Last updated: January 14, 2014
1. Service Connects Boat Owners and Divers
The Service is a communications platform for enabling the connection between individuals and/or businesses seeking to obtain diving services (“Boat Owners”) and individuals and/or businesses seeking to provide diving services (“Divers”). Boat Owners and Divers together are hereinafter referred to as “Users.” Those certain services requested by the Boat Owners, which are to be completed by the Divers are hereinafter referred to as “Jobs”.
2. Clickdiver Only Provides a Venue
The Service is a communications platform for enabling connections between Users. Clickdiver does not take part in the interaction between Users. Clickdiver does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of any ratings, certifications, or qualifications provided by Users, Jobs requested by Boat Owners, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any Users. Clickdiver makes no representations about the suitability, reliability, timeliness, or accuracy of the Jobs requested and provided by Users identified through the Service whether in public, private, or offline interactions. Clickdiver cannot confirm that each User is who they claim to be. Clickdiver does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Service.
NEITHER CLICKDIVER NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICE. CLICKDIVER AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE.
Users of the Service contract for Jobs directly with other Users. Clickdiver will not be a party to any contracts for Jobs or services. Clickdiver facilitates these contracts by supplying a medium for the exchange of money. Payment will be processed at the end of a completed Job transaction. Boat Owners offer payments for each requested Job (such payment, a “Job Payment”). When a Job is marked as closed by the Diver, the agreed upon Job Payment will be transferred to the Divers online account less any payments owed to Clickdiver by the Users.
4. Billing and Payment Policy
For all payments associated with a Job, Clickdiver will charge your credit card according to the amount agreed upon between you and Clickdiver for the use of the Service, and you hereby authorize us to charge your credit card for such amounts. Clickdiver retains the right, in its sole discretion, to place a hold on any payment for a completed Job transaction. Divers agree that Clickdiver will retain a commission percentage (“Commission”) of the final amount invoiced. The Commission applies to the final invoiced amount excluding any tax charged to the boat owner. Diver agrees to a Commission of 12% (twelve percent) unless a different Commission is agreed to in writing with Clickdiver. Clickdiver has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by Clickdiver, in each case in Clickdiver’s sole discretion. Users will be liable for all transaction taxes on the services provided under this Agreement.
The Service is only a venue for connecting Users. Because Clickdiver is not involved in the actual contact between Users or in the completion of the Job, in the event that you have a dispute with one or more Users, you release Clickdiver (and its officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
6. Links to Other Web Sites
Links (such as hyperlinks) from the Service to other sites on the Web do not constitute the endorsement by Clickdiver of those sites or their content. Such links are provided as an information service, for reference and convenience only. Clickdiver does not control any such sites, and is not responsible for their content. The existence of links on the Service to such websites (including without limitation external websites that are framed by the Clickdiver Service as well as any advertisements displayed in connection therewith) does not mean that Clickdiver endorses any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.
7. No Solicitation
The Service may not be used to solicit for any other business, website or service. You may not solicit, advertise for, or contact in any form Users for employment or any other purpose not related to the Service facilitated through Clickdiver.
You may not use the Service to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of Clickdiver.
8. Your Information and Likeness
“Your Information” is defined as any information and materials you provide to Clickdiver or other Users in connection with your registration for and use of the Service.You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User, is collectively referred to herein as “User Generated Content.” You hereby represent and warrant to Clickdiver that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain child pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for Clickdiver or cause Clickdiver to lose (in whole or in part) its internet service providers or other partners or suppliers.
The Service hosts User Generated Content relating to reviews of specific Divers. Such reviews are opinions and not the opinion of Clickdiver, have not been verified by Clickdiver and each Boat Owner should undertake their own research to be satisfied that a specific Diver is the right person for a Job. You agree that Clickdiver is not liable for any User Generated Content.
You hereby grant Clickdiver a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information and User Generated Content, in any media now known or not currently known in order to perform and improve upon the Service.
Each Diver who provides to Clickdiver any videotape, film, record, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the Service, hereby irrevocably grants to the Clickdiver the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
Use any videotape, film, record or photograph that such Diver provides to Clickdiver, and use, reproduce, modify, or creative derivatives of such Diver’s picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”), in and in connection with the exhibition, distribution, display, performance, transmission, broadcasting on any and all media, including, without limitation, the internet, of any videos or images of such Diver in connection with the Service. Reproduce in all media any recordations of such Diver’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Service. Use, and permit to be used, such Diver’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Service in any media. Use, and permit to be used, such Diver’s name and identity in connection with the Service. Each Diver hereby waives all rights and releases Clickdiver from, and shall neither sue nor bring any proceeding against any Clickdiver for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Diver’s identity, Physical Likeness or Voice in connection with the Service.
Each Diver acknowledges that Clickdiver shall not owe any financial or other remuneration for using the recordings provided hereunder by such Diver, either for initial or subsequent transmission or playback, and further acknowledges that Clickdiver is not responsible for any expense or liability incurred as a result of such Diver’s recordings or participation in any recordings, including any loss of such recording data.
