- Please read these Terms before using the Site or the Services. By using the Site or the Services, you hereby represent, warrant, understand, agree to and accept these Terms in their entirety whether or not you register as a user of the Site or Services ("Registered Users").
- This Agreement contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Section 12 "Agreement to Arbitrate") by the later of September 30, 2013 or 30 days after the date you accept these Terms for the first time. Unless you opt out: (1) you will only be permitted to pursue claims against Prokanga.com on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
for updates. Any use of the Site or the Services by you after the effective date of any changes will constitute your acceptance of such changes.
For purposes of these Terms, the "Site" shall mean www.prokanga.com and any other Prokanga.com branded websites, web pages, mobile applications and mobile websites operated by Isemay I, LLC ("Prokanga.com" or "we") in the United States, and the "Services" shall mean any of the various services that Prokanga.com provides through the Site or any other channels, including over the telephone. In addition, these Terms do not apply to third party entities that may use the Prokanga.com Site or Services. Such entities' use of the Prokanga.com Site and Services are subject to separate terms that they agreed when they registered with Prokanga.com.
- Description of Services; Limitations; User Responsibilities
- 1.1 About Our Services
Prokanga.com offers various Services to help its users find, coordinate, and provide expert advice. The Services we offer include, among others:
- We enable individuals seeking expert advice ("Clients") in the areas of accounting and bookkeeping, architecture, event planning, interior design, law, and public relations to identify qualified professionals "Professionals".
- We provide search functionality on the Site to allow Clients to narrow the pool of Professionals that they are interested in contacting based on their needs and preferences, and we provide a communications platform that allows Clients and Professionals to communicate without sharing contact information.
Our Services continue to grow and change. Please refer to our Site for further information about the Services we provide.
1.2. Limitations of our Services
We offer a variety of Services to help our users find, coordinate, and provide expert advice. However, we do not employ any Professionals. Except as set forth below, Clients are the potential employers of Professionals and are responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish (such as applicable payroll, tax and minimum wage laws). Further, we do not have control over the quality, timing, or legality of the services actually delivered by Professionals, nor of the integrity, responsibility or actions of Clients or Professionals. We do not refer or recommend either Clients or Professionals nor do we make any representations about the suitability, reliability, timeliness, and accuracy of the services provided by Professionals or the integrity, responsibility or actions of Clients or Professionals whether in public, private or offline interactions.
We do not assume responsibility for the conduct of, or quality of the services provided by the individual Professionals. Any issues concerning the foregoing must be resolved directly with the agency and/or the individual Professional. Professional content is primarily user generated, and we do not control or vet user generated content for accuracy as a general matter. Prokanga.com does not assume any responsibility for the accuracy or reliability of any information provided by Professionals on or off this Site. Prokanga.com is not responsible for the conduct, whether online or offline, of any Client, Professional or other user of the Site or Services. Moreover, Prokanga.com does not assume and expressly disclaims any liability that may result from the use of information provided on our Site. All users, including both Clients and Professionals, hereby expressly agree not to hold Prokanga.com (or Prokanga.com's officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors, recruiters, corporate partners or resellers, hereinafter "Affiliates") liable for the actions or inactions of any Client, Professional or other third party or for any information, instruction, advice or services which originated through the Site, and, to the maximum extent permissible under applicable law, Prokanga.com and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
1.3. User Responsibilities
Any screening of a Client or Professional and his, her or its information by Prokanga.com is limited and should not be taken as complete, accurate, up-to-date or conclusive of the individual's or entity's suitability as an employer or professional. Registered Users are solely responsible for interviewing, performing reference checks on, verifying information provided by, and selecting an appropriate Professional for their needs. Each Client is also responsible for complying with all applicable employment and other laws in connection with any employment relationship they establish, including verifying the age of the Professional they select as well as that Professional's eligibility to work in the US.
- 1.1 About Our Services
- Eligibility to Use the Site and Services; Representations and Warranties
To be eligible to use our Services, you must meet the following criteria:
- Our Services are available only to individuals who are eighteen (18) years of age or older. If you do not meet the above age requirements, do not register to use the Site or Services.
- The Site and the Services are currently available only to individuals who are legally in the jurisdiction of the United States or the territory of Puerto Rico, and currently residing or working within the New York metropolitan area as defined by the United States Census Bureau.
