreements applicable to You, and thorough screening of any Contractor Hotspring proposes to you should you come to any conclusions or make any decisions about whether Hotspring or any Contractor proposed by Hotspring is right for you and your specific project needs or requirements.
3.2. Client Initiation of a Hotspring Project and Engagement. Client shall begin a Hotspring Project by submitting and accepting an order for products or services online using the Client Services Agreement on the Hotspring Platform. Hotspring may refuse to process or cancel, without liability for any losses or damages arising out of or in connection with such refusal or cancellation, any Hotspring Project which in Hotspring’s reasonable opinion, has insufficient information to constitute a binding contract.
3.3 Client Content on the Hotspring Project. In the course of initiating or tracking a Hotspring Project on the Platform, Client agrees that by uploading any materials. Footage, media assets, information, photography, writings or other creative content (hereinafter and as defined in a Client Services Agreement collectively “Client Content”) on the Hotspring Platform like a photo or video, (a) you grant to Hotspring a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, post, transmit and distribute the media and any Client Content material included in the media within the Platform in order to publish on the Platform for access by Client and Contractor to facilitate performance of Services pursuant to a Client Services Agreement; (b) you certify that any person pictured in the submitted Client Content (or, if a minor, his/her parent/legal guardian) authorizes Hotspring to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in such media; (c) you acknowledge that you bear sole responsibility for adequate security, protection and backup of Client Content and (d) you agree to indemnify Hotspring and its affiliates, directors, officers and employees and hold them harmless from any and all claims and expenses, including attorneys’ fees, arising from the media and/or your failure to comply with these the terms described in this document. For clarification, any public use or posting of any uploaded media on the Hotspring Platform would be subject to notice to and consent by the party which uploads the Client Content, and the consenting party shall warrant authorization to consent to all media which is the subject of the notice unless and to the extent consent is specifically disclaimed. Hotspring will have no liability to you for any unauthorized access or use of any of the Client Content or any corruption, deletion, destruction or loss of any Client Content.
3.4. Subcontractor Engagement. Hotspring shall arrange for Contractors to perform the work requested by a Client Service Agreement, and a Contractor shall accept the work by completing a SubContractor Agreement with Hotspring. Hotspring’s acceptance of a Client Services Agreement is conditioned upon acceptance by Contractors of all work required under the Client Service Agreement. The Effective date of the Agreement and Commencement Date of the Client Services Agreement shall be recorded upon bid approval by a client user. If you are a Contractor, you are required to provide validation details subject to verification and confirmation by Hotspring and our affiliates and register all freelancers working on the Hotspring Platform in connection with a Hotspring Project as Members on the Hotspring Platform.
3.5 Payment Processing. Acceptance and payment of funds between users and Hotspring shall be transacted via the Platform (“Payment Processing”). You are responsible for making all arrangements necessary to access and pay invoices provided via the Hotspring Platform. Payment shall be made to Hotspring pursuant to the Client Service Agreement, or by Hotspring pursuant to a SubContractor Agreement. Any invoice disputes shall be handled pursuant to the terms of the Client Service Agreement or SubContractor Agreement (as applicable). Hotspring shall have the right to offset such its fees and disputed fees from other amounts due and payable to the respective parties. Hotspring may change or add other payment processing services at any time upon notice to you, which may be subject to additional terms or conditions. Hotspring has no obligation to make payment to Contractor to the extent payment is not made by Client. In all cases relating to this Agreement or Client Service Agreements or SubContractor Agreements, if no currency is so specified, then the default currency is US Dollars and invoices shall be paid in US Dollars.
4.1 Confidential Obligations. You shall keep confidential all confidential information provided by other members of the Hotspring Platform or by Hotspring or any of its affiliates in connection with any access to the Hotspring Platform or a Hotspring Project. At all times during a project or following the termination of a project, you agree to not to disclose, share, publish, for any reason whatsoever, any confidential information and/or material, in whole or in part, such as a script, a storyboard, visual and/or set elements, and any such information, or Client Content , relating directly or indirectly to another Member, Contractor, Client, and/or their clients, other than as permitted to disclose to authorized users pursuant to a Client Service Agreement or Subcontractor Agreement, nor to use, exchange, reproduce, keep or alienate confidential information for your own benefit or for the benefit of any other natural or legal person or for any purpose other than what is required in the normal course of your involvement with the Platform. All best efforts will be made by all parties to this Hotspring User Platform Services Agreement to protect the confidentiality of any content, information or data submitted to the Platform by an authorized user throughout their business relationship and thereafter, including all Client Content and Deliverables. All parties to this Agreement will have no right to advertise commercialize or make public in any way it’s involvement or membership with this Platform unless expressly allowed in writing by Hotspring.
4.2 Confidential Information. All information and material provided by another member of the Hotspring Platforms or by Hotspring or any of its affiliates will be deemed to be confidential information unless such information or material is already in the public domain or has subsequently becomes public other than due to your breach of the confidential obligations.
4.4 Data Protection and Privacy Role of Members. Members acknowledge that they have their own data protection and privacy compliance responsibilities with respect to personal data of other Members (including Clients and Contractors) that the Member processes. Members represent and warrant, and undertake to Hotspring to ensure, that in relation to such personal data they are and will be fully compliant with all applicable data protection and privacy laws, including without limitation maintaining their own records of such personal data independently of the platform (to the extent required under applicable laws), complying with direct marketing laws, and responding to requests by individuals to exercise their rights under such laws. Neither Hotspring nor any of its affiliates is responsible or liable for a Members fulfillment of their obligations under applicable data protection and privacy laws.
