Terms

TERMS OF USE

Effective Date: October, 2019

Acceptance of the Terms of Use

These Terms of Use ("Terms of Use") constitute a legally binding agreement between you ("User" or "you" or "your" or “Customer”) and The Guard Market, Inc. ("The Guard Market" or "we" or "us"). The following terms and conditions, govern your access to and use of The Guard Market's  website located at www.theguardmarket.com (the "Website") including any content, functionality and services offered on or through the Website whether as a guest or a registered User.

PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND THE GUARD MARKET HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 27 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST THE GUARD MARKET TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.

Please read these Terms of Use carefully before you start to use The Guard Market Platform. By accessing or using any aspect of The Guard Market Platform, or by clicking to accept or agree to these Terms of Use when this option is made available to you, you accept and agree that you have read, understood, and agree to be bound and abide by these Terms of Use (including the dispute resolution and arbitration provisions in Section 27) and our privacy policy, found at www.theguardmarket.com ("Privacy Policy"), incorporated herein by reference (together herein referred to as this "Agreement"). If you do not meet all of these requirements or agree to be bound by the terms and conditions of these Terms of Use, you must not use or access The Guard Market Platform or the Services.

By clicking to accept or agree to these Terms of Use, or by otherwise accessing and using any aspect of The Guard Market Platform, you represent and warrant that: (a) you are at least 18 years old, are of legal age to form a binding contract with The Guard Market in the jurisdiction in which you reside, and are otherwise capable of entering into binding contracts; (b) you have the right, authority and capacity to enter into this Agreement; and (c) if you are using The Guard Market Platform on behalf of a company, entity, or other organization, then you represent and warrant that you are an authorized representative of that entity with the authority to bind that entity to these Terms of Use, and agree to be bound by these Terms of Use on behalf of that entity. If you do not meet all of these requirements or agree to be bound by the terms and conditions of these Terms of Use, you must not use or access The Guard Market Platform or the Services.

MATERIAL TERMS AND NOTICES

As provided in greater detail in these Terms of Use (and without limiting the express language of these Terms of Use), you acknowledge the following:

  • The Guard Market Platform connects you to third party Security Providers (“Providers”).
  • The use of The Guard Market Platform may be subject to additional Provider terms of service.
  • You consent to the collection, use, and disclosure of your personally identifiable information in accordance with the Privacy Policy;
  • The Guard Market Platform is provided “as is” without warranties of any kind, and The Guard Market’s liability to you is limited regarding the performance of Services;
  • We will resolve disputes arising under these Terms of Use through binding arbitration. By accepting this Agreement, as provided in greater detail in Section 27, you and The Guard Market are each waiving the right to a trial by jury or to participate in a class action;
  • We may, without further notice or warning and in our discretion, access, store, use, and disclose the messages, call transcripts, and data that occur through The Guard Market Platform for our business purposes, including to provide and improve customer service and The Guard Market Platform, fraud prevention, and to identify violations of this Agreement;

1. Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. Please check these Terms of Use periodically for changes. If a change to these Terms of Use materially modifies your rights or obligations, you will be required to accept the modified Terms of Use to continue to use The Guard Market Platform. Material modifications are effective upon your acceptance of the modified Terms of Use. Immaterial modifications are effective upon publication. Disputes arising under the Terms of Use will be resolved in accordance with the version of the Terms of Use that was in effect at the time the dispute arose.

2. The Guard Market Platform Connects Users to Providers

For purposes of this Agreement, the services provided by Providers to their Customers that are scheduled through The Guard Market Platform shall be referred to as the "Services.”

EACH SERVICE PROVIDED BY A PROVIDER TO A CUSTOMER SHALL CONSTITUTE A SEPARATE AGREEMENT BETWEEN THAT PROVIDER AND CUSTOMER. PROVIDERS ARE INDEPENDENT SUPPLIERS AND NOT EMPLOYEES OR SUBCONTRACTORS OF THE GUARD MARKET. THE GUARD MARKET MAKES NO REPRESENTATION AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OF SERVICE PROVIDERS, NOR DOES IT HAVE CONTROL OVER OR MAKE REPRESENTATIONS REGARDING THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER RELATING TO ANY SERVICES. THE GUARD MARKET DOES NOT HAVE CONTROL OVER THE QUALITY, TIMING OR LEGALITY OF SERVICES DELIVERED BY SERVICE PROVIDERS. THE GUARD MARKET HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICES PROVIDED TO CUSTOMERS BY SERVICE PROVIDERS, INCLUDING, BUT NOT LIMITED TO, COMPLIANCE WITH ANY LAW OR REGULATION. EXCEPT AS OTHERWISE SET FORTH HEREIN.

