(Effective Date: August 1, 2019)
This PRO REFERRAL PRO TERMS OF SERVICE ("Agreement") governs the relationship between Red Beacon, Inc., a Delaware corporation doing business as ProReferral ("Pro Referral", "we", or "us") and service providers who use the ProReferral.com internet platform owned and operated by Pro Referral (the "Website") (individually, "Pro," "User," or "You," and collectively, "Pros"). References to Websites will include, but are not limited to, any and all uses of ProReferral.com via mobile applications, mobile devices, personal computers, email, telephones or other electronic devices. Pro Referral and Pro are collectively referred to as "Parties" and individually as "Party."
Pros agree to accept the terms and conditions of this Agreement upon submission of a registration application on the Website. Pro further acknowledges and agrees that Pro Referral may amend this Agreement at any time by posting a revised version of this Agreement on the Website or by notifying Pro directly in Pro Referral's sole discretion. Your continued use of the Website after any changes are made to this Agreement will constitute your consent to such changes. Pro Referral does not and will not assume any obligation to notify Pros of any changes to this Agreement, or the creation or modification of any additional terms. You are responsible for remaining knowledgeable about the most current version of the Terms of this Agreement.
1. Pro Referral's Service
1.1 Overview. Pro Referral is an online referral service company that allows consumers ("Consumers") to select Pros ("Pro Referral's Services"). Through the Website, a Consumer submits an online request for Pros to contact the Consumer concerning desired services or work ("Pro Request"). The Pro Request contains certain required information about the Consumer's specific project ("Project") (e.g., what services the Consumer wants, the type of services/work, and the Consumer's zip code). Upon receipt of a Pro Request, Pro Referral selects Pros, from its database, and provides information concerning the Pros' Skills Profiles (defined below) to the Consumer. The Consumer may select one or more Pros to receive the Consumer's telephone number. Consumer may also use Pro Referral's Pro directory to select a Pro to contact Consumer. The selected Pro contact the Consumer to discuss the Consumer's service needs. When a Pro contacts a Consumer, the Pro is acting on the Pro's sole behalf and is not an employee, representative or agent of Pro Referral, Home Depot U.S.A., Inc. ("The Home Depot"), or their affiliates.
1.2 No Implied or Further Agreement. Pro Referral makes no assurance that Pro will receive a minimum or particular number of referrals or Pro Requests or receive a minimum or particular dollar amount of business under this Agreement. Nothing in this Agreement obligates Pro Referral to refer the Pro to any Consumer for any particular Project or Pro Request. In view of the foregoing, the Parties represent and warrant to one another that any investments or expenditures a Party has made or may make, in connection with this Agreement, are at such Party's sole and knowing risk.
1.3 Ratings. Pro Referral provides a rating for each Pro. Consumers may see the ratings for Pros referred by Pro Referral. Pro ratings are typically derived from the following sources: (1) Consumer ratings â€“ Consumers can rate and provide reviews of Pros that they select; (2) Pro provided ratings â€“ Pros can provide ratings from a legitimate external site for use on Pro Referral's Website; and (3) Pro Referral located ratings â€“ Pro Referral can find and use ratings concerning a Pro that are listed on a legitimate external site. Pro Referral will not make any independent assessment(s) of a Pro's quality of work. In its absolute discretion, Pro Referral may from time to time remove ratings or reviews that are not applicable. If Pro disagrees with a rating or review, it may appeal to Pro Referral either through email or written notice; however, Pro Referral has sole discretion on ratings and reviews posted on the Website, and Pro expressly releases and waives any and all claims against Pro Referral and Consumers related to such ratings and reviews.
1.4 Background Checks. Either a principal or owner of Pro must pass Pro Referral's background screening process before it can become a registered Pro and use Pro Referral's Services. This screening will be conducted by a third-party agency or agencies approved or designated by Pro Referral. Pro Referral is not responsible for and disclaims all liability associated with the screening conducted by such third-party agencies. Pro will be notified of the results but will not receive access to the reports, except to the extent Pro Referral is required under applicable law to allow such access or review. Additional background screenings may be required from time-to-time by Pro Referral as a condition of continued use of Pro Referral's Services. Until the requirements of this Section are fully satisfied, under no circumstances will Pro or its personnel use Pro Referral's Services or have contact with Pro Referral Consumers.
