This Expert & Channels Leader Agreement (“Leader Agreement”) is between you as an Expert or Channels Leader (hereinafter referred to collectively as “you” or “Leader”) and Joya Communications Inc. (“Joya”), owner and creator of the Channels by Marco Polo mobile application (the “Channels App”) and the Marco Polo application (the “Marco Polo App” and, together with the Channels App, the “Apps”), and governs your use of the Apps as a Leader, including your leading any Channels Group and/or Expert Service and your treatment of Members (as further defined in these Terms of Service) who have joined your Channels Group or Expert Service and their personal information. This Leader Agreement and any other terms, policies, or agreements incorporated herein, comprise the complete understanding between the parties regarding the Expert or Channels Membership and Services described below (“Agreement”).
As a Leader, you create a Channels Group or Expert Service within the Apps to provide a forum to Members on a particular topic and/or communicate with you. Individuals can become Members by joining your Channels Group or Expert Service and paying the membership fee set by you, the Leader.
Please read this agreement carefully, including the Limitation of Liability in Section 7 and Mandatory Individual Arbitration Provision in Section 8.9.
1. Channels and Expert Membership.
- Channels and Expert Membership and Services. Individuals may become Members by joining your Channels Group or Expert Service offered through the Apps or the Marco Polo website. Joya is making available to Leaders, the Apps and Marco Polo Website (collectively, the "Services") subject to the terms of the Agreement.
- Payment of Membership Fees and Taxes. Members will pay the fees for their membership in your Channels Group or Expert Service in accordance with the payment terms provided by Joya. Membership requires payment by credit or debit card. To join your Channel or Expert Service, Members need to provide a valid credit or debit card number, expiration date, CCV, and billing zip code. This data is directly processed by Stripe and only the last four digits of the credit card number and the billing zip code are made available to Joya and to the Leader. Once paid, Memberships are non-refundable, except as required by law, though a Member may cancel at any time. Leaders will retain 90% of the membership fees less the payment of taxes and transaction fees described below, and Joya will retain 10% of the membership fees paid by Members. Stripe will make such distributions to Joya and Leaders based on these payment terms on a weekly or monthly basis. All fees and other amounts paid to Joya shall be exclusive of all taxes, VAT, or fees, including Stripe and credit card transaction fees. Leaders shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties, fees, and charges of any kind imposed by any federal, state or local governmental entity on any and all amounts payable by Members.
- **Use of Apps.(( As a Leader, you agree to use the Services solely for their intended purpose, and as outlined in Joya’s Terms of Service (available at https://www.marcopolo.me/channels-terms/), which are expressly incorporated herein. You shall ensure that only Members who are authorized to access the Channel or Expert Service and who agree to comply with the Terms of Service are Members of your Channels Group/s or Expert Service. You agree to notify Joya immediately upon learning of any unauthorized use of the Services or any other breach of security related to the Services by contacting email@example.com.
- Responsibility for Content. As a Leader, you understand that you are responsible for any and all content and information provided on your Channels Groups or Expert Service whether provided by you, your employees, your agents or assigns. You agree to ensure their compliance with this Agreement for any information posted on the Channel or Expert Service.
- Restrictions. As a Leader, you agree that you shall not (1) lead a Channels or Marco Polo Group that is abusive toward others or promotes or supports intolerance; (2) violate the privacy rights or intellectual property rights of others, including to sell or promote counterfeit or fraudulent products; (3) otherwise engage in or incite illegal activity; (4) make false statements, including misrepresent yourself such as by stating you are someone you are not or that you have expertise in an area in which you do not; (5) use, provide, or allow pornographic material or sexual services; (6) provide medical advice; (7) provide tax advice; or (8) gamble or provide other benefits that involve raffles or prizes based on chance. As a Leader you are obligated to report to Joya any inappropriate conduct in Leader’s Group/s by contacting firstname.lastname@example.org. Joya may screen Channels Groups or Expert Services but has no obligation to do so and Joya is not responsible for any content or information that is provided in the Groups.
