TopProz’s VanLynk Service Provider’s User Agreement

Created October 10, 2023

IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.

TopProz, Inc. operating as TopProz ("TopProz") is a fully digital platform consisting of downloadable software and a website designed to facilitate connections between consumers, referred to as "Users," who are seeking services from Service Professionals. Service Professionals, in turn, use the platform to connect with Users in need of their services across various service categories. If you represent a Service Professional ("You" or "Company"), you are granted permission to access and utilize the TopProz.com website and mobile application, including downloadable versions of the website and associated functionalities, collectively referred to as the "Platform." Your usage of the Platform is subject to the terms and conditions outlined in this Service Provider's User Agreement. Please note that TopProz reserves the right to modify, amend, or replace this Agreement at its sole discretion. This Agreement governs various aspects of your relationship with TopProz beyond your use of the Platform, and the following sections define the scope of this relationship.

To gain full access to the TopProz Platform and utilize its features, including client and user lists, connections, matching capabilities, and communication tools, you are required to thoroughly review and accept the Terms and Conditions detailed within this Agreement. It is important to note that these Terms and Conditions may be subject to periodic updates. It is your responsibility, as a Service Professional, Company, or authorized agent, to regularly review this dynamic document to stay informed about any revisions.

BY USING THE TOPPROZ PLATFORM, THE COMPANY OR SERVICE PROFESSIONAL UNCONDITIONALLY ACCEPTS THE TERMS AND CONDITIONS OUTLINED IN THIS AGREEMENT. THE SERVICE PROFESSIONAL AND/OR THE COMPANY CONFIRMS THAT THEY HAVE READ, UNDERSTAND, AND ACKNOWLEDGE THE REQUIREMENTS AND IMPLICATIONS OF THIS AGREEMENT. THEY ALSO AGREE TO BE LEGALLY BOUND BY ALL THE PROVISIONS, TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN, AS IF THEY HAD PHYSICALLY SIGNED THIS AGREEMENT. 

1.      USE OF SERVICES and Fees

a.      Subject to the Service Professional's or Company's compliance with the Terms and Conditions outlined in this Agreement, the Company is hereby granted permission to access and utilize the services provided to Service Providers, which encompass the following:

                                                              i.           TopProz Database: Access to the TopProz Database, which includes relevant Platform functionalities.

                                                            ii.           Reviewing User-Generated Content: The ability to review content generated by customer End-Users, who are individuals seeking Service Professionals (further defined below). This content may pertain to the Company.

                                                          iii.           Responding to User Reviews and User Content: The capability to submit responses to user reviews and User Content.

                                                           iv.           Creating and Maintaining a Service Professional Profile: The option to create and maintain a Service Professional Profile on the platform, outlining the services offered by the Company.

                                                            v.           Connecting, Accepting Service Jobs, and Communication: The ability to connect with Users, accept service jobs, and communicate with customer end-users.

                                            vi.        Other Platform Features: Access to any additional Platform features or services that TopProz may introduce for the benefit of Service Providers as the Platform continues to evolve.

2.     SUBSCRIPTION FEES

a.      Subscription Fees: TopProz offers "VanLynk Field Service Management Software" as a monthly subscription. By using this service, the Company is granted access to enhanced features and tools specific to field service management.

b.      Payment Authorization: When subscribing to TopProz VanLynk Field Service Management, you authorize the automatic deduction of the monthly subscription fee from your chosen payment method.

c.      Subscription Renewal: Your subscription to TopProz VanLynk Field Service Management will automatically renew on a monthly basis. The corresponding subscription fee will be charged unless you choose to cancel your subscription following our cancellation policy.

d.      Cancellation: You retain the right to cancel your TopProz VanLynk Field Service Management subscription at any time. To do so, please follow the cancellation procedures outlined within the TopProz VanLynk Field Service Management platform.

e.      Non-Refundable: Please note that subscription fees for TopProz VanLynk Field Service Management are non-refundable. If you cancel your subscription, you will not receive a refund for any unused portion of the subscription month.

f.       Modification of Fees: TopProz reserves the right to modify the subscription fees for TopProz VanLynk Field Service Management or introduce new fees. Any changes will be communicated to users in advance.

g.      Payment Processing: Payment processing for subscription fees may be handled through a third-party payment processor. Users are subject to the terms and conditions of the chosen payment processor.