1.5 Agreement with Consumer. Upon the Consumer's agreement with Pro to use a Pro's services after submitting a Pro Request, Pro and Consumer will enter an agreement for the Pro to perform services and the Consumer to pay the Pro for the services rendered prior to the performance of any such services or work. Any agreement entered between the Pro and Consumer is solely between the Consumer and Pro, and Pro Referral and The Home Depot are not parties to such agreement. Pro will be solely responsible for ensuring that any agreement it enters with Consumer is legally enforceable and in compliance with local, state and federal laws, including by way of example and not limitation laws relating specifically to home improvement work. Pro Referral and The Home Depot are not and will not be parties or third-party beneficiaries to any agreements entered into by and between Consumer and Pro.
2. Pro Obligations
2.1 Registration and Skills Profile. Prior to becoming an active Pro on the Website, Pro must complete and pass Pro Referral's registration process, which includes without limitation: (1) completing an application form; (2) providing required personal, business and payment information; and (3) passing Pro Referral's background screening process. Pro's application is subject to Pro Referral's approval in its sole discretion. Information provided in Pro's application will be used to create the initial "Skills Profile" on the Website. After application approval, Pro may modify the Skills Profile or create additional Skills Profiles that accurately reflect its service offerings. All individuals, acting on behalf of Pros must be at least eighteen years of age to apply on the Website and complete a Skills Profile. Pro warrants and represents that the information provided in Pro's Skills Profile(s) is accurate, up to date and in compliance with all applicable laws. Pro represents and warrants that it is duly licensed (if applicable by local, state, or federal law) to perform the services it offers to Consumers and advertises in its Skills Profile. Pro Referral reserves the right to review all Skills Profiles and to delete any content posted on the Website in its absolute discretion.
2.2 Pro's Obligations to Consumer. Pro is solely responsible for managing appointments and the relationship with Consumers. Pro Referral makes no representations or warranties as to the conduct of any Consumer or the Consumer's ability to pay a Pro. Any dispute between Pro and Consumer must be addressed directly by and between Consumer and Pro.
2.4 Subverting Pro Referral's Marketplace. Pro agrees (1) that Pro will not reject a Consumer's Vertical (defined in Section 3.4) referral after contacting the Consumer â€“ any contact with the referred Consumer renders rejection of the Vertical referral a prohibited subversive use of Pro Referral's Website; (2) that Pro will not use Pro Referral's Website or Services with the intention of delegating the performance of a Project to another Pro or to a third party for purposes of garnering a commission, agency or placement fee; and (3) if a Consumer requests services that are outside the scope of the Consumer's original Pro Request or Project, Pro will refer the Consumer back to Pro Referral's referral services.
2.5 Passwords. Pro is solely responsible for maintaining the confidentiality of its account password. Pro is also responsible for all activities that occur in connection with its account. Pro agrees to notify Pro Referral immediately of any unauthorized use of its account.
2.6 Insurance/Bonding/Licensing. Pro is allowed to post information on insurance, bonding and licensing on the Website, and Pro is required to keep any posted information accurate and current. Pro represents that the information it provides or posts on the Website is complete, accurate and current. Pro agrees that it is solely responsible for the information posted by Pro on the Website and for its maintenance. Pro Referral is in no way required to validate, confirm or update Pro's insurance, bonding or licensing information. By completing a Skills Profile or adding skills to your Skills Profile, Pro represents that it is properly licensed (if applicable by local, state, or federal law) to perform services Pro listed in Pro's Skill Profile. Further, by offering services to a Consumer, Pro represents that it is properly licensed in the jurisdiction in which services were procured and in the location of where Pro offers to perform such services.
3.1 Payment Process. Consumer has the sole obligation to make payment for Pro's work or services. Pro Referral has no obligation whatsoever to ensure payment by Consumer to Pro for Pro's services pursuant to the agreement between the Consumer and Pro. Pro and Consumer are solely responsible for making payment arrangements with each other.