- Channels Leaders Compliance With Laws. As a Leader, you agree that you shall comply with all applicable laws, rules, regulations, orders, or guidelines of any Governmental Authority. In particular and without limiting the foregoing, you agree to comply with all U.S. Federal Trade Commission (“FTC”) regulations and guidelines related to branded or sponsored content and making any false, misleading, or unsupported claims, and you agree that you shall disclose any branded or sponsored content or partnerships that you use or feature on your Channel or Expert Service in compliance with FTC regulations and guidelines.
- Use of Members Content and Personal Information. Protecting the personal information of our Leaders and Members is very important to Joya. As a Leader, you may use information about Members that you collect in connection with your use of the Services only as needed for use of the Services and as expressly permitted in this Agreement. Except as expressly permitted by Joya in writing, you shall not remove or transfer any of the Members’ Content or other Personal Information, which is information that is capable of being associated with or could reasonably be linked with an individual, outside of the Apps for any purposes other than as reasonably necessary to use the Services. As a Leader, you agree that you will not sell, disclose, provide, or transfer Members’ Personal Information to third parties for any purpose whatsoever without the explicit written consent of either that Member or Joya.
- Provision of Information. As a Leader, you are responsible for providing Joya with the information necessary for Joya to provide the Services, and you are solely responsible for the accuracy, quality and legality of such information.
3. Intellectual Property.
- Joya Intellectual Property Rights and Ownership. No right, title or interest in any intellectual property right of Joya transfers to Leaders or Members, except for the limited rights stated in the Agreement.
- Leader Intellectual Property Rights and Ownership. Leader retains all intellectual property rights subsisting in any information, data or materials provided by Leader through the Apps in the Groups. As the Leader, you grant to Joya a license on a royalty-free, sublicensable, transferable, perpetual basis, to host your content and use and display your name, logo, and similar indicia (“Leader Marks”) on the Apps, the Marco Polo Website, and/or in Joya’s marketing collateral identifying the Leader and the Leader’s Group as an offering in the Apps.
4. Term and Termination.
- Term. This Leader Agreement is effective on the date that you register as a Leader and create a Channels Group or Expert Service within the Apps (“Effective Date”) and remains in effect until terminated.
- Termination. Joya may terminate this Leader Agreement at any time. Leaders may terminate this Leader Agreement with 30 days advance notice. Leaders must continue to operate their Group or Expert Service through the duration of any Membership or otherwise agree to reimburse Members for the month of Membership fees that were paid in which the Channels Group or Expert Service was terminated.
- Suspension. Joya may suspend your access to the Channels Group or Expert Service and may terminate either if you are in breach of this Agreement or any provision hereto as determined by Joya in its sole and absolute discretion.
- Effect of Termination; Survival. Except in the case of Joya’s uncured breach of the Agreement, termination of this Leader Agreement will not relieve you from the obligation that Joya receive any membership fees incurred through such termination. The provisions of this Leader Agreement that by their nature extend beyond the termination of this Leader Agreement will survive termination, including without limitation: 3; 4; 5; 6; 7; and 8.
5. No Warranties.
- Joya makes no representation or warranty about the Apps or Channels Groups, including any representation that the Services will be uninterrupted, error-free, or that the Leader will be able to post information to your Channel or Expert Service at the time and in the method of your choosing. To the fullest extent permitted under applicable law, Joya disclaims any implied or statutory warranty, including any implied warranty of title, non-infringement, merchantability or fitness for a particular purpose.
- Indemnification by Joya. Joya will defend and indemnify Leader from and against all third party claims arising from or relating to (a) the Services’ infringement of a third party’s intellectual property right; or (b) Joya’s material breach of the Agreement.