- If you are registering to be a Professional, you must be permitted to legally work within the United States.
- You must not be a competitor of Prokanga.com or using our Services for reasons that are in competition with Prokanga.com.
2.2. Representations and Warranties
By requesting to use, registering to use and/or using the Site or the Services, you represent and warrant that you have the right, authority and capacity to enter into these Terms and you commit to abide by all of the terms and conditions hereof. In addition, you represent and warrant that you (i) are over eighteen (18) years of age, and (ii) currently reside or work within the New York metropolitan area as defined by the United States Census Bureau.
- 2.1. Eligibility
Rules for User Conduct and Use of Services
3.1. Registration, Posting, and Content Restrictions
The following rules pertain to "Content", defined as any communications and all the material, data, and information that you upload or transmit through Prokanga.com's Services, or that other users upload or transmit, including without limitation any content, messages or profiles that you publish or display (hereinafter, "post"). By transmitting and submitting any Content while using our Service, you agree, represent and warrant as follows:
- You are responsible for providing accurate, current and complete information in connection with your registration for use of the Site and the Services.
- You will register your account in your own legal name.
- All Content you post will be in English as the Site and Services are not currently supported in any other languages.
- You are solely responsible for any Content that you post on the Site, or transmit to other users of the Site. You will not post on the Site, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, defamatory, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity), or advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse, or give the impression that any Content emanates from Prokanga.com where this is not the case. You will not provide inaccurate, misleading, defamatory or false information to Prokanga.com or to any other user of the Site, and all opinions stated as part of Content must be genuinely held. Without limiting the foregoing, you represent and warrant to us that you have the right and authority to post all information you post about yourself or others.
- You understand and agree that Prokanga.com may, in its sole discretion, review and delete any Content, in each case in whole or in part, that in the sole judgment of Prokanga.com violates these Terms or which Prokanga.com determines in its sole discretion might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users of the Site or others.
- You have the right, and hereby grant, to Prokanga.com, its Affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute your Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your Content by Prokanga.com will not infringe or violate the rights of any third party.
- Your use of the Service, including but not limited to the Content you post on the Service, must be in accordance with any and all applicable laws and regulations.
- Prokanga.com is not responsible for any claims relating to any inaccurate, untimely or incomplete information provided by users of the Site.
- Opinions, advice, statements, offers, or other information or content made available on the Site or through the Service, but not directly by Prokanga.com, are those of their respective authors. Such authors are solely responsible for such content. Prokanga.com does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Site or available through the Service, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site or through the Service. Under no circumstances will Prokanga.com or its Affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted on the Site or transmitted to or by any user of the Site or Service. To the maximum extent permitted by law, prokanga.com disclaims any liability whatsoever for any misstatements and/or misrepresentations made by any users of the site. Users do hereby represent, understand and agree to hold prokanga.com harmless for any misstatements and/or misrepresentations made by or on behalf of them on this site or in any other venue.
3.2. Exclusive Use
If you are a Client, you may use your account only to find employment or expert advice for yourself. You are responsible for all activity on and use of your account, and you may not assign or otherwise transfer your account to any other person or entity.
3.3. Prohibited Uses
By using the Site or Services of Prokanga.com, you agree that you will not under any circumstances:
- use the Site, Services, or any information contained therein in any way that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
- use the Site or Services for any unlawful purpose, for any purpose not expressly intended by Prokanga.com or for the promotion of illegal activities;
- attempt to, or harass, abuse or harm another person or group;
- use another user's Prokanga.com account;
- provide false or inaccurate information when registering an account on Prokanga.com, using the Services or communicating with other Registered Users;
- attempt to re-register with Prokanga.com if we have terminated your account for any or no reason;
- interfere or attempt to interfere with the proper functioning of Prokanga.com's Services;
- make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
- bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology, or device to scrape, spider, or crawl the Service or harvest or manipulate data;
- use the communication systems provided by or contacts made on Prokanga.com for any commercial solicitation purposes;
- publish or link to malicious content intended to damage or disrupt another user's browser or computer.
- In order to protect our users from prohibited activity, we reserve the right to take appropriate actions, including but not limited to restricting the number of messages a user may send in any 24-hour period to a number which we deem appropriate in our sole discretion.