3.2 Deposits. As part of the agreement between the Pro and Consumer, Pro may obligate the Consumer to pay a deposit only in accordance with applicable laws.
3.3 Fees. In exchange for the referral services provided to Pro by Pro Referral, Pro agrees to the payment of fees to Pro Referral as set forth in Section 3.4 of this Agreement.
3.4 Payments to Pro Referral. Pros pay Pro Referral for Pro Referral's Services by applying accrued or purchased Pro Referral points to pay for individual referrals. Each Pro Request occupation ("Vertical") referral is assigned one of three Pro Referral point tiers ("Tier"), and each Tier is assigned a Pro Referral point value. The applicable Tier point value for a Vertical referral is deducted or charged against the Pro's accrued Pro Referral points when a Consumer selects the Pro to contact the Consumer in response to a Pro Request. The following table provides the current Verticals, Tiers, and Pro Referral point values and is subject to change in Pro Referral's sole discretion by posting on the Website an updated table in this Agreement:
| Landscaper |
Lawn and Garden Care
| 1 |
| 40 |
|Pool/Hot Tub Pro||1||40|
|Water Heater Installer||1||40|
|Low Voltage Pro||2||60|
Pros accrue Pro Referral points in their Pro Referral JobTrack account as follows:
Points begin to accrue from the day the Proâ€™s Pro Referral application is approved. In the event that Pro's accrued points are at or below zero (0), Pro will not receive any Vertical referrals until Pro accrues a positive balance of Pro Referral points. If Pro has one (1) or more accrued points but insufficient points to cover the applicable Tier point value for a Vertical referral, Pro will receive such Vertical referral, and Pro's JobTrack account will be deducted the full applicable Tier point value for the Vertical referral, which will produce a negative point value in Pro's JobTrack account. Before receiving any further Vertical referrals, a Pro with a negative Pro Referral point value balance must accrue Pro Referral points through The Home Depot Pro Xtra Program (which may take up to 48 hours to synchronize point accruals). Unused Pro Referral points expire one (1) year after accrual. Pros have no ownership interest in accrued points, and accrued points do not constitute property of the Pro. Use of the word "accrue" or "earn" herein or in marketing materials will mean "collect" and will not infer that the point system has any value.
3.5 Expiration of Pro Referral Points. For all Pros in ND, SD, NE, KS, MN, IA, MO, WI, IL, MI, IN, OH, PA, NY, VT, ME, NH, MA, RI, CT, NJ, MD, DE, and DC that were registered with Pro Referral on or before August 2, 2017, and for all Pros (regardless of registration date) in states other than ND, SD, NE, KS, MN, IA, MO, WI, IL, MI, IN, OH, PA, NY, VT, ME, NH, MA, RI, CT, NJ, MD, DE and, DC, unused Pro Referral points expire one (1) year after accrual. For all Pros registering with Pro Referral after August 2, 2017 (including Pros that may have previously been registered but whose account was terminated such that Pro was required to register again) operating in the States of ND, SD, NE, KS, MN, IA, MO, WI, IL, MI, IN, OH, PA, NY, VT, ME, NH, MA, RI, CT, NJ, MD, DE and, DC, unused Pro Referral points accrued prior to March 15, 2019 expire ninety (90) days after accrual. Pros have no ownership interest in accrued points, and accrued points do not constitute property of the Pro. Use of the word "accrue" or "earn" herein or in marketing materials will mean "collect" and will not infer that the point system has any value.
3.6 Referral Expiration, Cancellation and Refunds. Pro will attempt to contact a Consumer within 48 hours of receiving a Vertical referral. If Pro fails to timely attempt to contact a Consumer, then the referral will expire and Pro Referral may reassign the Vertical referral to a different Pro, however Pro will still be charged the appropriate points for the Vertical referral. Pro may only cancel a referral through Pro Referral via the "not interested" feature in a Vertical referral. Pro Referral may continue to charge Pro for any points prior to receipt of Pro's cancellation. Pro understands and agrees that any misrepresentations or fraud concerning a cancellation are grounds for immediate termination. Pro Referral will not refund any deducted points to Pro's JobTrack account if Pro Referral determines in its sole discretion that Pro has contacted the Consumer after receiving a Vertical referral.