3.      LIMITED LICENSE

By utilizing the TopProz platform, you, as the Service Professional, are considered to have fully acknowledged and accepted the Terms and Conditions outlined herein. Accordingly, TopProz grants you, the Service Professional, a limited license to access and utilize the Platform and all its associated TopProz functionalities. Moreover, you, as the Service Professional, affirm that you will not knowingly or negligently allow the reproduction, duplication, or exploitation of the TopProz platform without obtaining written consent from TopProz. Additionally, you will promptly inform TopProz if you become aware of any attempted exploitation of the TopProz platform or any usage that violates the terms of this agreement, whether by you or any other end-user. 

4.      END-USER CONTENT

As an integral part of the TopProz Platform's functionality, all Customer End-Users have the capability to generate reviews of Service Providers, referred to as "User Content." These reviews must be specifically related to the Service Provider with whom they have had any form of communication, regardless of whether such communication led to any work or payment.

In the event that a Service Provider is dissatisfied with the content created by a customer end-user, the Service Provider's sole recourse is to contact TopProz through the help portal. By using the Platform, the Service Provider agrees that TopProz bears no responsibility for the messages, reviews, quality, or any other aspect of User Content.

TopProz neither endorses nor assumes responsibility or liability for any User Content, Service Provider Content ("SP Content" as defined below), data, advertising, products, goods, or services available or unavailable through TopProz. The statements, information, and ratings contained in any content generated by a User solely represent the opinions of the individual User who generated or posted such content. Such content does not reflect the opinions of TopProz, its employees, or any of its affiliates, managers, executives, agents, or other representatives.

The Company acknowledges and understands that TopProz serves merely as a passive conduit and interactive Platform provider for the publication and distribution of User Content and SP Content. TopProz holds no duty or obligation to investigate the accuracy of User Content or the quality of work performed by the Company or any other Service Provider subject to User Content. When using TopProz as a Service Professional or on behalf of a Service Professional, it is the Company's responsibility to review, audit, and edit all material submitted in connection with the Services they provide for accuracy and legality in any form such information is submitted.

TopProz will not, under any circumstances, be liable for any User Content or SP Content, including but not limited to content containing errors, omissions, or defamatory statements, or for any loss or damage of any kind incurred as a result of the use of any User Content or SP Content submitted, accessed, transmitted, or conveyed via the Services or otherwise.

The Company hereby relinquishes any claims, rights, or actions it may have against TopProz or any of its affiliates or subsidiaries in relation to any User Content or SP Content and releases TopProz and each of its affiliates and subsidiaries from any and all liability concerning User Content or SP Content.

The Company agrees to indemnify and hold harmless TopProz, its affiliates, subsidiaries, and their respective owners, managers, officers, employees, agents, or representatives for any damages that may arise, directly or indirectly, from any claim or right it may have against TopProz regarding statements made by a User or User Content submitted by a User that is communicated, posted, or published by TopProz on its Platform or to a third party.

The Company acknowledges and agrees that only TopProz can determine whether content violates its Terms and Conditions and whether it should be removed from the Platform.

SP Generated Content shall not include any offensive content, including but not limited to:

1.      Content containing offensive language, harmful content, or content devoid of qualitative value.

The Company acknowledges and agrees that TopProz, and only TopProz, has the authority to determine if content violates its Terms and Conditions and whether it should be removed. 

5.      PRIVACY POLICY

 We recommend that you carefully review this statement, as it outlines your rights and our obligations regarding the processing of your data. In handling your data, we adhere to privacy legislation requirements, including compliance with the California Consumer Privacy Act (CCPA). This entails, among other things, the following:

-         We transparently communicate the purposes for which we process personal data through this privacy statement.

