Thank you for conducting content development projects on Hotspring’s web-based platform. This Services Agreement (this “Agreement”) describes the terms and conditions on which you conduct online content development projects by using the site Platform, mobile (“Hotspring Projects” or “Projects”), mobile applications and other online transaction portals owned, operated, branded or made available by Hotspring (defined below) from time to time which relate to the Hotspring platform, including but not limited to: (a) the web and mobile-optimized versions of the websites identified by the uniform resource locator “www.thehotspring.com”; and (b) the mobile applications of the Hotspring content platform (the “Hotspring Platform”). This Agreement contains various limitations on Hotspring’s services offered through the Hotspring Platform as well as gives various powers and authority to Hotspring with respect to online projects conducted using Hotspring’s services offered through the Hotspring Platform. You should read this Agreement and, to the extent as applicable, the relevant Project Terms (defined in Section 1 below), and other rules and policies of Hotspring carefully, which are hereby incorporated into this Agreement by reference.
1. Application and Acceptance of Terms
1.1 Contracting Party. This Agreement is entered into between you (also referred to as “Member” hereinafter) and Hotspring (“Hotspring” or “we”) for use of Hotspring’s certain content project management services offered through the Hotspring Platform as described hereunder.
1.2 Hotspring Platform and Services. As further described in section 2, Hotspring provides an online platform and advertising services on the Hotspring Platform (such platform and services, the “Hotspring Services” or “Services”) which allow registered members of the Hotspring Platform to advertise, bid for and conduct projects online for content within the Hotspring Platform subject to the terms of this Agreement. Hotspring may update rules governing its Services from time to time.
2. Hotspring Services Description
2.1 Hotspring Services. Hotspring’s Services are designed to facilitate registered members of the Hotspring Platform to advertise their services and enable Clients and Vendors to bid, place, accept, manage and complete projects for the design and delivery of content and related project management services online within the Hotspring Platform (“Hotspring Projects”), As more fully set forth in Section 3 below, when a Client engages a Vendor they will enter a Vendor Services Agreement governing the terms of the specified Hotspring Project, which will be provided by Hotsprings (“Vendor Services Agreement”). Hotspring will not manage that contractual process or those substantive terms other than those that are specified as non-negotiable as stated herein, within the Hotspring Platform or in the Vendor Services Agreement.
2.2 Hotspring reserves the right to change, upgrade, modify, limit or suspend Hotspring Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice without any liability for any losses or damages arising out of or in connection with such suspension or termination. Hotspring further reserves the right but shall not be obliged to introduce new features, functionalities or applications to the Hotspring Services or to future versions of such Services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by Hotspring.
2.3 Members Only. Hotspring’s Services are only available to registered members of the Hotspring Platform. If your subscription to the paid or free membership of the Hotspring Platform expires or is terminated early for any reason, you are not eligible to use the Hotspring Services. In the event that you have a valid project under this Agreement at the point at which your paid or free membership registration on the Hotspring Platform is terminated, Hotspring shall have the full discretion and authority to refund to Client and/or release to Vendor (both Client and Vendor as defined below) all or part of the funds under the Hotpsring Project as Hotspring considers appropriate in its sole discretion. If you are a Vendor, you are required to provide validation details subject to verification and confirmation by Hotspring and our affiliates.
2.4 Types of Transactions. Hotspring’s Services are available to those types of Hotspring Projects permitted by Hotspring only. For any type of Hotspring Project, Hotspring may limit any or all of the Services to a specified group of members in accordance with the relevant project terms. The types of Hotspring Projects and other benefits, features and functions of the Hotspring Services available to a registered member may vary for different countries and regions. No warranty or representation is given that the same type and extent of transactions, benefits, features and functions will be available to all members. Once you have commenced a Hotspring Project on Hotspring’s Platform, you must complete that project, including any amendments to it, on the Hotspring Platform.
