Yardzen Terms of Service

Date of Last Revisions : June 24, 2024

PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN ARBITRATION AGREEMENT AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE ARBITRATION AGREEMENT LIMITS YARDZEN, INC’S LIABILITY TO YOU AND REQUIRES INDIVIDUAL ARBITRATION FOR LEGAL DISPUTES BETWEEN YOU AND YARDZEN, INC.

Yardzen, Inc. (“Yardzen”) provides direct landscape Design Packages (as defined in Section 5) as well as digital a platform that enables Clients (as defined herein) to locate, contact, and hire Professionals (as defined herein) for a variety of professional services, including but not limited to, landscape architecture and remodeling (“Professional Services”). “Clients” are individuals or companies seeking to obtain Professional Services from Professionals and are therefore clients of Professionals, and “Professionals”  are self-employed individuals or businesses seeking to perform Professional Services for Clients (collectively Professionals and Clients, “User” or “Users”). Your use of the Yardzen website, https://yardzen.com (“Website”), the Yardzen application for a mobile phone or any other device (“Yardzen App”, and together with the Website, “Yardzen Platform”), and the Yardzen Services (defined in Section 1) are subject to your compliance with these terms and conditions of service (“Terms”). Please carefully read these Terms, including the Yardzen Privacy Policy available at https://yardzen.com/privacy-policy before you use the Yardzen Services or access the Platform.

These Terms may be updated or amended by us from time to time without notice to you by posting a link to the footer of our Website to a revised version of the Terms. Any changes will be effective prospectively as of the date noted when the updated Terms are posted. It is your responsibility to periodically review these Terms in case of any such updates or amendment. Your continued use of the Yardzen Services will constitute an agreement to any revised or updated Terms. If you do not agree to any updates or amendment, you must cease using the Yardzen Services.

1. ACCEPTANCE

These Terms constitute a legally binding agreement between Yardzen and you. You may either enter into these Terms on your own behalf or on behalf of your company. The Terms govern your use of the services, products, features, functions, technologies or content offered on the Platform, and all related sites and applications, regardless of how accessed, including by computer, mobile phone, table or any other device (collectively, “Yardzen Services”).

BY CLICKING “I ACCEPT,” INSTALLING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE YARDZEN SERVICES, YOU ARE REPRESENTING TO US THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, YOU ARE OVER THE AGE OF 18 (OR OLDER IF YOU RESIDE IN A STATE WHERE THE MAJORITY AGE IS OLDER), ARE PHYSICALLY LOCATED IN THE UNITED STATES, AND ARE EITHER CONSENTING TO BE LEGALLY BOUND BY THESE TERMS ON YOUR OWN BEHALF OR ON BEHALF OF A COMPANY AS AN AUTHORIZED REPRESENTATIVE OF THAT COMPANY. IF YOU ARE CONSENTING ON BEHALF OF A COMPANY, THEN YOU FURTHER REPRESENT TO US THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THESE TERMS AND THAT THE COMPANY AGREES TO BE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS OR CANNOT MAKE THESE REPRESENTATIONS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE YARDZEN SERVICES. YOUR USE OF THE YARDZEN SERVICES, AND YARDZEN’S PROVISION OF THE YARDZEN SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY YARDZEN AND BY YOU TO BE BOUND BY THESE TERMS.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 24, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND YARDZEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.

2. ADDITIONAL TERMS; BUSINESS DAYS

Some of the Yardzen Services may be subject to our additional terms, conditions, agreements, policies, guidelines, rules, and schedules, which will be posted or made available separately from these Terms when the Yardzen Service is offered (“Additional Terms”), including our Privacy Policy, located at https://yardzen.com/privacy-policy and the AAA Rules (described in Section 24.7). Such Additional Terms are incorporated into and form a part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.

For purposes of these Terms, our business days are Monday through Friday, excluding federal banking holidays.

3. CHANGES TO THESE TERMS; MODIFICATIONS TO THE YARDZEN SERVICES

We may change these Terms from time to time. For example, we might change these Terms if there are changes to the Yardzen Services, our technology, applicable laws, or for other reasons. If we do that, we will give you notice by posting the updated Terms on our Platform. Any changes will become effective immediately after they are posted and will apply to your use of the Yardzen Services after the changes become effective, except that changes addressing modifications to the Yardzen Services or new functions or changes made for legal reasons may be effective immediately, with or without notice to you. Your continued use of the Yardzen Services after these Terms have changed means that you accept those changes. If you do not agree to any changes, you cannot continue using the Yardzen Services. We may discontinue, temporarily or permanently, the Yardzen Services or any part of the Yardzen Services, or otherwise change the Yardzen Services with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Yardzen Services.

PLEASE NOTE THE FOLLOWING HIGHLIGHTS OF THESE TERMS

• You must be at least the legally required age in the jurisdiction in which you reside and otherwise capable of entering into binding contracts, in order to use or access the Yardzen Platform as set forth in Section 8.
• Your agreement that the technology for the Yardzen Platform is provided “as is” and without warranty as set forth in Section 21.
• Your agreement that Yardzen provides no warranty and has no liability regarding User action on the Yardzen Platform or the performance of Professional Services as set forth in Section 21.
• Your acknowledgment and agreement that Yardzen does not supervise, scope, direct, control, or monitor a Professional’s work or the Professional Services performed as set forth in Section 7.5.
• Your acknowledgement and agreement that Clients are solely responsible for determining if the Professional they hire is qualified to perform the Professional Services as set forth in Sections 6 and 7.5.
• Your acknowledgement and agreement that Professionals are independent contractors of Clients and are not employees, independent contractors or service providers of Yardzen as set forth in Section 6.
• Your agreement to hold harmless and indemnify Yardzen, members, managers, officers, directors, employees, consultants and or/contractors from claims due to your use of or inability to use the Yardzen Platform or content submitted through your Yardzen Account (as defined In Section 4) to the Yardzen Platform as set forth in Section 23.
• Your agreement to arbitrate disputes with Yardzen on an individual basis to the fullest extent permitted by applicable law as set forth  in Section 24.

4. Yardzen Account

4.1. Full Set of Available Features

To access the full set of features of the Yardzen Service and to use the Yardzen Platform, you must create a User or Company account (collectively, “Yardzen Account”). When applying for your Yardzen Account on the Yardzen Service, you may be required to provide us with some information about yourself, including, but not limited to, your name, business name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number. You agree that: (a) the information you provide to us is accurate and that you will keep it accurate and up to date at all times; (b) you are solely responsible for maintaining the confidentiality of your Yardzen Account and for restricting access to it; and (c) you accept responsibility for all activities that occur in your Yardzen Account or under your access credentials. You acknowledge and agree that Yardzen is not responsible for any third-party access to your Yardzen Account that results from theft or misappropriation of your Yardzen Account. You agree to immediately notify us at [email protected] of any unauthorized use of your access credentials or otherwise of your Yardzen Account or any other known or suspected breach of security. We will not be liable for any loss or damage arising from your failure to comply with this Section 4.

If we discover that any information provided in connection with your registration is false or inaccurate, we may suspend or deactivate your Yardzen Account.

Yardzen has the right to restrict anyone from completing registration for a Yardzen Account as a Professional for any reason.

4.2. Limited Set of Available Features

Those individuals that visit the Website, but do not create a Yardzen Account (“Visitors”), can only access and use a limited set of available features of the Yardzen Service.  The set of features available to Visitors (“Visitor Features”) includes:

• YardAI Landscape Generator (as defined in Section 17)

Yardzen reserves the right to modify or remove access to the Visitor Features at any time in its sole discretion.

5. The Yardzen Landscape Design Service

As part of the Yardzen Services, Yardzen offers landscape design packages (“Design Packages”) to Users (“Landscape Design Service”).  More information on the different Design Packages and pricings offered can be found at https://dashboard.yardzen.com/packages/.

5.1. For Clients

As part of the Landscape Design Service, Yardzen works with Clients via an in-depth planning and design process that includes the delivery of photo-realistic renderings and computer-aided design (CAD) plans that incorporate the Client’s budget, priorities, and unique property attributes.

5.2. For Professionals

Yardzen is offering unique Design Packages (“Yardzen Professional Design Packages”) for purchase at discounted pricing to Professionals (“Yardzen Professional Designs”).  The Yardzen Professional Design Packages will be available in both two-dimensional and three-dimensional renderings (“Render Type”).

Yardzen reserves the right to terminate its Yardzen Professional Designs offering or to change the terms set out in this Section 5.2 at any time in its sole discretion.

6. The Yardzen Platform Connects Clients and Professionals

The Yardzen Platform enables Clients to locate, connect, and hire Professionals for a variety of Professional Services. Clients and Professionals together are hereinafter referred to as “Users.”  If you agree on the terms of a Professional Service with another User, you and such other User form a Professional Service Contract (as defined in Section 9) directly between the two of you as set forth in more detail in Section 9 below.