3. Provider License and Insurance Checks

The Guard Market uses the following criteria as part of its registration enrollment process ("registration") for new Providers. We perform the below screening at the time of the Providers enrollment, and every year thereafter:

  • Licensing - We confirm that a prospective new Provider has any applicable required state-level licensing.
  • Insurance - We confirm that a prospective new Provider has any applicable required state-required minimum liability insurance.
  • State Business Filings - For Providers that are corporations or limited liability companies, we confirm that the business is registered in the state in which it is located.

WE PERFORM THE ABOVE SCREENING BASED UPON INFORMATION PROVIDED TO US BY THE PROVIDER
NOTE: THE GUARD MARKET PERFORMS SCREENING SOLELY AT THE TIME THE PROVIDER  APPLIES FOR MEMBERSHIP IN THE GUARD MARKET NETWORK, AND EVERY YEAR THEREAFTER, AND THEREFORE A PROVIDERS INFORMATION MAY CHANGE OR EXPIRE OVER TIME, AND BETWEEN SCREENINGS. THUS, THE GUARD MARKET CANNOT AND DOES NOT WARRANT OR REPRESENT THAT PROFILE AND SCREENING INFORMATION IS UP TO DATE. WE RECOMMEND THAT BEFORE WORKING WITH A PROVIDER INFORMATION PRESENTED BY THE PROVIDERS IS STILL ACCURATE, CURRENT AND ACCEPTABLE TO YOU.


The above procedures may change from time to time at the sole discretion of The Guard Market. The Guard Market believes that it uses commercially reasonable methods to check these matters but does not make any representations or warranties that members continue to meet the above screening criteria after the date of their enrollment in The Guard Market network.

4. Service Fees for Services

Customers shall be charged pursuant to the rates quoted via The Guard Market Platform at the time the Service is scheduled based upon the stated parameters of the Services and the location where such Services are to be performed. You are responsible for reviewing the applicable Service Fee prior to the submission or acceptance of a Service. As a Customer, you shall be responsible for all incurred Service Fees charged under your User account.  

5. Payments

Users of The Guard Market Platform contract for the Services directly with designated Providers. The Guard Market is not a party to any contracts for the Services. The Guard Market Platform facilitates these contracts by supplying a medium through which Customers can connect with Providers, schedule the Services, and make payments for the Services. Notwithstanding the foregoing, Customers may not circumvent The Guard Market Platform by using The Guard Market Platform to connect with Providers and then engage those Providers for Services outside of The Guard Market Platform.

  • Payment Processing Service.  

To facilitate payment for the Services, each User is required to register a credit, debit or prepaid card. You authorize us and the payment processing service retained by us (currently, Stripe) to facilitate the transaction of the Services and the payment remittance of all applicable charges. All payments transacted through Stripe shall be subject to the Stripe Connected Account Agreement, located at https://stripe.com/connect/account-terms, which includes the Stripe Terms of Service, located at https://stripe.com/us/terms (collectively, the "Stripe Services Agreement"). By agreeing to this Agreement, 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 The Guard Market facilitating payment processing services through Stripe, you agree to provide The Guard Market accurate and complete information about you and, if applicable, your business, and you authorize The Guard Market to share it and transaction information related to your use of the payment processing services provided by Stripe.

  • Payments.  

As a User, we will charge your credit, debit or prepaid card according to the amount of all Services you scheduled through The Guard Market Platform. You hereby authorize us to charge the payment method on file in your account for such amounts upon acceptance of the proposal. We retain the right, in our sole discretion, to seek authorization of your selected payment method to verify the payment method, ensure that all fees related to your order will be covered, and protect against unauthorized behavior.

No refunds or credits will be provided once the User's selected payment method has been charged. While we will use commercially reasonable efforts to protect all payment method information and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. 