3.7 Taxes. Pro is responsible for paying all applicable taxes, including any sales, use, gross receipts, excise, transaction privilege, or business and occupation taxes associated with materials and services used to complete the Projects for Consumer, and any other costs Pro incurs. Pursuant to Section 6050W of the Internal Revenue Code of 1986, as amended, for tax year 2013 and future tax years, Pro Referral may be obligated to File Form 1099-K with the IRS reporting (a) the name, address, and Taxpayer Identification Number of each Pro to whom one or more payments in settlement of reportable payment transactions (i.e. any payment card transactions and any third party network transactions) are made and (b) the gross amount of the reportable payment transaction with respect to each such Pro. Pros will receive a copy of any Form 1099-K filed by Pro Referral reporting the Pro's information to the IRS.
4.1 Pro Termination. Pro may terminate its account at any time, for any reason. To terminate an account, Pro must send written notice of termination to Pro Referral, Inc., 4000 East 3rd Street, 3rd Floor, Foster City, CA 94404, or email notice of termination to email@example.com. Pro's account will be disabled within 14 days of receipt of termination notice.
4.2 Pro Referral Termination. Pro Referral may terminate Pro's account at any time, with or without cause, by sending notice to Pro at the email address provided in the account registration or at your physical address or addresses provided in your account registration. Pro Referral's termination of an account is effective immediately. If Pro Referral terminates Pro's account for cause, Pro will not be entitled to any refund of points or charges to Pro's JobTrack account.
5.1 Pro Indemnification. Pro will indemnify, defend and hold harmless Pro Referral and its owners, parents, officers, shareholders, affiliates, subsidiaries, associates, directors, employees, subcontractors and agents from and against, any losses, liabilities, claims, causes of action, lawsuits, judgments, civil penalties, damages and expenses ("Claims"), including reasonable attorneys' fees, resulting from or arising out of any act or omission of Pro, except to the extent such loss is caused by Pro Referral's sole negligence. In the event that Pro Referral pays any amount to a third-party related to a Claim for which Pro owes Pro Referral a duty of defense or indemnification, Pro agrees to reimburse Pro Referral all such amounts paid plus any and all related costs and expenses, including reasonable attorneys' fees, incurred by Pro Referral. It is agreed that with respect to any legal limitations now or hereafter in effect and affecting the validity and enforceability of Pro's obligation under this "Pro Indemnification" clause, such legal limitations are made a part of Pro's obligation to the minimum extent necessary to bring this clause into conformity with the requirements of such limitations, and as so modified, Pro's obligation will continue in full force and effect.
5.2 Pro Referral's Right to Assume Defense. Notwithstanding any other provision herein, and without limiting Pro's obligation to fully indemnify Pro Referral under this Agreement, Pro Referral reserves the absolute right to assume the defense of any claim against Pro Referral. In the event that such claim is within the scope of Pro's indemnification obligation, Pro agrees to reimburse Pro Referral any and all costs and expenses, including reasonable attorneys' fees, incurred in the defense of such claim.
5.3 No Settlement Without Consent. Pro will not enter into any settlement or compromise of a claim that would result in the admission of any liability, create any financial liability, cause the release of any of Pro Referral's intellectual property, confidential, or proprietary information, or that would subject Pro Referral to injunctive relief or otherwise effect, bind, restrict or commit Pro Referral without first obtaining Pro Referral's prior written consent.
5.4 Participating in the Defense. Pro Referral has the right, but not the obligation, to participate, as it deems necessary, in the handling, adjustment or defense of any claim. If Pro Referral reasonably determines that defenses are available to it that are not available to Pro, and if raising such defenses would create a conflict of interest for the counsel defending the claim, Pro Referral will be entitled to retain separate counsel, at Pro's expense, to raise such defenses.
5.5 Assumption of Defense. Should Pro fail to assume its obligations under this Section 5, including its obligation to diligently pursue and pay for the defense of the Pro Referral under this Section, Pro agrees that Pro Referral will have the right, but not the obligation, to proceed on its own behalf to so defend itself. Pro Referral will be entitled to reimbursement from Pro of all costs and expenses (including reasonable attorneys' fees) and any amounts paid by Pro Referral on behalf of Pro in connection with Pro Referral's assumption of Pro's defense obligation.