2.5 Lawful Items. The content or services of a Hotspring Project using the Hotspring Services must be lawful items and must not be otherwise prohibited or restricted by this clause 2.4. You shall not use the Hotspring Services in connection with any project that:
(a) may infringe Hotspring’s or any third party’s proprietary rights including but not limited to copyright, trademark right, patent or other intellectual property rights; or
Hotspring shall have the right to refuse or cancel any project which it determines in its sole discretion to be in breach of this clause 2.4.
2.6 Refuse or Cancel Transactions. Apart from clause 2.4, Hotspring reserves the right, at our sole discretion, to refuse or cancel any Online Project for any reason without any liability for any losses or damages arising out of or in connection with such refusal or cancellation. Some situations that may result in an Online Project being rejected or canceled include where Hotspring has reason to believe the Online Project is unauthorized, violates any law, rule or regulations or may otherwise subject Hotspring or any of our affiliates to liability. Hotspring may also require additional verifications or information for any Online Project, and you agree to provide such verifications and information to Hotspring upon request.
2.7 Project Terms. For any type of Online Projects, Hotspring may impose additional restrictions, limitations and prohibitions as well as penalties for any violations in the relevant Project Terms.
2.8 Powers of Hotspring. You expressly acknowledge and agree that Hotspring shall have the full power, authority and discretion to reject or cancel a project without any liability for any losses or damages arising out of or in connection with such refusal or cancellation and to make a determination on any dispute between Client and Vendor. You also acknowledge that this Agreement and the relevant Vendor Services Terms may not cover all issues that may arise in connection with a Hotspring Project. You agree and accept that Hotspring shall have the right to modify or supplement the Vendor Services Agreement at any time. You further agree and accept that Hotspring shall have the right to make determinations wherever Hotspring considers appropriate having regard to the evidence received by us, commonly accepted principles and practices in the relevant industries and interests of both Vendor and Client regardless whether the issue in question has been expressly addressed in the Vendor Services Agreement or this Agreement.
2.9 Hotspring’s Records. In case of any dispute in connection with any Project, the records of Hotspring shall take precedence and be conclusive.
2.10 Posted Information. Registered members may post information, including personal information, on the Hotspring Platform regarding their past work experience, prior projects and other information to advertise their services to Clients. Hotspring reserves the right to review all submissions and media to the Hotspring Platform and to remove any information, communications or media for any reason, at any time, without prior notice, at our sole discretion and without any recompense to the submitter or poster.
By accessing and using the Hotspring Platform, registered members agree that the following actions shall constitute a material breach of this Service Agreement:
(a) Using the Hotspring Platform for any purpose in violation of local, state, national, or international laws;
(b) Posting material that infringes on the intellectual property rights of others or on the privacy or publicity rights of others;
(c) Posting material that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by Hotspring in its sole discretion;
(d) Posting chain letters or pyramid schemes;
(e) Impersonating another person;
(f) Distributing viruses or other harmful computer code;
(g) Harvesting, scraping or otherwise collecting information about others, including email addresses, without their identification for posting or viewing comments;
(h) Allowing any other person or entity to use your identification for posting or viewing comments;
(i) Posting the same note more than once or “spamming”; or
(j) Engaging in any other conduct that restricts or inhibits any other person from using or enjoying the Hotspring Platform, or which, in the judgment of Hotspring, exposes Hotspring or any of its customers or suppliers or vendors to any liability or detriment of any type.
Hotspring reserves the right (but is not obligated) to do any or all of the following:
(a) Record posted information or communication(s) on the Hotspring Platform;
(b) Investigate an allegation that posted information or a communication(s) does not conform to the terms and conditions of this section and determine in its sole discretion to remove or request the removal of the posted information or communication(s).
(c) Remove posted information or communication(s) which are abusive, illegal, or disruptive, or that otherwise fail to conform with these terms and conditions.
(d) Terminate a registered member’s access to any or all portions of the Hotspring Platform upon any breach of these terms and conditions;
(e) Monitor, edit, or disclose any posted information or communication on the Hotspring Platform; or
(f) Edit or delete any communication(s) posted on the Hotspring Platform regardless of whether such communication(s) violate these standards.