Any reference on the Yardzen Platform to a Professional being licensed or credentialed in some manner, or “badged,” “reliable,” “reliability rate,” “elite,” “great value,” “background checked,” “vetted” (or similar language) designations indicates only that the Professional has completed a relevant Yardzen Account registration process or met certain criteria and does not represent anything else. Any such description is not an endorsement, certification or guarantee by Yardzen of such Professional’s skills or qualifications or whether they are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for Clients to evaluate when they make their own decisions about the identity and suitability of Professionals whom they select, interact, or contract with via the Yardzen Platform.

The Yardzen Platform enables connections between Users for the fulfillment of Professional Services. Yardzen is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, rates charged, payment, failure to provide, or any other aspect whatsoever of Professional Services, Professionals, or Clients, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings or reviews provided by Clients with respect to a Professional. Yardzen makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Professional Services requested or Professional Services provided by, or the communications of or between, Users identified through the Yardzen Platform, whether in public or private, via on- or off-line interactions, or otherwise howsoever.

7. Professional Background Checks; Professional Vetting Process; Professional’s Licensing; Professional Insurance Requirements

7.1. Professional Background Checks

Professionals are subject to a review process before they can register for and during their use of the Yardzen Platform, which may include but is not limited to identity verification and criminal background checks, using third party services as appropriate ( “Background Checks” ). Although Yardzen will perform Background Checks, Yardzen cannot confirm that any User is who they claim to be, and Yardzen cannot and does not assume any responsibility for the accuracy or reliability of Background Check information.

When interacting with other Users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. Yardzen will not be liable for any false or misleading statements made by Users of the Yardzen Platform.

7.2. Professional Vetting Process

Prior to onboarding a Professional to the Yardzen Platform, Yardzen utilizes criteria, that includes but is not limited to the following, to determine if a Professional qualifies to be onboarded: 

• Is the Professional licensed and bonded as required in each state in which they render Professional Services?
• Is the Professional personable, professional, and offering exceptional customer service?
• Does the Professional have reviews that are positive and free of any mention of: (1) legal action taken by a previous client, (2) illegal activity on the job site, or (3) a client fearing for their personal safety while the Professional was on the job site?
• Does the Professional have an impressive and comprehensive portfolio on their website or that is available through other social media?

7.3. Professional’s Licensing

Professionals alone are responsible for identifying and obtaining any required licenses, permits, or registrations before offering Professional Services and undertaking Professional Services on the Yardzen Platform. Indeed, certain types of Professional Services may be prohibited altogether, and it is the responsibility of Professionals to avoid such prohibited Professional Services. Penalties may include fines or other law enforcement. If you have questions about how national, state, and local laws apply to your Professional Services on the Yardzen Platform, you should seek legal guidance.

If you or your company is operating under a license with special restrictions, you agree and represent that you will at all times operate within the guidelines as specified by such restrictions.

7.4. Professional’s Insurance Requirements; Insurance Disclosure to Client

Unless Yardzen requires a higher level of bond or insurance coverage, which may change from time to time after onboarding, Professionals are, and at all times will be, properly bonded and insured at levels in accordance with industry  standards, trade regulations, and applicable laws for the Professional Services for which the Professional is engaged.

Client and Professional waive all rights against each other, against each of their directors, agents, servants, employees, divisions, subsidiaries, members, shareholders, and affiliated companies, and against Professional Services Associates and their respective directors, agents, servants, employees, divisions, subsidiaries, members, shareholders, and consultants for any claims related to the Yardzen Services, to the extent covered by insurance obtained pursuant to these Terms, except such rights as they may have to the proceeds of such insurance. Professional shall require all Professional Services Associates to provide similar waivers in writing, each in favor of all other parties enumerated above, for disputes related to the Yardzen Services. Each policy, including workers’ compensation, shall include a waiver of any right of subrogation against the Indemnitees (and their respective directors, agents, servants, employees, divisions, subsidiaries, members, shareholders, and affiliated companies) for disputes related to the Yardzen Services.

7.5. Client’s Obligation of Due Diligence

Because Yardzen does not supervise, scope, direct, control, or monitor a Professional’s work or performance of Professional Services, Clients must determine for themselves whether a Professional has the skills and  qualifications necessary to perform the specific Professional Service at hand. Clients may wish to consult their national, state, or local requirements to determine whether certain Professional Services are required to be performed by a licensed or otherwise registered professional. Clients may also wish to discuss with their Professional any specific hazards, obstacles, or impediments (both visible and concealed) at the location where the Professional Service is to be performed that may impact the performance of the Professional Service.

8. Visitor and User Representations and Warranties

All Visitors and Users represent and warrant that:

• You are physically located in the United States when accessing the Yardzen Platform.
• You are at least of the legally required age in the jurisdiction in which you and are otherwise capable of entering into binding contracts;
• You have the right, authority and capacity to enter into these Terms and to abide by its terms and conditions, and that you will so abide;
• You have read, understand, and agree to be bound by these Terms and the Privacy Policy;
• When using or accessing the Yardzen Platform, you will act in accordance with all applicable local, state, or law or custom and in good faith;
• You will not use the Yardzen Platform for any illegal services.

Additionally, all Users represent and warrant that:

• You will respect the privacy (including without limitation private, family and home life), property, and data protection rights of Users and will not record (whether video or audio or otherwise) any Professional Service or any interaction by or with any User and/or Yardzen in connection with the Yardzen Platform without the prior written consent of  the relevant User, as applicable;
• You will fulfill the commitments you make to other Users, communicate clearly and promptly through the Yardzen Platform’s chat function, be present and/or available at the time you agree upon with your Professional or Client as the case may be, and only utilize the third-party payment service provider specified or approved by Yardzen “Payment Processor”) to make or receive payment for Professional Services provided through the Yardzen Platform and to pay Yardzen’s Platform Fee (as defined in Section 10.4.1);
• You will act professionally and responsibly in your interactions with other Users;
• You will use your real name or business name on your profile;
• Where you enter into these Terms on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to these Terms.
• Other than as fully and promptly disclosed in writing to Yardzen, you do not have any motivation, status, or interest that Yardzen may reasonably wish to know about in connection with the Yardzen Platform, including without limitation, if you are using or will or intend to use the Yardzen Platform for any journalistic, academic, investigative, or unlawful purpose.

Professionals additionally represent and warrant that:

• When using the Yardzen Platform, you are operating as a sole proprietor, partnership, limited liability company, limited liability partnership, corporation or other business entity;
• You are customarily engaged in an independently established business of the same nature as the Professional Services performed for Clients through the Yardzen Platform, and maintain an independent clientele;
• You have the unrestricted right to work in the jurisdiction in which you will be performing Professional Services;
• If the Professional Service is performed in a jurisdiction that requires you to have a business license or business tax registration, you have the required business license or business tax registration;
• You are responsible for identifying and obtaining any required licenses, permits, or registrations before offering Professional Services and undertaking Professional Services, if such license is applicable to the Professional you are performing);
• You have any and all insurance required to operate your business and provide your Professional Services;
• You will use your real name or business name and an up-to-date photo on your profile;
• You will honor your commitments to other Users on the Yardzen Platform, including by responding to invitations promptly; performing the Professional Services as agreed upon with your Client; and providing timely, high-quality Professional Services to your Clients;
• You will only offer and provide Professional Services for which you have the necessary skills and expertise, and provide those Professional Services safely and in accordance with all applicable laws.
• You agree to promptly disclose to Yardzen in writing if you have any potentially relevant criminal convictions, that arise during your use of the Yardzen Platform.
• During the Professional’s participation in the Yardzen Platform and for an additional period of 12 months after the Professional ceases participating in the Yardzen Platform, the Professional must not intentionally disparage the reputation of Yardzen. This includes intentionally speaking negatively about; Yardzen designs, Yardzen systems and processes, Yardzen employees and Yardzen as a company.

9. Contract between Clients and Professionals

You acknowledge and agree that a legally binding contract with another User (“Professional Service Contract”) is formed when you and that User agree on the terms of a Professional Service. The terms of the Professional Service Contract include the terms set forth in this Section 9, the engagement terms proposed and accepted on the Yardzen Platform, and any other contractual terms accepted by both the Professional and their Client to the extent such terms do not conflict with these Terms, including this Section 9, and do not expand Yardzen’s obligations or restrict Yardzen’s rights under these Terms. Yardzen is not a party to any Professional Service Contract and the formation of a Professional Service Contract will not, under any circumstances, create an employment or other service relationship between Yardzen and the Professional, nor will it create an employment relationship between the Client and the Professional. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of Yardzen.