6. Disclaimers, Limitations and Release
6.1 Disclaimer of Warranties. PRO REFERRAL MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE MATERIALS ON THE WEBSITE FOR ANY PURPOSE OR PRO'S PARTICIPATION, BENEFITS, USE OR EXPECTATIONS CONCERNING PRO REFERRAL'S WEBSITE, BUSINESS PLATFORM OR SERVICES. ALL SUCH MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED. PRO REFERRAL SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. PRO REFERRAL WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE WEBSITE, FOR YOUR ACTION OR INACTION IN CONNECTION WITH THIS WEBSITE OR FOR ANY DAMAGE TO YOUR COMPUTER OR DATA OR ANY OTHER DAMAGE YOU MAY INCUR IN CONNECTION WITH THE WEBSITE. YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK.
6.2 Limitation of Liability. IN NO EVENT WILL PRO REFERRAL, ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH PRO REFERRAL'S SERVICES OR ANY DISPUTE PRO HAS WITH THE CONSUMER OT OTHER PRO, THE USE OF THE WEBSITE, THE MATERIALS IN THE WEBSITE, THE DELAY OR INABILITY TO USE THE WEBSITE OR OTHERWISE ARISING IN CONNECTION WITH THE WEBSITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTION DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO PORTIONS OF THIS EXCLUSION MAY NOT APPLY IN THOSE STATES.
6.3 Release. IN EXCHANGE FOR THE REFERRAL SERVICES PROVIDED BY PRO REFERRAL UNDER THE TERMS OF THIS AGREEMENT AND THE GRANT OF ACCESS TO THE WEBSITE, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED BY PRO, PRO EXPRESSLY AGREES TO RELEASE PRO REFERRAL (AND ITS OFFICERS, DIRECTORS, AFFILIATES, PARENT AND SUBSIDIARY COMPANIES, EMPLOYEES AND AGENTS) FROM ANY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES AND DAMAGES (DIRECT, INDIRECT, ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE WEBSITE, PRO REFERRAL'S SERVICES OR ANY DISPUTE PRO HAS WITH ANY CONSUMER OR OTHER PRO. IF PRO IS A CALIFORNIA RESIDENT, PRO WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
7. Website Content.
7.1 Copyright. This Website and the material within it, with exception of content posted by users, are Â© 2017 Home Depot Product Authority, LLC ("HDPA"). Viewing this Website creates a copy of Pro Referral materials in your computer's random access memory or your hard drive or in your proxy server.
7.2 User License. Pro Referral and HDPA jointly grant Pro permission to view this Website and to print individual pages from this Website for Pro's own personal use, subject to the notices, terms and conditions set forth in this Agreement. You may not modify, copy (except as set forth in the preceding sentence), distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, material, software, products or services from the Website. You represent and warrant that you will not use the Website for any purpose that is unlawful, immoral or prohibited by these terms, conditions and notices.
7.3 Trademarks. The trademarks, service marks, and logos (the "Trademarks") used and displayed on this Website are registered and unregistered Trademarks of HDPA and others. Nothing on this Website should be construed as granting, by implication, estoppels or otherwise, any license or right to use any Trademark displayed on the Website, without the prior written permission of the Trademark owner. HDPA aggressively enforces its intellectual property rights to the fullest extent of the law. The name of Pro Referral, the Pro Referral logo or other Pro Referral formatives may not be used in any way, including advertising or publicity pertaining to distribution of materials of this Website, without prior, written permission from Pro Referral. Pro Referral prohibits use of the Pro Referral logo as part of a link to or from any other site unless establishment of such a link is approved in advance by Pro Referral in writing. Fair use of Pro Referral's trademarks requires proper acknowledgment. Other product and company names mentioned in this Website may be the trademarks of their respective owners.