Should Prokanga.com find that you violated the terms of this Section or any terms stated herein, Prokanga.com reserves the right, at its sole discretion, to immediately terminate your use of the Site and Services. By using the Site and/or Services, you agree that Prokanga.com may assess, and you will be obligated to pay, a $8,000 daily penalty for scraping, either in a manual or automatic manner, Professional information, including but not limited to, names, copying copyrighted text, or otherwise mis-using or mis-appropriating Site content, including but not limited to, use on a "mirrored", competitive, or third party site. This fee shall be in addition to any other rights Prokanga.com may have under these Terms or applicable law. Further, in order to protect the integrity of the Site and the Services, Prokanga.com reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Site.
- 3.1. Registration, Posting, and Content Restrictions
Termination of Registration
Should Prokanga.com determine that you are not eligible to use the Services, have violated any terms stated herein, are not suitable for participation as a Registered User, or have mis-used or mis-appropriated Site content, including but not limited to use on a "mirrored", competitive, or third party site, Prokanga.com reserves the right, at its sole discretion, to immediately terminate your access to all or part of the Prokanga.com Site, to remove your profile and/or any content posted by or about you from the Site, and/or to terminate your registration in Prokanga.com, with or without notice.
In any event, Prokanga.com also reserves the right, in its sole discretion, to terminate your access to all or part of the Prokanga.com Site, to remove your profile and/or any content posted by or about you from the Site, and/or to terminate your registration in Prokanga.com, for any reason or no reason, with or without notice. If we terminate your registration, we have no obligation to notify you of the reason, if any, for your termination.
Following any termination of any individual's use of the Site or the Services, Prokanga.com reserves the right to send a notice thereof to other Registered Users with whom we believe the individual has corresponded.
Our decision to terminate an individual's registration and/or to notify other Registered Users with whom we believe the individual has corresponded does not constitute, and should not be interpreted or used as information bearing on, the individual's character, general reputation, personal characteristics, or mode of living.
Links To External Sites
Links from the Site to external sites (including external sites that are framed by Prokanga.com) do not constitute an endorsement by Prokanga.com of such sites or the content and other materials presented on such sites, but are for users' reference and convenience. Users access them at their own risk. It is the responsibility of the user to evaluate the content and usefulness of the information obtained from other sites. Prokanga.com does not control such sites, and is not responsible for their content. Just because Prokanga.com has hyperlinks to such sites does not mean that Prokanga.com endorses any of the material on such sites, or has any association with their operators.
Payment And Refund Policy
In order to utilize some Prokanga.com Services, the user of such Services must pay Prokanga.com a recurring monthly membership fee, as well as an initial one-time fee. In addition, the user is responsible for any state or local sales taxes associated with the Services purchased.
- 7.1 Billing and Payment
If you sign up for a Prokanga.com paid membership, you agree to pay Prokanga.com all membership charges associated with the plan you subscribe to as described on the Site at the time you subscribe and provide your payment information. You also authorize Prokanga.com to charge your chosen payment provider according to the terms of the plan to which you subscribe. The membership period and the amount and frequency of the charges will vary depending on the membership plan you select. Prokanga.com reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
To the extent you elect to purchase other Services we may offer for a fee, you authorize Prokanga.com to charge your chosen payment provider for the Services you purchase. You agree that if Prokanga.com already has your credit card on file as a result of prior purchases you have made, we may charge that credit card for the additional Services you purchase.
7.2 Automatic Membership Renewal and Cancellation
Prokanga.com paid memberships will continue indefinitely until cancelled by the user. After your initial membership commitment period, and again after any subsequent membership period, your membership will automatically renew for an additional equivalent period as the membership term you originally selected and at the membership rate and frequency disclosed to you on the Site when you originally joined, unless otherwise provided at the time you joined. If you sign up for a payment plan that allows you to be charged monthly over the membership period and you decide to cancel your membership during the membership period, you acknowledge and agree that you will continue to be billed for the membership on a monthly basis until its originally scheduled expiration date.
You may cancel your paid membership by adjusting your settings.
If you cancel your membership, you will not be permitted to use your membership after such cancellation, effective immediately. Prokanga.com expressly reserves the right to immediately deactivate your membership after you initiate a cancellation. You will not incur any fees associated with such cancellation, and Prokanga.com will provide no refunds related to any cancellations.