Upon receipt of the signed Professional Services Contract from a Client, Professional must notify Yardzen within twenty-four (24) hours with the Professional Services’ details, including: (1) the amount to be received by Professional as and for the Professional Services, (2) anticipated start date for the provision of the Professional Services, and (3) provide a fully executed copy of the Professional Services Contract.

Upon completion of work on a Professional Service, Professional will notify Yardzen of the completion date. Additionally, the Professional shall send Yardzen the final invoice for the Professional Services, advisement of any change orders to the original Professional Services Contract, and confirmation of the net payment received by Professional for said Professional Services.

Each User agrees to comply with the Professional Services Contract and these Terms during the engagement, performance and completion of a Professional Service.

9.1. Professional Services Associate; Client’s Agent

Where approved in advance by the Client, the Professional is not obligated to personally perform the Professional Services. Professionals may engage assistants, subcontractors or other personnel (collectively “Professional Services Associate” ). A Professional’s failure to comply with this provision shall be a violation of these Terms and could lead to removal from the Yardzen Platform. The Professional assumes full and sole responsibility for the acts and omissions of such Professional Services Associates and is fully responsible for the lawful payment of all compensation, benefits and expenses of Professional Services Assistants, if any, and for all required and applicable tax withholdings as to such Professional Services Associate. Clients are responsible for confirming with their Professional that any Professional Services Associate are registered Professionals on the Yardzen Platform.

While using the Yardzen Platform, Clients, in their sole discretion, determine whether they will be present or not when a Professional Service is performed. Clients agree that if someone other than them books the Professional Service on their behalf or is present in their stead when the Professional Service is performed, they are appointing that person as their agent (“Client’s Agent”) and the Professional may take and follow direction from the Client’s Agent as if such direction was given from the Client. If you are a Client’s Agent and accessing and using the Yardzen Platform on behalf of a Client, you represent that you have the authority to act as their agent and to bind that person as the principal to all provisions of these Terms. Client’s Agent may authorize any applicable waiver of the Client’s scoping, direction, or instruction of the Professional’s work or performance of the Professional Service in the Client’s stead. Client agrees that such direction and/or waiver is valid against Client and Client’s Agent, and Client shall be responsible and liable for all such direction and/or waiver as if made by. Client assumes full and sole responsibility for the acts and omissions of Client’s Agents.

9.2. Professional Services Estimates’ Data

“Professional Services Estimates” shall mean the estimates presented by Professionals to Clients for the rendering of Professional Services through the Yardzen Platform (“Professional Services Estimates”). Professionals hereby acknowledge and consent to Yardzen’s using and sharing data including, but not limited to, the estimated costs of labor and materials to be used in rendering the Professional Services as well as the total estimated cost for said Professional Services from the Professional Services Estimates (“Professional Services Estimates Data”) on a de-identified and aggregated basis with other Professionals. Such Professional Services Estimates Data will never be shared by Yardzen with Clients.

10. Billing and Payments; ACH Debit & Credit Card Authorization; Taxes and Withholdings

10.1. Payment Method

As part of their onboarding to the Yardzen Platform:

• Clients shall provide Yardzen with a valid credit card number or bank account information.
• Professionals shall either utilize the Yardzen Payments (as defined in Section 10.4.2.1), or provide a valid credit card number or bank account information.

10.2. Fees

In addition to any of the fees referenced in these Terms, any other fees associated with your Yardzen Account can be found on our current fee schedule which is posted here (“Fee Schedule”). We reserve the right to change the fees associated with the Yardzen Services. If we do change our fees, we will provide notice of the change on the Fee Schedule or in an email to you, at our option, at least thirty (30) days before the change is to take effect. Your continued use of the Yardzen Service after the price change becomes effective constitutes your agreement to pay the changed amount.

10.3. Design Package Payments

10.3.1. For Clients

Yardzen requires a one-time payment through the Platform for use of the Yardzen Services relative to the Design Packages (“Design Package Payment”), fees vary depending on which Design Package is selected by the Client.

When you make a Design Package Payment, you expressly authorize us or the Payment Processor to charge you for such Transaction. We may ask you to supply additional information relevant to your Design Package Payment, including your credit card number, the expiration date of your credit card and your email and postal address for billing and notification (collectively, “Payment Information”). When you initiate a Design Package Payment, you authorize us to provide your Payment Information to third parties so that we can complete your Design Package Payment and to charge your payment method for the type of Design Package you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Design Package Payment (such information shall be included within the definition of Payment Information).

If work has not been completed on your Design Package, you have the option to cancel the Design Project and receive a full refund of the Design Package Payment amount within 7 calendar days of your Design Package Payment. If you choose to cancel the Design Package between the 8th and 30th calendar days after your Design Package Payment, and no work has been initiated on your Design Package, a refund will be provided, but will an amount equal to 90% of the Design Package Payment amount (i.e., Design Package Payment amount less a 10% processing fee. Beyond these timeframes or once work has commenced on your Design Package, no refunds will be issued.

Yardzen also reserves the right to cancel a Design Package Payment in the event of unexpected circumstances during its completion, with a commitment to refund any payment you have already remitted for the Design Package. If you wish to cancel a Design Package Payment, please initiate the process by sending an email to [email protected].

10.3.2. For Professionals

Yardzen requires Professionals to make the following payments for the Yardzen Professional Design Packages purchased:

• A flat fee for the applicable Yardzen Professional Design Package Render Type (“Render Type Fee”); and
• A percentage of the Yardzen Professional Design Package project’s budget (“Yardzen Professional Design Package Revenue Share”).

10.4. Professional Services Payments

10.4.1. Payments made by Clients

Clients contract for Professional Services directly with Professionals through the Yardzen Platform. Yardzen will not be a party to any Professional Service Contracts for Professional Services. Client, and not Yardzen, is responsible for payment for all Professional Services through the Yardzen Platform. Such payment must be made via the Yardzen Platform. Yardzen is not obligated to compensate the Professional for the Client’s failure to pay for Professional Services.

Upon a Client’s selection of a Professional for the provision of Professional Services, a non-refundable platform fee (“Yardzen Platform Fee”) is due and payable by Client to Yardzen.  The Yardzen Platform Fee is non-refundable, earned when paid and compensates Yardzen for the Yardzen Services provided to the Client through the date of the selection of the Professional.

Additionally, upon a Client’s engagement of a Professional for Professional Services, the Client shall make a deposit payable to the Professional (“Professional Services Deposit”) through the Yardzen Platform and which will be credited toward the total Project Budget (as defined herein below).

Clients on the Yardzen Platform will be required to provide their payment method details to Yardzen and the Payment Processor. Yardzen will create and send invoices in accordance with the Professional Service Contract, even if the Professional Service is not completed in its entirety or is designated as “ongoing”. Clients will be responsible for paying the invoice(s) for each Professional Service (“Professional Service Invoice”), which will include (a) the pricing terms of the Professional Service provided by the Professional and agreed upon by the parties (“Project Budget”) less the Professional Services Deposit previously paid, (b) any out of pocket expenses agreed upon by the parties and submitted by the Professional in connection with the Professional Service,  or (c) cancellation charges, if applicable. In addition, a tip or gratuity, as applicable, may be added by the Client or at the Client’s direction to the Invoice(s), and all such tips or gratuities shall go directly to the Professional. Clients may also be charged credit card processing fees equal to 3% of the aggregate expense amount if expenses related to a Professional Service individually, or Professional Services in the aggregate over a 30-day period, exceed $300. Professionals will be responsible for paying (i) registration fees, if applicable, and (ii) repayment of erroneous payments.

The Client shall pay the Professional in full for all Professional Services via the Payment Processor as indicated on the Yardzen Platform, at the rates agreed to by the parties in the Professional Service Contract. 

Clients acknowledge and agree that payments made to the Professional through our Payment Processor are between you and the Professional and not with Yardzen.  Yardzen is not a party to your payments unless expressly designated as such on the Site or in these Terms.

You also agree that Yardzen acting on behalf of the Professional, may resubmit a payment for processing one or more times in the event that a prior payment made through the Yardzen Services is declined or returned by the payment network.

Except as set forth in these Terms, all payments processed are non-refundable to you by Yardzen and non-reversable by you through the Yardzen Services.  You may have additional refund or chargeback rights under your method of payment issuer agreement or applicable state and federal laws.

You agree to release Yardzen, its agents, contractors, officers and employees, from all claims, demands and damages (actual and consequential) arising or in any way connected with a dispute related to payments made through the Yardzen Services.  You agree that you will not involve Yardzen in any litigation or other dispute arising out of or related to any transaction, agreement, or arrangement in connection with payments made directly to the Professional or through our Payment Processor.  If you attempt to do so, you shall pay all costs and attorneys’ fees of Yardzen and shall provide indemnification as set forth in Section 23.