7.4 Links to Third Party Sites. This Website may contain links to websites owned or operated by parties other than Pro Referral. Such links are provided for your reference only. Pro Referral does not control outside sites and is not responsible for their content. Pro Referral's inclusion of links to an outside site does not imply any endorsement of the material on the website or, unless expressly disclosed otherwise, any sponsorship, affiliation or association with its owner, operator or sponsor, nor does Pro Referral's inclusion of the links imply that Pro Referral is authorized to use any trade name, trademark, logo, legal or official seal or copyrighted symbol that may be reflected on the linked website. You further acknowledge and agree that Pro Referral will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such linked website or resource.
7.5 Reliance on Content. Opinions, advice, statements, reviews, offers, or other information or user content posted on or made available through the Website, but not directly by Pro Referral, are those of their respective authors and should not necessarily be relied upon. Such authors are solely responsible for such content. Pro Referral cannot and does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Website supplied by Pros, Consumers, or any other third parties; or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement that appears on the Website that was supplied by Pros, Consumers, or any other third parties. Under no circumstances will Pro Referral or its affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted on the Website or transmitted to or by any users. Content on this Website may be changed from time to time without notice.
7.6 Information Provided to Pro Referral. Pro agrees that all of the content and information posted on the Website, including but not limited to Pro's Skills Profile, screening information, ratings and reviews (including any ratings and reviews or other content posted by you), is the sole and exclusive property of Pro Referral. In the event that Pro provides Pro Referral with any feedback regarding the Pro Referral service or the Website, including without limitation, any flaws, errors, bugs, anomalies, problems with or suggestions for the service or the Website ("Feedback"), such Feedback will be the property of Pro Referral, who will have the right to use such Feedback and related information in any manner we deem appropriate.
7.7 Improper Use. If Pro Referral determines or suspects, in its sole discretion, that Pro is misusing or attempting to misuse or circumvent the Pro Referral services or system, or is using or attempting to use such for any inappropriate purposes, including but not limited to activities such as hacking, infiltrating, fraud, jamming or spamming, Pro Referral reserves the right, in its sole discretion, to immediately terminate Pro's access without notice and to initiate without notice appropriate legal actions or proceedings to seek appropriate remedies or damages, including but not limited to direct and consequential damages, lost revenue, repairs, legal fees, costs and expenses, and to seek specific performance, injunctions or other equitable remedies.
7.8 Pro Posted Content. Pro is solely responsible for the content that it publishes or displays ("posts") or transmits to other users, or that Pro Referral publishes or displays at Pro's request on the Website. Pro will not post on the Website, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, 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). Pro will not provide inaccurate, misleading or false information to Pro Referral or to any other user. If information provided to Pro Referral or another user subsequently becomes inaccurate, misleading or false, Pro will promptly notify Pro Referral in writing of such information.
Pro Referral may review and delete any content, posts, messages, emails, photos or profiles (collectively, "Content"), in each case in whole or in part, that violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm or threaten the safety of users.
By posting Content to any public area of the Website, Pro automatically grants, and represents and warrants that it has the right to grant, to Pro Referral, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, sell, rent, lease, display, reproduce, adapt, modify and distribute such information and Content and to prepare derivative works of, or incorporate into other works, such information and Content, and to grant and authorize sublicenses of the foregoing. Pro further represents and warrants that public posting and use of its Content by Pro Referral will not infringe or violate the rights of any third party.
Content that is illegal or prohibited on the Website includes, without limitation, Content that:
Pro's use of the Website, including but not limited to the Content it posts on the Website, must be in compliance with all applicable laws and regulations. All information Pro includes in its account information and Skill Profile(s) must be accurate, current and complete. Pro Referral reserves the right to investigate and terminate your membership if you misuse the Website or behave in an inappropriate, unlawful or illegal manner.
8. Calls and Text Messages
8.1 Consent to Receive Calls and Text Messages. By providing your telephone number(s) to Pro Referral, you consent to receive non-marketing calls and text messages from Pro Referral and its affiliates, service providers, agents, vendors, business partners, and third parties calling or texting on its or their behalf, including calls and text messages made with an autodialer or prerecorded voice, at the telephone number(s) that you provide. You may also choose to provide consent to receive marketing calls and text messages made with an autodialer or prerecorded voice from Pro Referral and its affiliates, service providers, agents, vendors, business partners, and third parties calling on its or their behalf. You may opt-out of these communications at any time, and consent to receive marketing calls and text messages is not required or a condition of purchasing any products or services.