6. The Guard Market Guarantee

The Guard Market Guarantee is that the Service you order and pay for will be performed as described in the description of the Service when you ordered it. If you have ordered and paid for a Service but you believe the Service was not performed in accordance with The Guard Market Guarantee you must report the issue within twenty-four (24) hours of the Service appointment to our Support Center at sales@theguardmarket.com and respond to all follow up questions requested of you from the Support Center, and you may be eligible for The Guard Market Guarantee Remedies. The "The Guard Market Guarantee Remedies" are as follows: if we determine that a Service does not meet The Guard Market Guarantee we will, in our sole discretion, refund the payment you actually made for such Service. The amount of The Guard Market Guarantee is limited to any payment you made for the Service. The Guard Market Guarantee does not apply to any other cost, liability, damage, injury, or claim arising from or in connection with the Services. To be clear, The Guard Market Guarantee does not apply to any payments made for Services not scheduled and paid for through The Guard Market Platform.

THIS SECTION 6 STATES THE GUARD MARKET'S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES.

The Guard Market reserves the right in its sole discretion to eliminate The Guard Market Guarantee altogether or to modify its terms at any time, effective with or without notice and without any liability to The Guard Market, although The Guard Market will endeavor to post notification of any material changes. 

7. Service Cancellation

The Guard Market's cancellation policy for specific Services is as follows:

  • Cancellation by Customer. As a Customer, you may cancel your scheduled Service appointments through the App at any time, subject to the following:
    • If you cancel more than 48 hours before a scheduled Service, there is no cancellation fee.
    • If you cancel between 24-48 hours before a scheduled Service, you may be charged a 50% cancellation fee.
    • If you cancel less than 24 hours before a Service, you may be charged a 100% cancelation fee.

8. Overtime

The overtime billing rate will be charged when overtime pay is caused by request of the Customer or by Force Majeure. Request for additional services with less than 24 hours notices may cause overtime.

9. Normal Services

Services shall be in conformity with prac­tices which are generally current in the security industry.  No other warranty, guarantee, or promise is made or may be implied.  Further, you acknowledge that no Provider can guarantee that its efforts will do more than reduce the likelihood of loss or damage.  Providers will undertake efforts only to provide physical security services as requested by you. No effort is undertaken to protect you from the loss of intangible property such as, by way of example, intellectual property, trade secrets, or computer software.  Nor does Provider undertake to protect client from conversion of property that may have been entrusted to employees. 

Security guards or other security personnel furnished by Provider shall perform the usual and customary services of security guards and no security guard shall be armed in the performance of such duty unless specific provision is made for armed guards. 

10. Vehicles

In the event Provider’s employees are requested or required to use Customers vehicles or equipment in the performance of their duties, such vehicles shall be fully insured, and you solely assume any and all liability for any injury to any person or damage to property result­ing from the use of vehicles or equipment.

11. Hazardous Conditions

You warrant that Provider’s employees will not be exposed to hazardous materials, including, by way of example and not limitations, those with radioactive, toxic, biological or explosive properties.  You will be strictly liable for the consequences of any breach of this provision. 

12. Equipment

From time to time Provider’s may provide equipment, supplies and materials relevant to its performance of Services hereunder.  Such equipment, etc., shall remain the property of Provider and, Provider shall be given unfettered access to the property to make recovery thereof. 

13. Not Law Enforcement

Provider’s personnel are not members of law enforcement, rather their presence is intended to act as a deterrent to unlawful behavior.  Their primary directive is to observe and report in a timely fashion such circumstances as agreed upon. The physical security service to be provided does not, unless specifically addressed in a separate writing, require any of Provider’s personnel to go beyond verbal intervention with customers, clients, patrons, intruders, or trespassers.

14. Ratings

To help maintain the quality of The Guard Market Platform, Users will have the opportunity to rate Providers after the completion of Services. 