7.3 Refund Policy
All payments for services are non-refundable and there are no refunds or credits for unused or partially used services or service cancellations.
7.4 Free Trial or Discounted Offers
Prokanga.com may offer lifetime or limited-time free or discounted trial memberships to certain users from time-to-time. If a user signs up for a free or discounted trial membership, after the expiration of the free trial or discounted period, the user will be charged the price then in effect for a membership to the Service, unless otherwise provided to him or her when he or she originally joined. If a user does not want to continue with the Service after the expiration of the free or discounted trial period, the Client or Professional must cancel their membership prior to the conclusion of the free trial or discounted period.
- 7.1 Billing and Payment
Release of Liability for Conduct and Disputes
We are not an employer of Professionals. Clients may seek the services of a Professional through the use of the Site or Services. We may provide Clients a customized list of potential individuals to consider based on the information the Client provides us regarding their needs and preferences. However, if a Client agrees on the provision of services from an individual we help identify, such agreement is solely between the Client and the Professional; Prokanga.com is not a party to any such agreement. Any issues concerning the conduct of a Client or Professional including, without limitation, the services received by the Client or payment due to the Professional, must be resolved directly by the Client and the Professional. Prokanga.com will not be held responsible and expressly disclaims any liability whatsoever for any claims, demands or damages direct or indirect of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such issues. By using this Site or our Services, you do hereby represent, understand, and expressly agree to hold Prokanga.com harmless for any claim or controversy that may arise from any disputes between you and any Client, Professional or other user(s) of the Site. You agree to take reasonable precautions in all interactions with Clients, Professionals or other users of the Site or the Services, particularly if you decide to meet offline. By using the Site or the Services, you do hereby agree to report any alleged improprieties of any users therein to Prokanga.com immediately by notifying Prokanga.com of the same via electronic correspondence.
Prokanga.com is intended for people 18 or over. Clients and Professionals should monitor children's use of the Internet and deny access to the Site to anyone under the age of 18. Prokanga.com will not knowingly collect any information from individuals under 18. Should we determine that you do not meet the age requirements for using our Site or Services, your registration will be terminated immediately.
Disclaimers; Limitations; Waivers; Indemnification
10.1. No Warranty
The information and materials contained on the Site, including text, graphics, information, links or other items are provided "as is", "as available". Further, opinions, advice, statements, offers, or other information or content made available through the Services, but not directly by Prokanga.com, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROKANGA.COM DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THIS INFORMATION AND MATERIALS; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN PROKANGA.COM; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (4) GIVE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROKANGA.COM EXPRESSLY EXCLUDES ALL CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR THE LAW OF EQUITY AND DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THIS INFORMATION AND MATERIALS.
IN ADDITION AND WITHOUT LIMITING THE FOREGOING, PROKANGA.COM MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED REGARDING THE SUITABILITY OF ANY USER OF OUR SITE TO PROVIDE SERVICES AS A SERVICE PROVIDER OR TO EMPLOY THE SERVICES OF A SERVICE PROVIDER.
10.2. Assumption of Risk
You assume all risk when using the Site and the Services, including but not limited to all of the risks associated with any online or offline interactions with users of the Site or the Services. You agree to take all necessary precautions, when interacting with other site visitors or Registered Users. Furthermore, those Professionals who are licensed professionals are encouraged to procure any applicable liability insurance for their Services, in any applicable jurisdictions.
10.3. Limitation of Liability
Incidental Damages and Aggregate Liability. In no event will Prokanga.com be liable for any indirect, special, incidental, or consequential damages, losses or expenses arising out of or relating to the use or inability to use the Site or Services, including without limitation damages related to any information received from the Site or Services, removal of content from the Site, including profile information, any email distributed to any user or any linked web site or use thereof or inability to use by any party, or in connection with any termination of your membership or ability to access the Site or Services, failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Prokanga.com, or representatives thereof, are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL PROKANGA.COM'S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES OR THE SITE, EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT, OR, IF YOU HAVE NOT PAID PROKANGA.COM FOR THE USE OF ANY SERVICES, THE AMOUNT OF $25.00 OR ITS EQUIVALENT.