You agree to notify Pro Referral promptly of any changes to the telephone number(s) that you provide. You also agree to indemnify Pro Referral in full for all claims, expenses, and damages related to or caused in whole or in part by your failure to notify Pro Referral if you change your telephone number, as set forth above.
Message frequency may vary depending on numerous factors including, but not limited to, customer demand, the number of customer status changes, and the number of Vertical referrals, leads or job offers an individual Pro may have at any one time. You also agree that Pro Referral may send texts between the hours of 12:00 am and 11:59 pm.
8.2 How to Opt-In to SMS Program.Â You may opt-in to receive text messages regarding Pro Referralâ€™s services. To opt-in to receive text messages from Pro Referral, please follow the instructions provided at registration or in your account settings. You will receive a text message confirming your opt-in to the program.
8.3 How to Opt-Out of SMS Program.Â To stop receiving text messages from Pro Referral, text STOP to 232266 or turn SMS notifications off in your account settings.
You consent that following a request to unsubscribe, you may receive a message confirming that you have been removed from the Pro Referral messaging program. Following such confirmation message, no additional text messages from Pro Referral will be sent unless you reactivate your subscription to the program.
THIS WILL ONLY OPT YOU OUT OF THE PRO REFERRAL MESSAGE PROGRAM; you will remain opted-in to other The Home Depot and affiliate text message programs (e.g., Text2Confirm) to which you have subscribed.
8.4 Eligibility and Your Mobile Telephone Number.Â You represent that you are the account holder for the mobile telephone number(s) that you provide to opt-in to the text message program. You are responsible for notifying Pro Referral promptly if you change your mobile telephone number. You may notify Pro Referral of a number change by updating your number in your account settings or contacting customer service at 1-855-723-2266.
8.5 Cost.Â Although Pro Referral does not impose a separate fee for sending text messages, message and data rates may apply to each text message sent or received in connection with the programâ€™s text messages, as provided in your mobile telephone service rate plan (please contact your mobile telephone carrier for pricing plans).
8.6 Access or Delivery to Mobile Network is Not Guaranteed.Â Delivery of information and content to a mobile device may fail due to a variety of circumstances or conditions. You understand and acknowledge that network services, including, but not limited to, mobile network services, are outside Pro Referralâ€™s control. Pro Referral is not responsible for delayed or undelivered text messages. Not all mobile carriers are supported.
8.7 Support/Help.Â To request more information, text HELP to 232266. You can also call customer service at 1-855-723-2266.
8.8 Termination of Text Messaging.Â Pro Referral may suspend or terminate your receipt of text messages if it believes you are in breach of these terms, conditions or notices. Your receipt of text messages is also subject to termination in the event that your mobile telephone service terminates or lapses. Pro Referral reserves the right to modify or discontinue, temporarily or permanently, all or any part of the text messaging services you receive, with or without notice.
9.Â Electronic Notices.
You may have the opportunity to communicate with Pro Referral via e-mail, postal mail, telephone, and our web site. Pro Referral may issue notices via these various channels, including by sending an e-mail to an address you provide or a text message to a number that you provide. You agree that such notices will have legal effect.
You also agree that notices sent by e-mail or text satisfy any requirement that notices be provided in writing.
You may have the right to withdraw your consent to receive certain electronic communications, and, when required by law, Pro Referral will provide you with paper copies upon request. You may make such a request by calling 1-855-723-2266. If you withdraw your consent, Pro Referral reserves the right to terminate your use of its products or services.
To receive, access, and retain the notices that Pro Referral sends via e-mail, you must have Internet access and a computer or device with a compatible web browser. You will also need software capable of viewing files in PDF format. Your device or computer must have the ability to print, or download and store, e-mails and PDF files. To receive, access, and retain the notices that Pro Referral sends via text, you must have a cellular phone or similar device capable of receiving and retaining text messages. By accepting these terms, you confirm that you are able to receive, access, and retain the notices that Pro Referral may send. You may update your contact information by calling customer service at 1-855-723-2266.
10.1 This Agreement may be changed from time to time, and you agree to be bound by any changes that are posted on the Website or which are otherwise communicated to you.