When Client receives confirmation through the Yardzen Platform or via email that a Professional Service has been completed, Client automatically authorizes the Payment Processor to process the Professional Service Invoice. Refunds for Professional Services are solely the responsibility of the Professional and not Yardzen.

Yardzen reserves the right (but not the obligation) upon request from Client or Professional, or upon notice of any potential fraud, unauthorized charges or other misuse of the Yardzen Platform, to place a hold any payment made in connection with a Professional Service Invoice, or refund or provide credits, or arrange for the Payment Processor to do so.

10.4.2. Payments made by Professionals

For all Yardzen Professional Design Packages, the Professional agrees to pay Yardzen the following fees as set out on the Fee Schedule:

• The Render Type Fee is immediately due and payable to Yardzen upon purchase of the applicable Design Package Render Type; and
• The Yardzen Professional Design Package Revenue Share is immediately due and payable to Yardzen upon the execution of any contracts that utilize the Yardzen Professional Design Package.

For all Professional Service Contracts, the Professional agrees to pay Yardzen an amount equal to a share of the Project Budget (“Revenue Share”) as set out on the Fee Schedule in two equal installments:

• Fifty-percent (50%) of the Revenue Share is immediately due and payable to Yardzen upon commencement of the Professional Services; and
• Fifty-percent (50%) of the Revenue Share is immediately due and payable to Yardzen upon completion of the Professional Services.

Revenue Share applies to all elements and phases associated with the life of the Professional Services, including any future work performed by the Professional for the Client due to the initial engagement provided through Yardzen.

Professionals must pay the Revenue Share due Yardzen through one of two methods:

10.4.2.1. Yardzen Payments

For any Professional that wishes to have their Revenue Share and Yardzen Professional Design Package Revenue Share payments facilitated by our Payment Processor, you hereby agree that Yardzen may engage Payment Processors through which you may process payment transactions (“Yardzen Payments”) through the Yardzen Services.  We reserve the right to change a Payment Processor at any time, in which case you agree to take whatever steps as we may advise in order to migrate the Yardzen Payments to another Payment Processor.

To connect to the Yardzen Service and process Yardzen Payments through Payment Processors, we will create a Professional Payment Processor account (“Professional Payment Processor Connected Account”) for you that is connected to the Yardzen Services. You will be required to accept the terms of the applicable Payment Processor agreement and the applicable Payment Processor Terms of Service as well as other documentation that the Payment Processor may require (collectively, the “Payment Processor Documentation”). You agree to comply with the Payment Processor Documentation and not to engage in any activity that is expressly prohibited by the Payment Processor Documentation.  A Payment Processor processes your personal information with its own applicable privacy policy.  A Payment Processor may deny the creation of a Professional Payment Processor Connected Account or may suspend or terminate a Professional Payment Processor Connected Account in its discretion in accordance with the Payment Processor Documentation.

You are responsible and liable to Yardzen for all activity on your Professional Payment Processor Connected Account, whether initiated by you or not, including all transactions, disputed transactions, refunded transactions, reversed transactions, associated fines and any use of the Yardzen Services in a manner prohibited under this Agreement or your Payment Processor Documentation.

You agree that we can directly access your Professional Payment Processor Connected Account’s dashboard, including information about your transactions (including purchases and refunds) and Payment Processor account balance (“Payment Processor Connected Account Data”), in order to collect fees, process payments and refunds, handle disputes, process chargebacks, and any other activity necessary to provide Yardzen Payments or other Yardzen Services in accordance with these Terms and our Privacy Policy, and you give us express authorization to conduct any of the above activities on behalf through your Professional Payment Processor Connected Account.

We may exchange Professional Payment Processor Connected Account Data with the Payment Processor as necessary to detect and prevent fraud, misuse, unlawful, abusive or deceptive activity, and otherwise to allow Yardzen and the Payment Processor to each comply with our legal and regulatory obligations.

You represent and warrant that all information provided to Yardzen or the Payment Processor in connection with the creation or maintenance of a Professional Payment Processor Connected Account is true and accurate in all material respects at all times. You will be responsible for any loss or liability incurred by Yardzen due to activity conducted through a Professional Payment Processor Connected Account initiated by you or on your behalf, or using your credentials even if not authorized by you, and Yardzen may deduct such losses from your Professional Payment Processor Connected Account or your Yardzen Account, or require you to pay such losses to Yardzen.

You agree to indemnify, defend and hold harmless Yardzen, the Payment Processor, and their respective affiliates from any claims brought by a third party arising out of any activity conducted through a Professional Payment Processor Connected Account or arising out of your breach of these Terms or the Payment Processor Documentation.

10.4.2.2. ACH Debit and Credit Card Authorization

THIS SECTION PROVIDES AUTHORIZATION TO AUTOMATICALLY DEBIT YOUR CURRENT AND PREVIOUSLY LINKED ACCOUNTS (AS DEFINED HEREIN BELOW) FOR ALL AMOUNTS YOU OWE UNDER THIS HIRE A PRO PROGRAM AMENDMENT.  PLEASE READ IT THOROUGHLY.

For any Professional that does not wish to have their Revenue Share and Yardzen Professional Design Package Revenue Share payments facilitated by our Payment Processor, you hereby agree and authorize Yardzen to electronically debit and credit your designated depository financial institution (“Bank Account”) via Automated Clearing House (“ACH”) or charge and credit your connected credit card (“Credit Card”, collectively with “Bank Account”, “Linked Account”) and, if ever applicable, to correct erroneous debits, charges, and credits via your Linked Account.

Your Authorization to Debit Linked Accounts

• You authorize Yardzen, or its respective successors and assigns, to collect amounts owed under the Terms from your current and previously Linked Accounts.  If we use the ACH network, debits will be governed by the rules established by the National Automated Clearinghouse Association (“NACHA”) for business-related ACH debits.  You also authorize us to debit your Linked Account for verification purposes (through microdeposits or similar means).

Manner and Timing of Payment

• We will debit or charge your Linked Account for all amounts owed to us in connection with the provision of the Yardzen Services as set forth in this Section 10.4.2.2.  If we cannot collect these amounts via ACH or Credit Card, you agree to immediately pay all amounts owed as directed.
• In the event that we make an error in processing an electronic debit or charge, you authorize us to correct the error by initiating an electronic debit, charge or credit to the Linked Account in the amount of such error on or after the date such error occurs. You also acknowledged that the amount and frequency of the foregoing debits, charges, and credits may vary and that you waive your right to receive prior notice of the amount and date of each debit and credit.
• You acknowledge that the electronic authorization contained in this Section 10.4.2.2 represents your written authorization for ACH and Credit Card transactions as provided herein and will remain in full force and effect until you notify us that you wish to revoke this authorization by emailing us at [email protected].

Withdrawing your Authorization

• You must notify us at least thirty (30) Business Days before the scheduled date of any debit from or charge to your Linked Account in order to cancel this authorization.  If we do not receive notice at least thirty (30) Business Days before the scheduled debit or charge date, we may attempt, in our sole discretion, to cancel the debit or charge transaction.  However, we assume no responsibility for our failure to do so.
• If you withdraw your electronic authorization contained herein, we will suspend or close your Yardzen Account, and you will no longer be able to use your Yardzen Account or the Yardzen Services, except as expressly provided in these Terms.
• Please note that your withdrawal of your electronic authorization contained herein will not apply to transactions performed before the withdrawal of your authorization becomes effective.
• Withdrawal of a debit or charge authorization does not terminate your obligation to pay all amounts owed under these Terms.  The Professional will be responsible for all costs of collections and damages if amounts owed are not paid in full when due by the Professional.

In addition to any of your other representations and warranties in these Terms, you represent that: (a) your browser is equipped with at least 128-bit security encryption; (b) you are capable of printing, storing, or otherwise saving a copy of this electronic authorization for your records, and (c) the ACH and Credit Card transactions you hereby authorize comply with applicable law.

10.5. Taxes and Withholdings

In certain jurisdictions, applicable rules may require that we collect or report tax and/or revenue information about you. You agree that Yardzen may issue on your behalf receipts or similar documentation to facilitate accurate tax reporting.

Yardzen does not employ Professionals. Yardzen is not responsible for and will not be liable for workers’ compensation or any tax payments or withholding, including but not limited to unemployment or employment insurance, social security, disability insurance or any other applicable federal or state withholdings in connection with a User’s use of the Yardzen Platform. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines. Therefore, Users of the Yardzen Platform may be liable for any taxes or similar charges required to be collected and/or paid on the Professional Service and/or fees provided under these Terms.