4.5 Intellectual Property Rights. Member acknowledges that the Hotspring Platform Services and all intellectual property rights embodied in them are and will remain the property of Hotspring. Member will have no right, title or interest in or to the Hotspring Platform Services. There shall be no licenses or rights implied under this Agreement, based on any course of conduct, or other construction or interpretation thereof. All rights and licenses not expressly granted are reserved by Hotspring.
5. Disclaimers and Limitation of Liability.
5.1 No Warranty. You expressly agree that your use of the Platform and Platform Services is at your sole risk. TO THE FULL EXTENT PERMITTED BY LAW THE PLATFORM AND SERVICES ARE PROVIDED ON THE “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASES, AND HOTSPRING MAKES NO REPRESENTATION OR WARRANTY THAT THE PLATFORM AND PLATFORM SERVICES WILL BE UNINTERRUPTED, COMPLETED, TIMELY OR ERROR FREE. HOTSPRING MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, TRUTHFULNESS AND COMPLETENESS OF THE INFORMATION OR DATA PROVIDED BY ANY MEMBER OF THE HOTSPRING PLATFORM. HOTSPRING DOES NOT ENDORSE OR RECOMMEND ITS MEMBERS, AND NOTWITHSTANDING IDENTITY VALIDATION EFFORTS, HOTSPRING DOES NOT REPRESENT OR WARRANT EACH MEMBER’S PURPORTED IDENTITY ON THE WEBSITE AND PLATFORM OR THE ACCURACY OF ANY INFORMATION OR DATA PRESENTED BY MEMBERS ON ITS PLATFORM YOU WILL BE SOLELY RESPONSIBLE FOR ALL CONSEQUENCES RESULTING FROM YOUR OWN JUDGEMENT AND DECISION TO USE OR OTHERWISE RELY ON SUCH INFORMATION or DATA. HOTSPRING AND OUR AFFILIATES FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY DISCLAIMED AND EXCLUDED.
5.2 Exclusions and Limitation of Liabilities. TO THE FULL EXTENT PERMITTED BY LAW, HOTSPRING SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF DATA, WHETHER IN CONTRACT, NEGLIGENCE, TORT, EQUITY OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE TRANSACTION SERVICES. THE AGGREGATE LIABILITY OF HOTPSPRING AND OUR AFFILIATES AND AGENTS ARISING FROM THE PLATFORM AND PLATFORM SERVICES SHALL NOT EXCEED US$1,000.
5.3 SOME OR ALL OF THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IF YOUR STATE, PROVINCE OR COUNTRY DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THESE JURISDICTIONS, HOTSPRING’S LIABILITY WILL BE LIMITED OT THE GREATEST EXTENT PERMITTED BY LAW.
6. Force Majeure
6.1 Force Majeure. Under no circumstances shall Hotspring and our affiliates and agents be held liable for any delay or failure or disruption of the Platform and Platform Services resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, acts of God, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, terrorism, war, governmental actions, orders of domestic or foreign courts or tribunals.
7.1 Notices. Except, as explicitly stated otherwise, legal notices shall be served on you by sending notices to the email address in your latest membership profile on the Hotspring Platform. Notice shall be deemed given 24 hours after email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you legal notices by mail to the address in your latest membership profile in which case the notice shall be deemed given five days after the date of mailing. Except as explicitly stated otherwise, legal notices shall be served on Hotspring by sending the notices to Hotspring personally, by courier or certified mail at 1115 Broadway, Floor 10, New York, NY 10010.
8. Governing Law; Jurisdiction
8.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. Both parties submit to the personal jurisdiction of and venue in the state and federal courts in the State of Delaware. The parties further agree that any cause of action arising under this Agreement shall exclusively be brought in such courts, and waive any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or any transactions contemplated hereby
8.2 Limitation Period. In any event, you may not make any claim against Hotspring or our affiliates under this Agreement after one year from the occurrence of the matter giving rise to the claim.
8.3 Injunctive Relief. Hotspring may seek injunctive or other equitable relief against the other party in any court of competent jurisdiction.
8.4 Hotspring will be entitled to recover from you all reasonable costs or expenses (including reasonable attorneys fees and legal costs) incurred in connection with the enforcement of this Agreement.
9. General Provisions
9.1 Entire Agreement. This Agreement constitutes the entire agreement between you and Hotspring with respect to your membership and use of the Platform and Platform Services, superseding any prior written or oral agreements in relation to the same subject matter herein. Any subsequent procurement and use of Hotspring Platform Services as contemplated hereunder will be subject to different, additional agreements.
9.2 Severance. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
9.3 Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
9.4 Independent Contractor. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
9.5 No Waiver. Any failure by Hotspring and our affiliates to exercise any of our rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
9.6 Assignment. Hotspring shall have the right to assign this Agreement (including all of our rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of our affiliates and to any successor in interest. Hotspring may delegate certain of Hotspring rights and responsibilities under this Agreement to independent contractors or other third parties. You may not assign, in whole or part, this Agreement to any person or entity.
9.7 Class Action Waiver and Arbitration.
THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH US.
Effective Date: April 26, 2021