15. Communications

By becoming a User, you expressly consent and agree to accept and receive electronic and other communications from us, including via email, text message, calls, and push notifications to the telephone number or email address you provided to us, as further described in our Privacy Policy. If you wish to opt out of promotional emails, text messages, or other communications, you may opt out by following the unsubscribe options provided to you in such promotional communications. You may opt out of receiving non-promotional communications from us at any time by deactivating your account. You may continue to receive text messages for a period of time while we work to deactivate your account, and you may also receive text messages confirming the deactivation of your account. You consent to receive autodialed or prerecorded calls from us at the telephone number that you have provided to us to: (a) facilitate communications among Users; or (b) otherwise provide our services or enforce these Terms of Use. You are not required to provide your consent to these calls as a condition of purchase on The Guard Market Platform. Standard telephone minute charges may apply.

We may, without further notice or warning and in our discretion, monitor or record telephone conversations that we have with you or anyone acting on your behalf for quality control and training purposes or to protect our rights.  We may, without further notice or warning, and in our discretion, access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users that occur through The Guard Market Platform for our business purposes, including to provide and improve customer service and The Guard Market Platform, fraud prevention, and to identify violations of this Agreement.

 

16. Accessing The Guard Market Platform and Account Security

We reserve the right to withdraw or amend The Guard Market Platform, and any service we provide on The Guard Market Platform in our sole discretion without notice. We will not be liable if for any reason that all or any part of The Guard Market Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of The Guard Market Platform, or the entire The Guard Market Platform, to Users for any reason or no reason.

To access The Guard Market Platform or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of The Guard Market Platform that all the information you provide on The Guard Market Platform is correct, current and complete. You agree that all information you provide to register with The Guard Market Platform or otherwise, including but not limited to through the use of any interactive features on The Guard Market Platform, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you are provided with, a username, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to The Guard Market Platform or portions of it using your username, password or other security information, including Third Party Site Password. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.

17. Release

THE SERVICE IS ONLY A VENUE FOR CONNECTING USERS TO SERVICE PROVIDERS. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE GUARD MARKET IS NOT AFFILIATED WITH ANY CARRIER, PROVIDER, OR THIRD PARTY SERVICE. ANY DISPUTE YOU HAVE WITH ANY CARRIER, PROVIDER, OR THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND THAT THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE GUARD MARKET (AND OUR OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

18. Prohibited Uses

You may use The Guard Market Platform only for lawful purposes and in accordance with this Agreement. You agree not to use The Guard Market Platform:

  •  In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
  • To impersonate or attempt to impersonate The Guard Market, a The Guard Market employee, another User or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of The Guard Market Platform, or which, as determined by us, may harm The Guard Market or Users of The Guard Market Platform or expose them to liability.

19. User Disputes.

We understand that occasionally disputes may arise between or among our Users. In the event a dispute initiated by either a Provider or a Customer cannot be resolved independently, you hereby agree, at The Guard Market’s request, to participate with good faith, to the extent you are reasonably able to do so, in a neutral resolution, mediation, or arbitration process conducted by The Guard Market or a neutral third-party mediator or arbitrator selected by The Guard Market. Notwithstanding the foregoing, you acknowledge and agree that The Guard Market is under no obligation to become involved in or impose resolution in any dispute between or among Users or any third party.

20 Third Party Services, Third Party Fees, and Linked Websites

  • Access to Third Party Services.  

The Guard Market Platform may provide you with access to third-party websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services, or charitable donation programs (collectively, "Third Party Services"), and may enable you to export information or content, including your or other Users’ User Contributions, to Third Party Services such as Twitter or Facebook, through a feature of The Guard Market Platform. By using one of these features, you agree that The Guard Market may transfer that information or User Contribution to the applicable Third Party Service. The Guard Market does not have or maintain any control over Third Party Services and is not and cannot be responsible for their content, operation or use. By linking or otherwise displaying information from or providing access to any Third Party Services, The Guard Market does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by those Third Party Services.

  • Disclaimer of Liability for Third Party Services.  

Third Party Services may have their own terms of use and privacy policy, and your use of The Guard Market Platform may incur third-party fees, such as fees charged by your mobile carrier for data usage. You are solely responsible for reviewing and complying with any terms of use, privacy policy or other terms governing your use of Third Party Services, and you are solely responsible for all Third Party Services’ fees incurred by you for use of The Guard Market Platform. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third Party Services and to protect your computer systems from viruses, worms, trojan horses and other harmful or destructive content that may be included on or with any Third Party Services. The Guard Market disclaims any and all responsibility or liability for any harm resulting from your use of Third Party Services, and you hereby irrevocably waive any claim against The Guard Market with respect to any Third Party Services.