10.6. Payment Processor

Payment processing services are provided by Stripe and are subject to the Stripe Connected Account Agreement, located at https://stripe.com/us/connect-account/legal, which includes the Stripe Terms of Service, located at https://stripe.com/us/legal (collectively, the “Stripe Services Agreement”). By agreeing to these Terms herein, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of paying or receiving payments through the Yardzen Services via Stripe, you agree to provide Yardzen accurate and complete information about you, and you authorize Yardzen to share it and transaction information related to your use of the payment processing services provided by Stripe.

11. User Areas; Acceptable Use

The Yardzen Platform may contain profiles, email systems, reviews, ratings, professional service postings and/or other message or communication facilities ( “User Areas” ) that allow Users to communicate with other Users. You may only use such User Areas to send and receive messages and materials that are relevant and proper to the applicable forum. 

Without limitation, the Yardzen Platform may not be used Visitors or Users for any of the following purposes:

• To defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Visitors, Users and Yardzen staff;
• To publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful language, material or information;
• To upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any Visitor, User, third party, or Yardzen;
• To upload files or scripts such as Trojan horses, corrupt files, SQL injections, worms, timebombs, cancelbots or any other files or software that may damage Yardzen or its Visitor’s or Users’ computers or mobile device;
• To advertise or offer to sell any goods or services for any commercial purpose through the Yardzen Platform which are not relevant to the Professional Services;
• To post or complete a Professional Service requiring a User to (i) purchase or obtain gift cards or money orders (ii) post ratings or reviews on any third-party website in breach of such third-party website’s terms of use, or (iii) otherwise engage in activity that is illegal or deemed dangerous, harmful or otherwise inappropriate by Yardzen in its sole discretion;
• To conduct or forward surveys, contests, pyramid schemes, or chain letters;
• To impersonate another person, Visitor, or User or allow any other person or entity to use your user profile to post or view comments (except as may be permitted under Section 9 for Client’s Agent).

While using the Yardzen Platform, Visitors and Users may not:

• Use the Yardzen Platform for any unauthorized or illegal purpose, including but not limited to posting or performing a Professional Service in violation of local, state, or national law;
• Post (as defined in Section 17.4) or Upload (as defined in Section 20.2) any Homeowner Photos (as defined in Section 17.3) or User Content (as defined in Section 20.2) which you have not obtained the necessary rights and permissions to use accordingly;
• Download any file posted by another Visitor or User that you know, or reasonably should know, cannot be legally distributed through the Yardzen Platform;
• Restrict or inhibit any other User from using and enjoying the User Areas;
• Imply or state that any statements you make (whether on or off the Yardzen Platform) are endorsed by Yardzen, without the prior written consent of Yardzen;
• Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the Yardzen Platform, or the electronic addresses or personal information of others, in any manner;
• Frame or utilize framing techniques to enclose the Yardzen Platform or any portion thereof;
• Hack or interfere with the Yardzen Platform, its servers or any connected networks;
• Adapt, alter, license, sublicense or translate the Yardzen Platform for your own personal or commercial use;
• Remove, alter, or misuse, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Yardzen;
• Post or Upload content to the Yardzen Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals;
• Post or Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner;
• Solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Yardzen Platform as set forth herein;
• Collect usernames, email addresses, or other personal information of Visitors or Users by electronic or other means;
• Use the Yardzen Platform or the Professional Services in violation of these Terms;
• Use the Yardzen Platform in a manner that is false or misleading (directly or by omission or failure to update information), or for the purpose of accessing or otherwise obtaining Yardzen’s trade secret information for public disclosure or other purposes;
• Attempt to circumvent the payments system in any way including, but not limited to, making or processing payments outside of the Yardzen Platform, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
• Register under different usernames or identities after your Yardzen Account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number;
• Cause any third party to engage in the restricted activities above; or
• Use tools with the goal of masking your IP address (like the TOR network).

Users understand that all submissions made to User Areas will be public and that you will be publicly identified by your name or login identification when communicating in User Areas. Yardzen will not be responsible for the action of any Users with respect to any information or materials posted in User Areas.

12. Yardzen App

We may offer Yardzen Services via a mobile device, including the ability to access certain features through the Yardzen App (collectively, the “Mobile Services”). To the extent you access the Yardzen Services or send or receive any communications with us through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using our Mobile Services, you agree that we may communicate with you by SMS, MMS, text message, or other electronic means to your mobile device and, as a result, that certain information about your usage of our Mobile Services may be communicated to us.

13. Rights and Terms for the Yardzen App

13.1 Rights in the Yardzen App Granted by Yardzen

Subject to your compliance with these Terms, Yardzen grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the Yardzen App on a mobile device or computer that you own or control and to run such copy of the Yardzen App solely for your own personal non-commercial purposes in the case of Clients and commercial purposes in the case of Professionals. You may not copy the Yardzen App. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Yardzen App; (ii) distribute, transfer, sublicense, lease, lend or rent the Yardzen App to any third party; (iii) reverse engineer, decompile or disassemble the Yardzen App; or (iv) make the functionality of the Yardzen App available to multiple users through any means. Yardzen reserves all rights in and to the Yardzen App not expressly granted to you under these Terms.

13.2 Downloading the Yardzen App

The Yardzen App and other Software (defined in Section 20.1) may be made available through the Apple, Inc. (“Apple”) App Store, Android Marketplace or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms are between you and us only, and not with the Distribution Channel. To the extent that you use any other third-party products and services in connection with your use of our Yardzen Services, you agree to comply with all applicable terms of any agreement for such third-party products and services.

If the Software is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:

• Both you and Yardzen acknowledge that these Terms are between you and Yardzen only, and not with Apple, and that as between Yardzen and Apple, Yardzen, not Apple, is solely responsible for the Apple-Enabled Software and its content.
• You may not use the Apple-Enabled Software in any manner that is in violation of, inconsistent, or otherwise in conflict with our Yardzen Services and Content Usage Rules (“Usage Rules”) set forth for Apple-Enabled Software in the Apple Media Services Terms and Conditions.
• Any license we may give you to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
• Apple is not responsible for any product warranties, whether expressed or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Yardzen’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
• Both you and Yardzen acknowledge that Yardzen, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
• In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Yardzen and Apple, Yardzen, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Yardzen as follows: [email protected]
• Both you and Yardzen acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third-party beneficiary.

By installing the Yardzen App, you consent to the installation of the Yardzen App and any updates or upgrades that are released by Yardzen the applicable Distribution Channel. The Yardzen App (including any updates or upgrades) may (i) cause your device to automatically communicate with Yardzen’s servers to deliver the Yardzen App functionality and to record usage metrics, (ii) affect Yardzen App-related preferences or data stored on your device, and (iii) collect personal information as set out in our Privacy Policy. You can uninstall the Yardzen App(s) at any time.

14. Yardzen Refer-A-Friend Program

Those Clients that choose to participate in the “Refer-A-Friend Program” agree to the terms set out in this Section 14.  The Refer-A-Friend program is provided by Yardzen and is offered in our sole discretion.

14.1. Qualified Referral

A qualified referral is defined as a purchase made at our Website by a person (“Referred Customer”) who arrives at our Website by clicking the Client’s Refer-A-Friend Program link.

14.2. Referred Customer

The Referred Customer and the Client cannot be the same person (e.g. same person using different email addresses).

14.3. Referral Rewards

For you to earn referral rewards as a Client, the Referred Customer must complete an order on our Website with a minimum purchase of $695, and not request a refund.

14.4. Rewards Payments

Rewards are payable as $50 and $75 gift cards. As a referring Client, you are responsible for determining any tax liability arising from your participation in the Refer-A-Friend Program.  Consult your tax advisor accordingly.

14.5. Eligibility

Eligibility is limited to individual Clients only.

14.7. No Spam

You must comply with all up-to-date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your referral link that could constitute unsolicited commercial email or “spam” under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your Yardzen Account and exclusion from the Refer-a-Friend Program. 

1.4.7. Right to Cancel Refer-A-Friend Program or Change Terms.

Yardzen reserves the right to cancel the Refer-a-Friend Program or to change the terms set out in this Section 14 at any time in its sole discretion. Any unclaimed Referral Rewards will be forfeited at that time.

15. Estimate Match Guarantee Program

Those Clients that choose to participate in the “Estimate Match Guarantee Program” agree to the terms set out in this Section 15.  The Estimate Match Guarantee Program is provided by Yardzen and is offered in our sole discretion.

15.1. Eligibility

Clients who receive a minimum of three (3) estimates for Professional Services from Professionals through the Yardzen Platform (“Project Estimates”) are eligible for the Estimate Match Guarantee Program.  

15.2. Qualified Estimate

A “Qualified Estimate” is a written estimate from a licensed and insured professional outside of Yardzen’s network of Professionals that clearly outlines the scope, work, materials, and associated costs comparable to those set out in the Project Estimates.  A Client may submit one (1) Qualified Estimate per project (that is, a Client may submit only one Project Bid for one Professional Service).