By uploading any media on the Hotspring Platform like a photo or video, (a) you grant to Hotspring a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in the media; (b) you certify that any person pictured in the submitted media (or, if a minor, his/her parent/legal guardian) authorizes Hotspring to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in such media; and (c) you agree to indemnify Hotspring and its affiliates, directors, officers and employees and hold them harmless from any and all claims and expenses, including attorneys’ fees, arising from the media and/or your failure to comply with these the terms described in this document.
3. Transactions between Vendors and Clients
3.1 Vendor and Client. For the purpose of this Agreement, the term “Vendor” means the registered member who designs and provides the content or service(s) under a Hotspring Project, and the term “Client” means the registered member who purchases or acquires the content or service(s) under a Hotspring Project.
3.2 Vendor Engagement.
A. Vendor and Client shall begin a Hotspring Project for products or services by completing, submitting and accepting an order online using the Vendor Services Agreement on the Hotspring Platform. Vendor and Client yourselves shall be responsible for ensuring that you have agreed to, and specified, all the relevant terms and conditions for the products or services in the relevant Vendor Services Agreement, including but not limited to the pricing specifications, quality standards, review, etc. Hotspring may refuse to process or cancel, without liability for any losses or damages arising out of or in connection with such refusal or cancellation, any Hotspring Project which in Hotspring’s reasonable opinion, has insufficient information to constitute a binding contract.
B. Even though Hotspring makes available the Project Services and, if applicable, may conduct formality review(s) of a Hotspring Project, Hotspring shall not be considered as a party to the Vendor Services Agreement. Hotspring does not represent the Vendor nor the Client in any Hotspring Project. Hotspring will not be responsible for collecting payments from or on behalf of a party, or for the quality, lawfulness or availability of the content or services offered under any Project, or the ability of either Vendor or Client to complete any Project. You agree that you will not hold Hotspring and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from any Projects, including any breach, including payment breaches or disputes, partial performance or non-performance of the Project by the other party to the transaction.
3.3 Your Agent. If you are required to conclude and complete an Online Project through an agent e.g. a Vendor may be required to engage a qualified import and export agent as its export agent, such agent is merely an agent of you. If any obligations are required to be performed by the agent, you shall remain solely liable to the other party of the Online Project for the non-performance or default by your agent.
4. Hotspring Service Fees
4.1 Service Fees. Hotspring charges service fees for Projects according to the fee schedules announced by Hotspring on the Hotspring Platform. Hotspring reserves the right to charge any service fees for other types of Projects upon prior notification published on the Hotspring Platform. Hotspring has no control over, and is not responsible or liable for, the products or services that are paid for with our service. We cannot ensure that a vendor or a client you are dealing with will actually complete the project.
4.2 Third Party Fees Not Included. The service fees charged by Hotspring do not include any fees (including all taxes) for any service or product that you may acquire or purchase in connection with the Project. It shall be your responsibility to settle the fees with such third party vendors.
4.3 Taxes, Financial Charges Not Included. All fees charged by Hotspring are exclusive of any taxes (such as VAT), duties or other governmental levies or any financial charges. You agree to pay and be responsible for any such taxes, duties, levies or charges for the use of the Hotspring Services in addition to our service fees. In the event Hotspring is required by any applicable law to collect or withhold any taxes or duties, you agree to pay such taxes or duties to Hotspring. You will also be liable for any financial charges for remission of funds to you, and Hotspring shall have the right to pay such charges from such funds. Hotspring shall have the right to deduct any financial charges incurred as a result of providing the Project Services and the party receiving the funds will bear the costs of such bank charges.
5. Member’s Responsibilities
5.1 Provision of Information and Assistance. You agree to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for the completion of the Projects and Hotspring’s provision of the Services. If your failure to do so results in delay in the provision of any Service, cancellation of any Project, or disposal of any funds, Hotspring shall not be liable for any losses or damages arising from such default, delay, cancellation or disposal.