-         We endeavor to limit the collection of personal data to only what is necessary for legitimate purposes.

-         In cases where your consent is required, we seek your explicit consent before processing your personal data.

-         We implement appropriate security measures to safeguard your personal data and require the same from any third parties processing personal data on our behalf.

-         We honor your right to access, correct, or delete your personal data upon your request.

If you have any inquiries or wish to ascertain the specific data we retain about you, please reach out to us via telephone, mail, or email using the contact information provided at the end of this Privacy Statement.

a.      Purpose and categories of data

Here are the categories of personal information to be collected and the purposes for which these categories shall be used:

                                                              i.           Contact Information:

Purpose: Contact may be initiated by you through phone, mail, email, and/or webforms. Your contact information may also be provided to customer end-users. This occurs when you create a profile on the TopProz platform and agree to make your contact information public.

The collection and use of this information are intended to facilitate communication between service professionals (you) and customer end-users through various means, including phone, mail, email, and webforms, as well as to enable users of the TopProz platform to connect with you for service-related purposes.

b.      The following categories of data will be collected and shared:

-         A first and last name

-         An email address

-         A telephone number.

-         Billing address

-         Service address

-         Account Type

Compiling and analyzing statistics for website improvement.

c.      The following categories of data may be collected

-         IP address

-         Internet activity information, including, but not limited to, browsing history, search history, and information regarding a consumer's interaction with an Internet Web site, application, or advertisement.

-         To be able to offer personalized products and services.

d.      The following categories of data may be collected

-         Geolocation data

e.      Sharing with other parties

We do not share data with third parties. Information that a User enters when requesting a quote or asking questions is sent exclusively to the Service Provider.

We may only disclose personal information if:

1.      We are required to do so by applicable law or a court order.

2.      In response to a request from a law enforcement agency, to the extent permitted under other provisions of the law, for the purpose of providing information.

3.      When necessary for an investigation related to public safety or a matter of public interest.

f.       How We Respond to Do Not Track Signals

Our website responds to and respects the Do Not Track (DNT) header request field. If you enable DNT in your browser settings, your preferences are conveyed to us through the HTTP request header, and as a result, we will refrain from tracking your online browsing behavior. Your privacy preferences are important to us, and we are committed to honoring your choice not to be tracked.

g.      Security

Our commitment to the security of personal data is unwavering. We implement rigorous security measures to mitigate any potential abuse or unauthorized access to personal data. These measures are designed to ensure that only individuals with a legitimate need have access to your data, safeguarding the data against unauthorized use. Additionally, we conduct regular reviews of our security protocols to maintain their effectiveness and adapt to emerging threats, thereby upholding the protection of your personal information. Your privacy and data security are our top priorities.

h.      Third party websites

It's important to note that this privacy statement exclusively pertains to your data while using our website and services. When you navigate to third-party websites through links on our platform, this privacy statement no longer applies. We do not have control over the data collection practices of these third-party websites, and we cannot assure the reliability or security of how they handle your personal data. We strongly advise you to review the privacy statements of these external websites before engaging with them to understand their respective data handling practices. Your privacy and data security are essential to us, even beyond our platform.

i.        Amendments to this privacy statement

You should be aware that we retain the right to modify and update this privacy statement as needed. We recommend that you check this privacy statement periodically to stay informed about any revisions or alterations. Your ongoing understanding of our privacy practices is important to us, and we are committed to keeping you informed of any changes that may affect your data privacy.

j.        Accessing and modifying your data

If you have any questions, please contact us at the number or addresses listed at the end of this Privacy Statement. You have the following rights:

k.      Right to know what personal information is being collected about you

Consumers have the right to request specific information from a business that collects their personal information. This information includes:

-         The categories of personal information that the business has collected about them.

-         The categories of sources from which the personal information is obtained.

-         The business or commercial purpose for collecting or selling their personal information.

-         The categories of third parties with whom the business shares their personal information.

-         The specific pieces of personal information that the business has collected about them.