10.3 Relationship of the Parties. Pro Referral and its affiliated companies provide only a referral service to Pro. Pro Referral is not an agent of Pro and Pro is not an agent of Pro Referral. In no event will Pro Referral be considered a general contractor, specialty contractor, construction manager, project manager, joint employer, joint venture, or partner of Pro or any of its affiliates or their respective personnel.
10.4 References to Pros. Pro will be responsible to Pro Referral for acts and omissions of Pro's personnel, subcontractors, suppliers, agents, equipment, facilities and resources used by Pro, regardless of whether Pro owns, operates or controls said equipment, facilities or resources.
10.5 The Home Depot Authorized Service Providers. (a) Agreements. In the event that Pro is also a The Home Depot authorized service provider and participates in any formal integrated program offered by The Home Depot ("Home Depot Pro"), Pro expressly agrees that with respect to Projects that are within the service program type(s) that Pro performs for The Home Depot ("THD Services"), Pro will comply with the terms and conditions of its Service Provider Agreement ("SPA") with The Home Depot in addition to this Agreement. In the event of any conflict between this Agreement and the SPA, the SPA will govern with respect to Pro's THD Services. In all other respects, this Agreement will stand in full force and effect.
10.6 Non-Exclusivity. This Agreement is non-exclusive and Pro Referral may provide Pro Referral's services to any other service provider. Similarly, Pro may use referral services of any other business similar to Pro Referral.
10.7 Pro may not assign this Agreement without the express written consent of Pro Referral.
10.8 If any part or parts of this Agreement are held to be invalid, the remaining parts of this Agreement will be valid and enforceable.
10.9 This Agreement will be governed by and construed in accordance with the laws of the State of Georgia.
10.10 At the sole option of The Home Depot and Pro Referral, any claim, dispute or controversy arising out of, relating to or concerning in any way Pro Referralâ€™s Services or any dispute Pro has with any Consumer or other Pro, the use of the Website, the materials on the Website, the delay or inability to use the Website or otherwise arising in connection with this Website or this Agreement will be resolved by binding arbitration administered by the American Arbitration Association ("AAA") under its commercial arbitration rules. The decisions of the arbitrators will be binding and conclusive upon all parties involved, and judgment upon any arbitration award may be entered by any court having competent jurisdiction. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator/AAA. The Home Depot and Pro Referral may elect not to use arbitration for any individual claim. IF ARBITRATION IS CHOSEN BY THE HOME DEPOT OR PRO REFERRAL WITH RESPECT TO A CLAIM, YOU WILL NOT HAVE THE RIGHT TO LITIGATE THE CLAIM IN COURT, HAVE A JURY TRIAL, OR ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR BY THE AAA COMMERCIAL ARBITRATION RULES OR APPLICABLE LAW. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. This Section will survive termination of this Agreement and your use of Pro Referralâ€™s Services.
IN NO EVENT WILL THE HOME DEPOT, PRO REFERRAL, THEIR AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PROGRAMS, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. TO THE EXTENT YOUR STATE DOES NOT ALLOW THE LIMITATION OF CERTAIN TYPES OF DAMAGES, PORTIONS OF THIS EXCLUSION MAY NOT APPLY TO YOU.
10.11 No Third Party Beneficiaries. Except as otherwise set forth expressly herein, nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than Pro Referral and the Pro, any benefit, right or remedy.
10.12 Pro Referral may provide assistance and guidance through customer care representatives. When communicating with our customer care representatives, you may not to be abusive, obscene, profane, offensive, sexist, threatening, harassing, and racially offensive or otherwise behave inappropriately. If we feel that your behavior toward any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate you. You acknowledge and agree that Pro Referral may monitor or record any telephone calls between you and Pro Referral.
10.13 The following provisions will survive termination of this Agreement: 1.5, 2.5, 3.1, 3.2, 3.3, 3.6, 3.8, 4.2, 5.1, 5.2, 5.3, 5.4, 5.5, 6.1, 6.2, 6.3, 7.1, 7.3, 7.5, 7.6, 7.7, 7.8, 10.1, 10.2, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12 and 10.13.