15.3. Qualified Estimate Submission

The Qualified Estimate must be submitted to Yardzen’s customer support team via email at [email protected] within thirty (30) days of the Client having received the Qualified Estimate.  Any Qualified Estimates submitted to Yardzen after thirty (30) days of the Client having received the Qualified Estimate are ineligible for the Estimate Match Guarantee Program.

15.4. Qualified Estimate Review Process and Payments

Yardzen will review the Qualified Estimate to determine whether or not it addresses the same scope, work, materials and associated costs as the project proposed on the Yardzen Platform.

If Yardzen determines in its sole discretion that the Qualified Estimate matches the proposed project’s scope, work, materials, and associated costs, Yardzen will reach out to Professionals to see if such Professionals are willing to match the Qualified Estimate.

If no Professional is willing or able to match the Qualified Estimate, Yardzen agrees to pay the Client $500 (“Estimate Match Guarantee Payment”).  The Estimate Match Guarantee Payment will be made by deposit to a valid Client bank account within fourteen (14) days of Yardzen’s confirmation of the Client’s eligibility for the Estimate Match Guarantee Program and receipt of the Client’s bank routing and account number.

The Client shall not be entitled to the Estimate Price Match Guarantee Payment, if:

• The estimate submitted does not meet the requirements of a Qualified Estimate pursuant to Section 15.2;
• The Client fails to submit the Qualified Estimate within thirty (30) days as required pursuant to Section 15.3; or
• Yardzen in its sole discretion determines that the Qualified Estimate does not match the proposed project’s scope, work, materials, and associated costs.

If the Client is not entitled to the Estimate Match Guarantee Payment, Yardzen will notify the Client as to the basis for their denial of the Client’s entitlement to the Estimate Match Guarantee Payment.

15.5. Right to Cancel Estimate Match Guarantee Program or Change Terms

Yardzen reserves the right to cancel the Estimate Match Guarantee Program or to change the terms set out in this Section 15 at any time in its sole discretion.  Any unclaimed Estimate Match Guarantee Payment will be forfeited at that time.

16. Design Partner Programs

Yardzen may develop unique Design Packages (“Unique Design Package”) for merchants with which it partners (“Merchant Partners”) in order to provide Clients the ability, but not the obligation, to purchase design elements (e.g., furniture or plants) for the Unique Design Package from the Merchant Partner associated with the Unique Design Package (“Design Partner Program”).

Those Clients that choose to participate in the Design Partner Program agree to the terms set out in this Section 16.  The Design Partner Program is provided by Yardzen and is offered in our sole discretion.

16.1. Eligibility

In order to purchase a Merchant Partner’s associated Unique Design Package through the Design Partner Program, the Client must be a member of that Merchant Partner’s loyalty program (or comparable program).

16.2. Design Partner Program Disclaimer

As part of the Design Partner Program, Yardzen’s Website contains information about and links to products that may be, but are not required to be, purchased from Merchant Partners or another third party (collectively with Merchant Partners, “Third Party Merchants”). Such information, links and products are provided for your convenience only and do not constitute an endorsement by Yardzen of those products. Furthermore, Yardzen makes no representations or warranties about the content, accuracy or suitability for any purpose of any of the information provided by any Third-Party Merchants for such products via these links. When you click on a link, you will be taken to a Third-Party Merchant’s website which is not controlled or managed by Yardzen. When you click on a link to a Third-Party Merchant’s website, you are subject to the terms of use, privacy policies, and other policies of that website. We encourage you to review these policies before engaging with any Third-Party Merchant’s website or making a purchase. By using our Website and interacting with the links to Third-Party Merchant websites and products, you acknowledge and agree to the terms outlined in this disclosure. If you have any questions or concerns regarding our linking practices or relationships with Third-Party Merchants, please don’t hesitate to contact us.

16.3. Right to Cancel Design Package Program or Change Terms.

Yardzen reserves the right to cancel the Design Package Program or to change the terms set out in this Section 16 at any time in its sole discretion.

17. YardAI Landscape Generator

17.1 General

As part of the Yardzen Service, Yardzen makes available its artificial intelligence tool (“YardAI”).  YardAI generates images based on Visitor Content (as defined herein below) and User Content containing design elements and styles (“YardAI Landscapes”) for Visitors and Users (“YardAI Landscape Generator”).

17.2 Access to YardAI Landscape Generator

In order to access the YardAI Landscape Generator, a Visitor will need to provide Yardzen with their email address.  Users will have access to the YardAI Landscape Generator through their Yardzen Account.

17.3. YardAI Landscapes; Homeowner Photos

The YardAI Landscape Generator will use the photographs Posted (as defined below) by Visitors and Uploaded by Users of their home or yard (“Homeowner Photos”) to generate the YardAI Landscapes.

17.4. Visitors

Visitors are solely responsible for all Homeowners’ Photos (“Visitor Content”) that you upload (“Post”) to the YardAI Landscape Generator.

With respect to the Visitor Content you Post through the YardAI Landscape Generator, you represent and warrant that you own all right, title, and interest in and to such Visitor Content, including all copyrights and rights of publicity.

In addition to any other licenses granted to Yardzen by these Terms, by Posting any Visitor Content you grant us and our affiliates a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your Visitor Content and the YardAI Landscapes generated from your Visitor Content solely in connection with the operation of the Yardzen Services in any form, medium, or technology now known or later developed.

17.5. Users

For Users, the Homeowner Photos that you Upload are User Content are governed by Section 20.2 of these Terms.

17.6. Limited License Grant to Yardzen

If you Post Visitor Content or Upload User Content to the YardAI Landscape Generator, you hereby grant Yardzen the right to use the data, content, and information derived from the Visitor Content or User Content to improve the YardAI Landscape Generator, including to train our algorithms through machine learning and for what is commonly referred to as “generative artificial intelligence” purposes. You agree that Yardzen may aggregate your data with the data of other Yardzen Visitors and Users for such purposes. You agree that we may also use your YardAI Landscapes to provide, maintain, develop, protect and improve the YardAI Landscape Generator or our other Services.

17.7. Limited License Granted to Visitors and Users

Subject to your compliance with these Terms, Yardzen hereby grants you a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use the YardAI Landscapes generated from your Homeowner Photos.

The YardAI Landscape Generator may provide the same or similar YardAI Landscapes to other Visitors and Users, and Yardzen’s assignment to you in the preceding sentence does not apply to the YardAI Landscapes resulting from other Visitor’s and Users’ use of the YardAI Landscape Generator. 

17.8. Right to Remove the YardAI Landscape Generator or Change Terms.

Yardzen reserves the right to remove the YardAI Landscape Generator from the Yardzen Service or to change the terms set out in this Section 17 at any time in its sole discretion.

18. Yardzen Account Deactivation and Suspension

You agree that we, in our sole discretion, may suspend, restrict access to, or terminate your Yardzen Account or use of the Yardzen Services, including but not limited to canceling or suspending certain transactions, removing and discarding any User Content within the Yardzen Platform, for any reason, including for poor User Reviews, if a Professional, or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Yardzen Services may be referred to appropriate law enforcement authorities. You agree that any termination of your access to the Yardzen Services under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your Yardzen Account and all related information and files in your Yardzen Account and/or bar any further access to such files or the Yardzen Services, subject to applicable law. Further, you agree that we will not be liable to you or any third party for any termination of your access to the Yardzen Services.

You agree that Yardzen is under no obligation to notify you of another User’s Yardzen Account being suspended or deactivated.  Should a Professional’s Yardzen Account be suspended or deactivated, Yardzen’s will no longer facilitate any of the Professional Services provided by that Professional after their suspension or deactivation.

If Yardzen suspends or deactivates your Yardzen Account or limits your use of the Yardzen Platform pursuant to this Section 18, you are thereafter prohibited from registering and creating a new Yardzen Account under your name or business name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. 

You may terminate these Terms at any time by ceasing all use of the Yardzen Platform and deactivating your Yardzen Account.

Upon any termination of the Yardzen Services or cancellation of your Yardzen Account, the following sections shall survive: 20.1 (Yardzen Services Content; Software; Trademarks; Confidential Information), 20.2 (User Content; Reviews), 21 (Disclaimer of Warranties), 22 (Limitation on Liability), 23 (Indemnification; Release), 24 (Dispute Resolution by Binding Arbitration; Class Action Waiver), and 25.2 (Governing Law; Venue).

19. Telephone Communications; Consent to Automated Messages, Agreement to Update Contact Information

You agree to be contacted by us, our agents, representatives, affiliates, the Professionals or anyone calling on our behalf for any purpose or for purposes of providing the Yardzen Services or the Professional Services (“Contacts”), at any telephone number or physical or electronic address you provide or at which you may be reached. You represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number, including a mobile telephone number.