-         This transparency ensures that consumers have a clear understanding of how their personal information is being used and shared by the business.

l.        The right to know whether personal information is sold or disclosed and to whom

Consumers also have the right to request specific information if a business sells their personal information or discloses it for a business purpose. This information includes:

-         The categories of personal information that the business collected about the consumer.

-         The categories of personal information that the business sold about the consumer and the categories of third parties to whom the personal information was sold, categorized by the type of personal information for each third party.

-         The categories of personal information that the business disclosed about the consumer for a business purpose.

This information empowers consumers to understand how their personal information is being shared and with whom, particularly if it is sold or disclosed for business purposes.

m.    The right to delete any personal information

Consumers have the right to request the deletion of their personal information collected by a business, subject to certain exceptions:

-         Upon receiving a verifiable request for deletion, the business must delete the consumer's personal information from its records and instruct any service providers to do the same.

-         However, a business or service provider is not obligated to delete personal information if it is necessary for various specified purposes, including:

o  Completing a transaction or contract with the consumer.

o  Detecting and preventing security incidents and illegal activities.

o  Debugging and maintaining functionality.

o  Exercising free speech or other legal rights.

o  Complying with specific laws.

o  Conducting scientific, historical, or statistical research with informed consent.

o  For internal uses aligned with consumer expectations.

o  Meeting legal obligations.

-         Using personal information internally in a lawful and context-appropriate manner.

These exceptions ensure that businesses can retain personal information when necessary for legitimate purposes while respecting consumers' right to have their data deleted in most cases..

n.      Children

Our Platform is not intended for or directed toward children, and we do not knowingly collect personal data from individuals under the age of consent in their country of residence. We kindly request that individuals under the age of consent refrain from submitting any personal data to us through our Platform. If you are a parent or guardian and believe that your child has provided us with their personal information, please contact us using the information provided in this Privacy Statement so that we can take appropriate steps to address the situation. 

6.      INTELLECTUAL PROPERTY

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Company under this Agreement or prepared by or on behalf of TopProz in the course of performing the Services, including any items identified as such in the Quote (collectively, the "Deliverables") except for any Confidential Information of Company or customer materials shall be owned by TopProz. TopProz hereby grants Company a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Company to make reasonable use of the Deliverables and the Services.

Company must use the Products for their intended purpose only. Company must not itself, nor through any affiliate, employee, consultant, contractor, agent or other third party: (a) sell, resell, distribute, lease, rent, license, sublicense, or host in whole or in part, the Products; (b) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer, copy, or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure, or other elements of the Products, in whole or in part, for any purpose; (c) allow access to, provide, divulge or make available the Products to any individual or entity other than Company’s employees or individual contractors who have a need for such access and who will be bound by the terms of the Agreement; (d) write or develop any derivative works based upon the Products; (e) modify, adapt, translate or otherwise make any changes to the Products; (f) disclose or publish, performance or capacity statistics or the results of any benchmark test performed on the Products; (g) impede, disable or otherwise undermine any component designed to track Company’s usage of the Products; or (h) otherwise use the Products in a manner not expressly permitted.

7.      LIQUIDATED DAMAGES AND BREACH OF CONTRACT

TopProz reserves the right to take appropriate actions to remedy any breach of this agreement by the Company in the event that these Terms and Conditions are violated. These remedies available to TopProz may include, but are not limited to:

1.      Revocation of all existing licenses.

2.      Revocation of all associated advertising and publication privileges.

3.      Imposition of liquidated damages.

The Company acknowledges and agrees that calculating the exact damages resulting from any breach by the Company would be challenging. Therefore, the Company agrees to pay TopProz the following amounts as reasonable estimations of damages in the event of specific breaches:

-         If the Company posts Content in violation of this agreement, the Company agrees to pay TopProz One Thousand Dollars ($1,000) for each piece of content that was posted in violation of the agreed-upon terms.

-         If the Company misappropriates any User Content or data belonging to TopProz or its Users in violation of any terms of this Agreement, the Company agrees to pay Fifteen Thousand Dollars ($15,000) per record or profile that is exploited.