9. Worker Classification and Withholdings
You assume all liability for proper classification of workers as independent contractors or employees based on applicable legal guidelines.
You do not have authority to enter into written or oral --whether implied or express--contracts on behalf of Clickdiver. You acknowledge that Clickdiver does not, in any way, supervise, direct, or control a Diver’s work or Jobs performed in any manner. Clickdiver does not set a Diver’s work hours or location of work. Clickdiver will not provide a Diver with training or any equipment, labor or materials needed for a particular Job.
The Service is not an employment service and Clickdiver does not serve as an employer of any User. As such, Clickdiver will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your use of Users’ services.
You agree to indemnify, hold harmless and defend Clickdiver from any and all claims that a Diver was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Diver was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that Clickdiver was an employer or joint employer of a Diver, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.
10. Termination and Suspension
Clickdiver may terminate or suspend your right to use the Service at anytime for any or no reason by providing you with written or email notice of such termination, and termination will be effective immediately upon delivery of such notice.
Without limitation, Clickdiver may terminate or suspend your right to use the Service if you breach any term of this Agreement or any policy of Clickdiver posted through the Service from time to time, or if Clickdiver otherwise finds that you have engaged in inappropriate and/or offensive behavior.
11. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Service is owned by Clickdiver, excluding User Generated Content that Clickdiver has the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Clickdiver owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Service without Clickdiver’s express prior written consent and, if applicable, the holder of the rights of the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Clickdiver and, if applicable, the holder of the rights to the User Generated Content.
The service marks and trademarks of Clickdiver, including without limitation Clickdiver and the Clickdiver logos are owned by Clickdiver. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
12. Disclaimer of Warranties
USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CLICKDIVER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICE OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. CLICKDIVER DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND CLICKDIVER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND OTHER USERS OF SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
WITHOUT LIMITING THE FOREGOING, NEITHER CLICKDIVER NOR ITS AFFILIATES, EMPLOYEES OR LICENSORS WARRANT THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY JOB OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SERVICE.
NEITHER CLICKDIVER NOR ITS AFFILIATES, EMPLOYEES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.
NEITHER CLICKDIVER NOR ITS AFFILIATES, EMPLOYEES OR LICENSORS WARRANT THAT THE SERVICE IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. CLICKDIVER AND ITS AFFILIATES, EMPLOYEES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS. IN ADDITION, NOTWITHSTANDING ANY FEATURE A BOAT OWNER MAY USE TO EXPEDITE DIVER SELECTION, EACH BOAT OWNER IS RESPONSIBLE FOR SELECTING THEIR DIVER AND CLICKDIVER DOES NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A BOAT OWNER AND DOES NOT RECOMMEND ANY PARTICULAR DIVER. CLICKDIVER DOES NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY DIVER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.
13. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT CLICKDIVER IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD CLICKDIVER, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE SERVICE, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF CLICKDIVER, MISCONDUCT OR ACT OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY CLICKDIVER OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL CLICKDIVER, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. CLICKDIVER DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE SERVICE.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT CLICKDIVER OR ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED USD $100 (One Hundred U.S. Dollars)
You hereby agree to indemnify, defend, and hold harmless Clickdiver, its directors, officers, employees, agents, licensors, attorneys, independent contractors, providers, subsidiaries, and affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with (i) your use or inability to use the Service, (ii) any claim from a third party arising out from your transaction or your Job, (iii) any claim for infringement, misappropriation or other violation of any patents, copyrights, trademarks, trade secrets, or other intellectual property rights of your Information or User Generated Content, and (iv) your breach of this Agreement . Clickdiver reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Clickdiver.
15. Dispute Resolution
Any claim or controversy between you and Clickdiver arising out of, or relating to, this Agreement shall be finally decided by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association by a single arbitrator appointed in accordance with such rules. Subject to any valid requirements of any applicable statute, any such arbitration shall be held in San Francisco, California. During the course of any arbitration hereunder, each party will bear its own costs and attorneys’ fees, and share equally the arbitrator’s fees and expenses, except that the arbitrator shall award to the prevailing party all reasonable attorneys’ fees resulting directly or indirectly from such arbitration. The award rendered by the arbitrator shall be final, and judgment may be entered upon it at any court having jurisdiction. The arbitrator shall have the authority to award temporary, preliminary and permanent injunctive and equitable relief in the arbitration. Any arbitration hereunder will be confidential.
16. Governing Law
This Agreement shall be governed by, and construed in accordance with the laws of the State of California, without regard to conflict of law principles.
17. Special Promotions
Clickdiver may from time to time provide certain promotional opportunities, sweepstakes and contests to Users. All such promotions will be run at the sole discretion of Clickdiver, and can be activated, modified or removed at anytime by Clickdiver without advance notification.
18. No Agency
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
19. General Provisions
Failure by Clickdiver to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Clickdiver with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement will inure to the benefit of Clickdiver, its successors and assigns.
20. Changes to this Agreement and the Service