You agree to receive Short Message Service (SMS) communications (including text messages), calls, and messages (including pre-recorded, artificial voice, and autodialed or automatically texted) from Contacts at the specific numbers you have provided to us, or numbers we can reasonably associate with you (through skip trace, caller ID capture, or other means), for any purpose or for purposes of providing the Yardzen Services or the Professional Services. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that a Contact calls, the individual may also leave a message on your answering machine or voicemail or send a message by text. Calls may be may be monitored and recorded for the purposes of quality control and training.

You understand that such SMS communications may be placed using an automatic telephone dialing system or may include automated SMS messages. Your consent is required to allow Contacts to contact you and to use the Yardzen Services or the Professional Services. As always, you agree that you are responsible for any message, data rates or fees that your telephone service provider charges in relation to SMS messages sent and received by you. If you have any questions regarding those rates, please contact your wireless carrier.

You also agree to receive alerts concerning for any purpose or for purposes of providing the Yardzen Services or the Professional Services through push notifications to your smartphone or other device. Receipt of push notifications may be delayed or prevented by factors beyond our control, including those affecting your internet/phone provider. We are not liable for losses or damages arising from non-delivery, delayed delivery, or the erroneous delivery of any push notification; inaccurate push notification content; or your use or reliance on the content of any push notification for any purposes. Each push notification may not be encrypted, and may include your name and information pertaining to your Yardzen Account or use of the Yardzen Platform. We may terminate your use of push notifications at any time without notice. You may choose to discontinue receiving push notifications by updating your preferences on your smartphone or device. You acknowledge and agree that standard call, message, and data rates charged by your carrier apply to all communications by or with us.

If you change or deactivate your mobile number, e-mail address, mailing address, or any other contact information you have provided, you agree to promptly update your contact information.

To unsubscribe from text messages at any time, reply STOP to any text message you receive from us. If you unsubscribe, we may restrict or terminate your access to the Yardzen Services. You consent that following such a request to unsubscribe, you may receive one final text message from us confirming your request and/or providing an alternative to access the Yardzen Services.

20. Intellectual Property Rights

20.1. Yardzen Services Content, Software, Trademarks, Confidential Information

You acknowledge and agree that the Yardzen Services may contain content or features (“Yardzen Services Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Yardzen Services or the Yardzen Services Content, in whole or in part, except that the foregoing does not apply to your own Posted Visitor Content or Uploaded User Content that you legally Posted or Upload (as defined below) to the Yardzen Services. In connection with your use of the Yardzen Services you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by us from accessing the Yardzen Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (for example, by masking your IP address or using a proxy IP address). Any use of the Yardzen Services or the Yardzen Services Content other than as specifically authorized in these Terms is strictly prohibited. The technology and software underlying the Yardzen Services or distributed in connection with the Yardzen Services are the property of Yardzen (“Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted in these Terms are reserved by us.

The Yardzen name and logos are our trademarks and service marks (collectively, “Yardzen Trademarks”). Other product and service names and logos used and displayed via the Yardzen Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in these Terms, any Additional Terms or the Yardzen Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Yardzen Trademarks displayed on the Yardzen Services, without our prior written permission in each instance. All goodwill generated from the use of the Yardzen Trademarks will inure to our exclusive benefit.

The term “Confidential Information”  shall mean any and all of Yardzen’s trade secrets, confidential and proprietary information, and all other information and data of Yardzen that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary materials and confidential information relating to Yardzen or Yardzen’s business, operations or properties, including information about Yardzen’s staff, Visitors, Users or Partners, or other business information disclosed or obtained directly or indirectly in writing, orally or by drawings or observation.

You acknowledge that Confidential Information is a valuable, special and unique asset of Yardzen and agree that you will not, for the lifetime of your Yardzen Account on Yardzen plus 10 years thereafter, disclose, transfer, or use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than use of the Yardzen Platform in accordance with these Terms. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall promptly notify Yardzen in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall return all originals and any copies of any and all materials containing Confidential Information to Yardzen promptly upon deactivation of your Yardzen Account or termination of these Terms for any reason whatsoever.

20.2. User Content; Reviews

You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, or other materials (“User Content”) that you upload, submit, post, publish, or display in the User Areas (collectively “Upload”), email, or otherwise use via the Yardzen Services.

You are solely responsible for User Content, and we act merely as a passive conduit for your online distribution and publication of your User Content. You acknowledge and agree that Yardzen is not involved in the creation, development of User Content, disclaims any responsibility for User Content, and cannot be liable for claims arising out of or relating to User Content. Further, you acknowledge and agree that Yardzen has no obligation to monitor or review User Content, but reserves the right to limit or remove User Content if it is not compliant with these Terms.

With respect to the User Content or other materials you Upload through the Yardzen Services, you represent and warrant that you own all right, title, and interest in and to such User Content, including all copyrights and rights of publicity. By Uploading any User Content you grant us and our affiliates a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content solely in connection with the operation of the Yardzen Services in any form, medium, or technology now known or later developed. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about the Yardzen Services, submitted by you to us are non-confidential, and we will be entitled to the unrestricted use and dissemination of these submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You understand that the technical processing and transmission of the Yardzen Services, including your User Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.

The Yardzen Platform hosts User Content relating to Clients’ reviews and ratings of Professionals (“User Reviews”). User Reviews are such Client’s opinion and not the opinion of Yardzen, and have not been verified or approved by Yardzen. You agree that Yardzen is not responsible or liable for any User Review or other User Content. Yardzen encourages each Client to give an objective, constructive and honest User Review about the Professionals with whom they have transacted. Yardzen is not obligated to investigate any remarks posted by Clients for accuracy or reliability or to consider any statements or materials posted or submitted by Clients in any User Review but may do so at its discretion. Each Professional agrees that User Reviews enable Clients to post and other Clients to read about a Client’s expression of their experiences and that you and you will not complain or take any action merely because you happen to disagree with such User Review. A Professional may request removal of a review that violates these Terms by contacting Yardzen at [email protected]. Each Client should undertake their own research prior to booking Professional to be satisfied that a specific Professional has the right qualifications for the desired Professional Service to be performed.

Yardzen respects the personal and other rights of others, and expects Users to do the same. Yardzen is entitled to identify a User to other Users or to third parties who claim that their rights have been infringed by User Content submitted by that User, so that they may attempt to resolve the claim directly.

If a User believes, in good faith, that any User Content provided on or in connection with the Yardzen Platform is objectionable or infringes any of its rights or the rights of others (e.g. counterfeiting, insult, invasion of privacy), the User is encouraged to notify Yardzen. If a User discovers that User Content promotes crimes against humanity, incites hatred and/or violence, or concerns child pornography, the User must notify Yardzen. Such notification can be made at Yardzen, Inc., Suite 130, 480 Gate 4 Rd., Sausalito, CA 94965.

20.3. Links to Third-Party Websites

The Yardzen Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Yardzen or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Yardzen Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Yardzen does not control any such websites, and is not responsible for their availability, accuracy, content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Yardzen is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Yardzen has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Yardzen Platform at its sole discretion.

The use of any website controlled, owned or operated by a third party is governed by the terms and conditions of use and privacy policy for that website. You access such third-party websites at your own risk. Yardzen expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Yardzen Platform. You hereby agree to hold Yardzen harmless from any liability that may result from the use of links that may appear on the Yardzen Platform.

20.4. Copyright Complaints

Yardzen respects the intellectual property of others and expects Visitors and Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Yardzen Platform infringe upon your copyright or other intellectual property right, please send the following information to Yardzen, Inc., Suite 130, 480 Gate 4 Rd., Sausalito, CA 94965:

• A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Yardzen Platform where the material you claim is infringed is visible. Include enough information to allow Yardzen to locate the material, and explain why you think an infringement has taken place;

• A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
• Your name, address, telephone number, and e-mail address;
• A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
• Your electronic or physical signature as the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

21. Disclaimer of Warranties

THE TECHNOLOGY OF THE YARDZEN PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICES, AND NON-INFRINGEMENT. YARDZEN MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE YARDZEN PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE YARDZEN PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE YARDZEN PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL.

Without limiting the foregoing, Yardzen does not warrant that access to the Yardzen Platform will be uninterrupted or that the Yardzen Platform will be error-free; nor do they make any warranty as to the results that may be obtained from the use of the Yardzen Platform, or as to the timeliness, accuracy, reliability, completeness or content of any Professional Service, information or materials provided through or in connection with the use of the Yardzen Platform. Yardzen is not responsible for the conduct, whether online or offline, of any Visitor or User. Yardzen does not warrant that the Yardzen Platform is free from computer viruses, system failures, worms, trojan horses, or other harmful components or malfunctions, including during hyperlink to or from third-party websites. Yardzen will implement appropriate technical and organizational measures to ensure a level of security adapted to the risk for any personal information supplied by you.