No Liability for non-Prokanga.com Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROKANGA.COM BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM ANYONE'S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE, OR TRANSMITTED TO OR BY ANY USERS OR ANY OTHER INTERACTIONS WITH OTHER REGISTERED USERS OF THE SITE OR SERVICES, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU. Prokanga.com makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Site.
- 10.1. No Warranty
It is Prokanga.com's policy to respond to notices of alleged copyright infringement with the Digital Millennium Copyright Act ("DMCA"). If you believe any materials accessible on or from our Site infringe your copyright, you may request removal of those materials (or access thereto) from the Site by contacting Prokanga.com's copyright agent (identified below) and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
Prokanga.com's agent for copyright issues relating to this Site is as follows: firstname.lastname@example.org. In an effort to protect the rights of copyright owners, Prokanga.com will terminate, in appropriate circumstances, Members and other users of this Site who are repeat infringers.
Agreement to Arbitrate
12.1 Agreement to Arbitrate
This Section 12 is referred to in these Terms as the "Arbitration Agreement". Unless you opt-out in accordance with the opt-out procedures set forth below, you agree that any and all disputes or claims that have arisen or may arise between you and Prokanga.com or a Prokanga.com Affiliate, whether relating to these Terms (including any alleged breach thereof), the Services, the Site, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court in accordance with the terms of this Arbitration Agreement, except you may assert individual claims in small claims court, if your claims qualify. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
12.2 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND PROKANGA.COM AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PROKANGA.COM AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER PROKANGA.COM USERS.
12.3 Pre- Arbitration Dispute Resolution
Prokanga.com is always interested in resolving disputes amicably and efficiently. So before you commence arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us via email at email@example.com.
12.4 Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org
Information about the AAA's Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, http://www.adr.org/consumer_arbitration
If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 10. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
To commence an arbitration against Prokanga.com, you must complete a short form, submit it to the AAA, and send a copy to Prokanga.com at Prokanga.com, Inc., at firstname.lastname@example.org. For more information, see the AAA's claim filing page, http://www.adr.org/fileacase
You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less you or Prokanga.com may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Prokanga.com subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Prokanga.com, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Prokanga.com users, but is bound by rulings in prior arbitrations involving the same Prokanga.com user to the extent required by applicable law.
12.5 Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules, unless otherwise provided in this Agreement to Arbitrate. If you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Prokanga.com will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Prokanga.com will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Prokanga.com for all fees associated with the arbitration paid by Prokanga.com on your behalf that you otherwise would be obligated to pay under the AAA's rules.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court decides that any term or provision of this Arbitration Agreement other than Section 12.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 12.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms will continue to apply.
12.8 Opt-Out Procedure
You can choose to reject this Arbitration Agreement by e-mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this Section. You must e-mail the Opt-Out Notice to "Prokanga.com, as sole member of Isemay I, LLC" at email@example.com. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to log in to the Prokanga.com account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, all other terms of these Terms will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
12.9 Future Changes to this Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Prokanga.com prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and shall not be effective as to any claim that was filed in a legal proceeding against Prokanga.com prior to the effective date of removal.
- 12.1 Agreement to Arbitrate
Governing Law and Jurisdiction
These Terms, and any dispute between you and Prokanga.com, shall be governed by the laws of the State of New York without regard to principles of conflicts of law, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of Section 12, the Arbitration Agreement. Unless you and we agree otherwise, in the event that the Arbitration Agreement in Section 12 is found not to apply to you or to a particular claim or dispute (except for small-claims court actions), either as a result of your decision to opt-out of the Arbitration Agreement or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Prokanga.com must be resolved exclusively by a state or federal court located in the State of New York. You and Prokanga.com agree to submit to the personal jurisdiction of the courts located within the [State of New York] for the purpose of litigating all such claims or disputes.
Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. The invalidity, illegality or unenforceability of any term or provision of these Terms shall in no way effect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms shall be enforceable as so modified. Any Affiliate (as defined in Section 1.2) is expressly made a third party beneficiary of this Agreement and may enforce this Agreement directly against you. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.
If you have any questions or need further information as to the Site or Services provided by Prokanga.com, or need to notify Prokanga.com as to any matters relating to the Site or Services please contact Prokanga.com at: firstname.lastname@example.org.