5.2 Representations and Warranties. You represent and warrant that:
(a) you will use the Services in good faith and in compliance with all applicable laws and regulations, including laws related to anti-money laundering and counter-terrorism financing.
(b) all information and material you provide in connection with the use of the Project Services is true, lawful and accurate, and is not false, misleading or deceptive;
(c) you will not use the Services to defraud Hotspring, our affiliates, or other members or users of the Hotspring Platform or engage in other unlawful activities (including without limitation dealing in products prohibited by law);
(d) in case that you are a Vendor of content, you have the legitimate right to sell, distribute or export the products using the Services and such content does not infringe any third party’s rights; and
(e) in case that you are a Vendor of services, you will provide the services ordered with reasonable care and skills.
5.3 Breaches. If you are, in Hotspring’s opinion, not acting in good faith, abusing the Services, or otherwise acting in breach of this Agreement, Hotspring shall have the right to cancel the relevant Project(s) at any time without any liability for any losses or damages arising out of or in connection with such cancellation. Hotspring also reserves the right to impose any penalty, or to temporarily or permanently suspend or terminate your use of the Services, temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free membership on the Hotspring Platform. Hotspring also reserves the right to temporarily suspend the transaction functionalities of your account with Hotspring for a prescribed period determined by Hotspring, or permanently terminate the use of your Hotspring account. Hotspring may also publish the findings, penalties and other records regarding the breaches on the Hotspring Platform.
5.4 Obligations to Pay Taxes. You shall be solely responsible for payment of any taxes (such as VAT), duties or other governmental levies or any charges or fees that may be imposed on any products or services purchased or supplied under or in connection with the Online Projects.
5.5 Feedback System. You shall not take any action, which may undermine the integrity of Hotspring’s feedback system, such as providing positive feedback on oneself on the Hotspring Platform using secondary Member IDs or through third parties or by providing unsubstantiated negative feedback on another member on the Hotspring Platform.
5.6 Indemnification by Member. You agree to indemnify Hotspring and our affiliates, employees, directors, officers, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from your use of the Services or from your breach of this Agreement. Hotspring reserves the right, at our own discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with Hotspring in asserting any available defenses.
6.1 Confidential Obligations. You shall keep confidential all confidential information provided by other members of the Hotspring Platform or by Hotspring or any of its affiliates in connection with any Online Project or the Project Services.
6.2 Confidential Information. All information and material provided by another member of the Hotspring Platforms or by Hotspring or any of its affiliates will be deemed to be confidential information unless such information or material is already in the public domain or has subsequently becomes public other than due to your breach of the confidential obligations.
6.4 Data Protection and Privacy Role of Members. Members acknowledge that they have their own data protection and privacy compliance responsibilities with respect to personal information of other Clients or other individuals that the Member processes. Members represent and warrant, and undertake to Hotspring to ensure, that in relation to such personal information they are and will be fully compliant with all applicable data protection and privacy laws, including without limitation maintaining their own records of such personal information independently of the platform (to the extent required under applicable laws), complying with direct marketing laws, and responding to requests by individuals to exercise their rights under such laws. Neither Hotspring nor any of its affiliates is responsible or liable for a Members fulfillment of their obligations under applicable data protection and privacy laws. For the avoidance of doubt, in relation to such personal information the liability and obligations of Hotspring and its affiliates under applicable data protection and privacy laws are entirely independent of and separate from the liability and obligations of Members under such laws. Hotspring shall have no liability to any Members for the compliance, by Hotspring or its affiliates, with its or their own obligations under applicable data protection or privacy laws, including without limitation in relation to the exercise by Members or other individuals of their rights regarding their personal information processed in connection with any services and products provided by Hotspring.
6.5 Intellectual Property Rights. Member acknowledges that the Project Services and Hotspring Platform and all intellectual property rights embodied in them are and will remain the property of Hotspring. Member will have no right, title or interest in or to the Project Services or the Hotspring Platform, There shall be no licenses or rights implied under this Agreement, based on any course of conduct, or other construction or interpretation thereof. All rights and licenses not expressly granted are reserved by Hotspring.