-         If the Company uses or causes any non-licensed users, software, bots, or manual processes to interfere with, monitor, duplicate, or replicate any information contained on the TopProz Platform, the Company agrees to pay One Thousand Dollars ($1,000) for each record or other information that is interfered with or duplicated.

It is important to note that, except as described above in the liquidated damages provision, the Company will also be liable for actual damages, where the difficulty in assessing those damages is calculable by TopProz. 

8.      LIMITATIONS OF LIABILITY

In no event shall TopProz, its directors, officers, employees, contractors, agents, affiliates, successors, assigns, or service providers be liable to the Client or any third party for:

1.      Any loss of use, revenue, or profit.

2.      Loss of data or diminution in value.

3.      Any consequential, incidental, indirect, exemplary, special, or punitive damages.

These damages may arise out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not TopProz has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

Furthermore, in no event shall TopProz's aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the aggregate amounts paid or payable to TopProz pursuant to this Agreement or pursuant to the applicable quote in a 6-month period preceding the event giving rise to the claim.

9.      INDEMNIFICATION

Company and its affiliates, along with their agents, agree to indemnify and hold harmless all of TopProz's executives, owners, agents, and employees against any potential losses or claims arising from Company's use of TopProz. This indemnification includes, but is not limited to, covering reasonable attorney's fees, demands, and any claims made by third parties. 

10.  MUTUAL ARBITRATION AGREEMENT

In alignment with current best practices and relevant legal considerations:

1.      Initial Negotiation: In an effort to minimize potential dispute costs, TopProz may, with the intent of resolving any disagreements, approach the Company informally before proceeding to arbitration or litigation. The Company will receive notice of such a dispute through written communication sent to the provided physical address.

2.      Arbitration: If the informal initial negotiation does not lead to a resolution, TopProz will seek to resolve the matter through formal and binding arbitration. This Arbitration Agreement is governed by the Federal Arbitration Act and pertains to transactions involving commerce. The arbitration will be initiated and conducted before a single arbitrator following the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA") and, when applicable, the AAA's Supplementary Procedures for User-Related Disputes ("AAA User Rules"), accessible on the AAA website (www.adr.org). Arbitration fees and arbitrator compensation will be governed by the AAA Rules (and potentially limited by the AAA User Rules). Each party is responsible for their own attorney fees, subject to any remedies that may be later awarded under relevant law. The arbitrator will issue a written decision. Importantly, the arbitrator, not any federal, state, or local court or agency, holds exclusive authority to resolve disputes regarding the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, this exclusivity does not extend to the "Class Action Waiver" described in Subsection (4) below.

3.      Parties Waive Class Action Rights: In compliance with applicable law, TopProz and the Company both renounce their right to litigate any Dispute as a class action, whether as a class member or a representative, or to act as a private attorney general, either in court or through an arbitration proceeding.

4.      Mutually Agreed-Upon Rules for Arbitration Proceedings: If either Party initiates Arbitration under this Agreement, they shall adhere to the following rules. The arbitration must be initiated within the same time limits as the relevant statute of limitation provisions in state or federal law. The selected arbitrator will follow the same procedures as if the dispute had arisen in state or federal court, in terms of determining timeliness and remedies.

5.      Severability: Both parties acknowledge that if any portion of this mutually binding arbitration agreement is deemed unenforceable, the enforceable portion will be severed and applied accordingly. 

11.  GOVERNING LAW

This Agreement, along with all associated documents and any issues arising from or connected to this Agreement, whether based on contract, tort, or statute, are subject to and interpreted in accordance with the laws of the State of California, United States of America. This includes the application of the statutes of limitations in California and any relevant choice of law statutes of the State of California. This is done without giving consideration to the conflict of laws provisions that might necessitate or allow for the use of laws from any jurisdiction other than those of the State of California. 

12.  LIMITATIONS PERIOD

The Company acknowledges and agrees that, notwithstanding any statute or law to the contrary, any claim or cause of action arising from or related to the use of the Service or this Agreement must be filed within one (1) year from the date when such claim or cause of action first arose. Failure to do so will result in the claim or cause of action being permanently barred. 