- Indemnification by Leader. You will defend and indemnify Joya, its respective directors, officers, affiliates, and employees from and against all third party claims (a) arising from or relating to (i) the infringement of a third party’s intellectual property right by any content, data or other information uploaded or otherwise used in the Leader’s Group; (ii) your material breach of the Agreement; (iii) your failure to comply with any laws, rules, regulations, orders, or guidelines; (iv) your improper disclosure or failure to disclose branded or sponsored content or partnerships; (v) your making any false, misleading, or unsupported claims; or (vi) bodily injury, death of any person, or damage to real or tangible personal property resulting from Leader’s acts or omissions; or (b) brought by a Member as a result of Leader’s actions or inactions, including but not limited to your, or your employees and agents, negligence or willful misconduct.
- Both party’s indemnification obligations are subject to the following: (i) the party seeking indemnity must promptly notify the indemnifying party in writing, of the third party claim; (ii) the party seeking indemnity shall provide the indemnifying party with reasonable cooperation and assistance for the defense of the third party claim; and (iii) upon the indemnifying party’s request, the party seeking indemnity shall allow the indemnifying party to control the defense and/or settlement of the third party claim, provided that the party seeking indemnity will have the right, at its own expense, to employ separate counsel and participate in the defense.
7. Limitation of Liability.
- TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER IN CONNECTION WITH THE AGREEMENT FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, LOSS OF DATA, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES.
- EXCEPT AS LIMITED IN SECTION 7.3, BELOW, NEITHER PARTY WILL BE LIABLE TO THE OTHER IN CONNECTION WITH THE AGREEMENT FOR AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE TO JOYA DURING THE 12-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE LIABILITY.
- THE LIMITATIONS OF LIABILITY STATED IN SECTIONS 7.1 AND 7.2 DO NOT APPLY TO A PARTY’S (A) INDEMNIFICATION OBLIGATIONS; (B) LIABILITY FOR FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT AND/OR FOR NEGLIGENT ACTS OR OMISSIONS WITH RESPECT TO THE OTHER PARTY’S PERSONAL INFORMATION OR PERSONAL INFORMATION IN THE OTHER PARTY’S CONTROL; OR (C) VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
- To the extent there is any conflict between the Leader Agreement and Joya’s Terms of Service, the Leader Agreement will prevail.
- Notices. Any and all notice pertaining hereto will be in writing and will be served by delivering said notice personally or by sending it by email to the email address of the other party. Notices may be sent to Joya at email@example.com.
- Waiver and Severability. If any provision of this Leader Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Leader Agreement or the Agreement, which shall remain in full force and effect. No waiver of any term of this Leader Agreement shall be deemed a further or continuing waiver of such term or any other term, and Joya’s failure to assert any right or provision under this Leader Agreement shall not constitute a waiver of such right or provision.
- Amendments. No amendment to, or modification or termination of, this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
- Assignment. As the Leader, you shall not assign, transfer, delegate or subcontract any of your rights or delegate any of its obligations under this Agreement without the prior written consent of Joya. Any purported assignment or delegation in violation of this restriction shall be null and void. No assignment or delegation shall relieve you of any of your obligations under this Agreement. Joya may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Joya’s assets without your consent.
- Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third person or party to be able to rely upon nor enforce this Agreement or any part thereof.
- Dispute Resolution. LEADER AND JOYA AGREE THAT ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR JOYA COMMUNICATIONS INC.'S SERVICES SHALL BE RESOLVED ON AN INDIVIDUAL BASIS ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, EXCEPT THAT EACH PARTY RETAINS THE RIGHT TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT AND THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF A PARTY'S COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE LEADER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER LEADER OR USER. THE ARBITRATION SHALL BE ADMINISTERED BY JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. ("JAMS"), PURSUANT TO JAMS STREAMLINED ARBITRATION RULES AND PROCEDURES (JAMS STREAMLINED RULES"). CALIFORNIA LAW WILL APPLY TO ANY DISPUTE RELATING TO OR ARISING OUT OF THIS LEADER AGREEMENT. You can opt out of this Section 8.9 arbitration agreement by emailing to firstname.lastname@example.org a written opt-out notice within thirty (30) days of your acceptance of the Agreement by including your name, the e-mail and cell phone number you used for your account, and a clear statement that you want to opt out of this arbitration agreement.
- Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Party, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Updated: June 4, 2020