7. Disclaimers and Limitation of Liability.
7.1 No Warranty. You expressly agree that your use of the Project Services is at your sole risk. TO THE FULL EXTENT PERMITTED BY LAW THE TRANSACTION SERVICES ARE PROVIDED ON THE “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASES, AND HOTSPRING MAKES NO REPRESENTATION OR WARRANTY THAT THE PROJECT SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. HOTSPRING MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, TRUTHFULNESS AND COMPLETENESS OF THE INFORMATION PROVIDED BY ANY MEMBER OF THE HOTSPRING PLATFORM. YOU WILL BE SOLELY RESPONSIBLE FOR ALL CONSEQUENCES RESULTING FROM YOUR OWN JUDGEMENT AND DECISION TO USE OR OTHERWISE RELY ON SUCH INFORMATION. HOTSPRING AND OUR AFFILIATES FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY DISCLAIMED AND EXCLUDED.
7.2 Exclusions and Limitation of Liabilities. TO THE FULL EXTENT PERMITTED BY LAW, HOTSPRING SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF DATA, WHETHER IN CONTRACT, NEGLIGENCE, TORT, EQUITY OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE TRANSACTION SERVICES. THE AGGREGATE LIABILITY OF HOTPSPRING AND OUR AFFILIATES AND AGENTS ARISING FROM THE PROJECT SERVICES IN CONNECTION WITH ANY ONLINE TRANSACTION SHALL NOT EXCEED THE HIGHER OF THE SERVICE FEES CHARGED BY HOTSPRING OR US$1,000.
7.3 SOME OR ALL OF THESE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IF YOUR STATE, PROVINCE OR COUNTRY DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS UNDER YOUR LOCAL LAW IN YOUR STATE, PROVINCE OR COUNTRY THAT VARY FROM STATE TO STATE. NOTHING IN THIS AGREEMENT IS INTENDED TO AFFECT THOSE RIGHTS IF THEY ARE APPLICABLE TO YOU.
8. Force Majeure
8.1 Force Majeure. Under no circumstances shall Hotspring and our affiliates and agents be held liable for any delay or failure or disruption of the Project Services resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, acts of God, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, terrorism, war, governmental actions, orders of domestic or foreign courts or tribunals.
9.1 Notices. Except, as explicitly stated otherwise, legal notices shall be served on you by sending notices to the email address in your latest membership profile on the Hotspring Platform. Notice shall be deemed given 24 hours after email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you legal notices by mail to the address in your latest membership profile in which case the notice shall be deemed given five days after the date of mailing. Except as explicitly stated otherwise, legal notices shall be served on Hotspring by sending the notices to Hotspring personally, by courier or certified mail at [ADDRESS].
10. Governing Law; Jurisdiction
10.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. Both parties submit to the personal jurisdiction of and venue in the state and federal courts in the State of New York. The parties further agree that any cause of action arising under this Agreement shall exclusively be brought in such courts.
10.2 Limitation Period. In any event, you may not make any claim against Hotspring or our affiliates under this Agreement after one year from the occurrence of the matter giving rise to the claim.
10.3 Injunctive Relief. Either party may seek injunctive or other equitable relief against the other party in any court of competent jurisdiction.
11. General Provisions
11.1 Entire Agreement. This Agreement constitutes the entire agreement between you and Hotspring with respect to and governs the use of the Project Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
11.2 Severance. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
11.3 Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
11.4 Independent Contractor. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
11.5 No Waiver. Any failure by Hotspring and our affiliates to exercise any of our rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
11.6 Assignment. Hotspring shall have the right to assign this Agreement (including all of our rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of our affiliates and to any successor in interest. Hotspring may delegate certain of Hotspring rights and responsibilities under this Agreement to independent contractors or other third parties. You may not assign, in whole or part, this Agreement to any person or entity.