Yardzen does not provide any warranties or guarantees regarding any Professional’s ability, professional accreditation, registration or licensure.

22. Limitation on Liability

You acknowledge and agree that Yardzen is only willing to provide the Yardzen Platform if you agree to certain limitations of our liability to you and third parties. Therefore, you agree not to hold Yardzen, or its corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys’ fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to your or any other party’s use of or inability to use the Yardzen Platform, including without limitation any Liabilities arising in connection with the conduct, act or omission of any Visitor or User (including without limitation stalking, harassment that is sexual or otherwise, acts of physical violence, and destruction of personal property), any dispute with any Visitor or User, any instruction, advice, act, or service provided by Yardzen, and any destruction of your Visitor Content or User Content.

UNDER NO CIRCUMSTANCES WILL YARDZEN BE LIABLE FOR, AND YOU HEREBY RELEASE YARDZEN FROM  ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY YARDZEN, THE COST OF SUBSTITUTE PRODUCTS OR PROFESSIONAL SERVICES, OR ATTORNEYS’ FEES AND COSTS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE YARDZEN PLATFORM OR THE PROFESSIONAL SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. Some jurisdictions do not allow the exclusion of certain warranties or limitation of incidental or consequential damages; in such cases the above limitations may not apply to you in their entirety.

YARDZEN EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN VISITORS OR USERS OF ITS YARDZEN PLATFORM. YARDZEN ALSO DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE YARDZEN PLATFORM.

IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT YARDZEN IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO YARDZEN (IF YOU ARE A CLIENT) OR TOTAL PROFESSIONAL SERVICES PAYMENTS PAID TO YOU BY CLIENTS (IF YOU ARE A PROFESSIONAL), DURING THE 6 MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.

23. Indemnification; Release

You hereby agree to release, indemnify, defend, and hold harmless Yardzen and its members, managers, officers, directors, employees, consultants and/or contractors (“Indemnitees”) from and against any and all Liabilities incurred in connection with (i) your use or inability to use, or your participation on, the Yardzen Platform; (ii) your participation in Professional Services, or your ability or inability to perform or obtain the performance of Professional Services or to receive payment therefore; (iii) your breach or violation of these Terms; (iv) your violation of any law, or the rights of any Visitor or User or third party; (v) your failure to abide by your representations and warranties in Section 8; (vi) any Visitor Content or User Content submitted by you or a User using your Yardzen Account to access the Yardzen Platform, including but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful; and (vii) if you are a Client, the acts or omissions of any Client’s Agents. Yardzen reserves the right, in its own sole discretion, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of Yardzen.

If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

24. Dispute Resolution by Binding Arbitration; Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY — IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND YARDZEN CAN BRING CLAIMS COVERED BY THIS ARBITRATION AGREEMENT. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND YARDZEN TO SUBMIT CLAIMS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.

BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS SECTION AS PROVIDED IN SECTION 24.3 BELOW.

24.1. Election to Arbitrate; No Jury Trial

This Section 24.1 is referred to in these Terms as the “Arbitration Provision”. You and Yardzen mutually agree that any and all disputes and claims (collectively, “Claims”) that have arisen or may arise between us, whether arising out of or relating to these Terms (including any alleged breach), our Yardzen Services, any advertising, and aspect of the relationship, or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Provision, except that you may assert individual claims in small claims court, if your claim qualifies, or any Claim, that by the terms of this Arbitration Provision, are expressly excluded from the requirement to arbitrate. 

You agree that, by entering into these Terms, you and Yardzen are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not by a judge or jury.

24.2. Applicability of Federal Arbitration Act; Arbitrator’s Powers

This Arbitration Provision is governed by the Federal Arbitration Act (“FAA”) and survives the termination of this Agreement and your relationship with Yardzen.

The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.

If there is a dispute about the arbitrability of any claim (including about the formation, scope, applicability, interpretation, validity, and enforceability of this Arbitration Provision), you and Yardzen agree that this threshold dispute shall be resolved by the arbitrator, except as expressly provided below.

24.3. Opt-Out of Arbitration Provision

You may opt-out of this Arbitration Provision for all purposes by sending an arbitration opt-out notice to [email protected] within 60 days of the date of your electronic acceptance of these Terms. The opt-out notice must clearly state that you are rejecting arbitration; identify these Terms to which it applies by date; provide your name and address; and be signed by you. You may send an opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt-out of this Arbitration Provision. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt-out notice on your behalf.

24.4. Class Action Waiver

YOU AND YARDZEN 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 (“CLASS ACTION WAIVER”). UNLESS BOTH YOU AND YARDZEN 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 CLAIMS.

Notwithstanding the foregoing, this Class Action Waiver shall not apply to California Private Attorney General Act Claims, which are addressed separately below.

Notwithstanding any other provision of these Terms, the Arbitration Provision or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (i) the Claim is filed as a class, collective, or representative action and (ii) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining Claims and may remain in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.

24.5. California Private Attorneys General Act

Notwithstanding any other provision of these Terms, the Arbitration Provision or the AAA Rules, to the fullest extent allowed by law: (1) you and Yardzen agree not to bring a representative action on behalf of others under the California Private Attorneys General Act ( “PAGA” ), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under PAGA, both you and Yardzen agree that any such Claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver” ).

Notwithstanding any other provision of these Terms, the Arbitration Provision or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability, or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from these Terms; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Provision; and (iii) any such representative PAGA or other representative private attorneys general act Claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the parties agree that court litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.

24.6. Pre-Arbitration Dispute Resolution; Required Notice to Yardzen

Yardzen is always interested in resolving disputes amicably and efficiently, and most Visitor or User concerns can be resolved quickly and to the Visitor’s or User’s satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice to Yardzen should be sent [email protected] (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought. If you and Yardzen do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Yardzen may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Yardzen or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you are or Yardzen is entitled.

24.7. Arbitration Procedure

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Provision. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Provision, the terms of this Arbitration Provision will control unless the arbitrator determines that the application of the inconsistent Arbitration Provision terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Provision. 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 these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Yardzen and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of each’s ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Yardzen agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

24.8. Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Provision. If the value of the relief sought is $75,000 or less, at your request, Yardzen will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to 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, Yardzen 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, Yardzen will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

24.9. Exceptions to Arbitration

The Arbitration Provision shall not require arbitration of the following types of claims:

• Claims for workers’ compensation, disability insurance and unemployment insurance benefits;
• Applications for provisional remedies, preliminary injunctions, and temporary restraining orders relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights;
• Representative action brought on behalf of others under PAGA or other private attorney general acts, to the extent the Representative PAGA Waiver in Section 24.5 is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; and
• Claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.

Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or a similar local, state or federal agency, and nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. These Terms and Arbitration Provision do not prevent you from participating in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision and do not prevent you from receiving an award for information provided to any government agencies.

24.10. Confidentiality

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.

24.11. Survival and Severability of Arbitration Provision

This Arbitration Provision shall survive the termination of these Terms.

If a court or the arbitrator decides that any term or section of this Provision (other than Section 24.4) 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 Provision will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 24.4 are invalid or unenforceable, then the entirety of this Arbitration Provision will be null and void, unless such sections are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.

24.12. Future Changes to Arbitration Agreement

Notwithstanding any provision in these Terms to the contrary, Yardzen agrees that if it makes any future change to this Arbitration Provision (other than a change to the Notice Address) while you are a Visitor or User of the Yardzen Services, you may reject any such change by sending Yardzen written notice within 30 calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Provision as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

25. General Terms

25.1. Entire Agreement

These Terms and any Additional Terms constitute the entire agreement between you and us and govern your use of the Yardzen Services, superseding any prior agreements between you and us with respect to the Yardzen Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content, or third-party software.

25.2. Governing Law; Venue

These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth below, you and we agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California or the Northern District of California, as applicable.

25.3. Assignment; Waiver

These Terms are specific to the relationship between you and Yardzen. You may not assign these Terms without our prior written consent, but we may assign or transfer these Terms, in whole or in part, without restriction.

Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If we decide to make a special exception and waive your obligation to follow any part of these Terms, we will notify you in writing.

25.4. Section Headings

Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

25.5. Notices

Any written notice you give us is effective when we actually receive it, and it must be given to us according to the specific delivery instructions provided, if any. If no delivery instruction is provided, notice must be given by emailing us at [email protected]. We must receive it in time to have a reasonable opportunity to act on it. Written notice we give you is effective when it is deposited in the U.S. mail with proper postage and addressed to your mailing address associated with your Yardzen Account or emailed to you at the email address we have on file for you. 

The Yardzen Services may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Yardzen Services.

25.6. Contact Us

You may contact us by email at [email protected] or by calling us at 888-927-3936.