13.  MODIFICATION

TopProz reserves the right to modify or update the Terms and Conditions of this Agreement, and any such modifications will become effective immediately upon being posted on the Platform. The date of the last update to the Agreement will be clearly indicated on the first page of this Agreement. It is the Company's responsibility to regularly review these terms and conditions. By continuing to use the Services after any modifications, the Company will be considered to have conclusively accepted all the changes made to this Agreement. 

14.  DELAYS

The Services may be susceptible to limitations, delays, and other issues inherent in internet and electronic communication use. TopProz shall not be held responsible for any delays, failures, or damages arising from such problems. 

15.  ASSIGNMENT

The Company may not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without obtaining prior written consent from TopProz. Any attempted assignment or delegation in violation of this provision shall be deemed invalid. Such assignments or delegations shall not release the Company from its obligations under this Agreement. TopProz, however, reserves the right to assign its rights or delegate its obligations to any affiliate or to any entity acquiring all or a substantial portion of TopProz's assets without requiring Company's consent.

16.  BINDING EFFECT

Each undersigned party explicitly warrants and represents that they possess the full power and authority to execute this Agreement on behalf of the respective party they represent. Their signatures shall have the legal effect of binding the indicated party to the terms and conditions outlined herein. 

17.  PROVISIONS REMAINING IN EFFECT

If this Agreement is terminated, specific provisions will persist and remain in effect, which include but are not limited to Sections 3, and Sections 5-11. 

18.  SERVICE PROVIDER GUARANTEES

The Service Provider commits to affixing three "Book Us On TopProz" stickers to each of their company vehicles. These stickers, provided by TopProz, will have dimensions not exceeding 10 inches in height and 20 inches in width. 

19.  AMENDMENTS

Any changes, adjustments, or cancellations of this Agreement are valid only if they are made in writing, clearly identified as amendments, rescissions, terminations, or discharges of this Agreement, and duly signed by authorized representatives of both Parties.

20.  CHOICE OF FORUM

Each Party agrees, without reservation, that any dispute, lawsuit, or legal proceeding arising from or related to this Agreement, including all associated exhibits, schedules, attachments, and appendices, as well as all contemplated transactions encompassing contract, equity, tort, fraud, and statutory claims, shall exclusively be initiated in the Superior Court of California, County of Ventura. In the event that the said court lacks subject matter jurisdiction, such disputes shall be directed to the courts of the State of California located in Ventura County, California, including any subsequent appellate courts. Both Parties unconditionally accept the jurisdiction of these courts and commit to initiating any such action, lawsuit, or legal proceeding solely in the Superior Court of California, County of Ventura. Furthermore, both Parties recognize that a final judgment in any such action, lawsuit, or legal proceeding is definitive and enforceable in other jurisdictions through legal actions on the judgment or through any other method sanctioned by law. 

21.  WAIVER OF JURY TRIAL

Each Party acknowledges that disputes arising under this Agreement, including its associated exhibits, schedules, attachments, and appendices, are likely to involve complex and challenging issues. Consequently, each Party hereby irrevocably and unconditionally waives any entitlement to a trial by jury in relation to any legal actions arising from or related to this Agreement, encompassing all exhibits, schedules, attachments, or appendices attached hereto, as well as the transactions delineated herein.

22.  21.SMS Alert Consent

By accepting these terms and conditions, you willingly and explicitly grant your consent to receive SMS messages and acknowledge your ability to opt in or opt out at any time by responding with "STOP" to our messages. Your consent is entirely voluntary, and we exclusively send SMS messages to individuals who have explicitly chosen to receive them. We do not participate in third-party opt-ins and may retain data related to your opt-in, including the date and time of your consent, for compliance and record-keeping purposes. Your opt-in signifies your understanding of and agreement to these terms and conditions, as well as our Opt-In policy. More details can be found on TopProz TopProz SMS Terms and Conditions