21. Terms and Termination

This Agreement is effective upon your creation of a User account, as amended by any modifications made pursuant to Section 1. You may discontinue your use of The Guard Market Platform or participation in the Services at any time, for any reason. We may suspend or deactivate your User account or revoke your permission to access The Guard Market Platform, at any time, for any reason, upon notice to you. We reserve the right to refuse access to The Guard Market Platform to any User for any reason not prohibited by law. Either party may terminate the Agreement for any reason upon written notice to the other party. The terms of this Agreement, and any subsequent modifications of this Agreement, shall remain in effect at all times after you or The Guard Market terminate your participation or access to The Guard Market Platform or Services.

22. Changes to The Guard Market Platform

We may update the content on this The Guard Market Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on The Guard Market Platform may be out of date at any given time, and we are under no obligation to update such material.

23. Information About You and Your Visits to The Guard Market Platform

All information we collect on this The Guard Market Platform is subject to our Privacy Policy. By using The Guard Market Platform, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

 24. Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or The Guard Market Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT (INCLUDING MOBILE DEVICES), COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE GUARD MARKET PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE GUARD MARKET PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY THE GUARD MARKET PLATFORM LINKED TO IT.

YOUR USE OF THE GUARD MARKET PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE GUARD MARKET PLATFORM IS AT YOUR OWN RISK. THE GUARD MARKET PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE GUARD MARKET PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE GUARD MARKET NOR ANY PERSON ASSOCIATED WITH THE GUARD MARKET MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE GUARD MARKET PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER THE GUARD MARKET NOR ANYONE ASSOCIATED WITH THE GUARD MARKET REPRESENTS OR WARRANTS THAT THE GUARD MARKET PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE GUARD MARKET PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE GUARD MARKET PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE GUARD MARKET PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THE GUARD MARKET HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

25. Limitation on Liability

IN NO EVENT WILL THE GUARD MARKET, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE GUARD MARKET PLATFORM, ANY THE GUARD MARKET PLATFORMS LINKED TO IT, ANY CONTENT ON THE GUARD MARKET PLATFORM OR SUCH OTHER THE GUARD MARKET PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE GUARD MARKET PLATFORM OR SUCH OTHER THE GUARD MARKET PLATFORMS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE AGGREGATE LIABILITY OF THE GUARD MARKET, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE GUARD MARKET PLATFORM OR OTHERWISE UNDER THESE TERMS OF USE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU PAID TO THE GUARD MARKET FOR ACCESS TO AND USE OF THE GUARD MARKET PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO CLAIM; OR (B) $100.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.  EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS OF USE. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF USE. THE LIMITATIONS IN THIS SECTION 19 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

26. Indemnification

You agree to defend, indemnify and hold harmless The Guard Market, its affiliates, licensors and Providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of this Agreement or your use of The Guard Market Platform, including, but not limited to, any use of The Guard Market Platform's content, Services and products other than as expressly authorized in this Agreement or your use of any information obtained from The Guard Market Platform.

27. Dispute Resolution; Arbitration of Claims

Generally, in the interest of resolving disputes between you and The Guard Market in the most expedient and cost effective manner, YOU AND THE GUARD MARKET, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS MUTUALLY AGREE THAT EVERY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE GUARD MARKET, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

  • Exceptions.  Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.

 

  •  Arbitrator.  Any arbitration between you and The Guard Market will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting The Guard Market.

 

  • Notice; Process.  A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice"). The Guard Market's address for Notice is: The Guard Market, Inc., 1385 Highway 35, #127, Middletown, NJ, 07748. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or The Guard Market may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or The Guard Market must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, The Guard Market will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by The Guard Market in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.

 

  • No Class Actions.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND THE GUARD MARKET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and The Guard Market agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permitted under applicable law.

 

  • Modifications to this Arbitration Provision.  If The Guard Market makes any future change to this arbitration provision, other than a change to The Guard Market's address for Notice, you may reject the change by sending us written notice within 30 days of the change to The Guard Market's address for Notice, in which case your account with The Guard Market will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

 

  •  Enforceability.  If any part of this section is found to be unenforceable, then the entirety of this section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in this Agreement will govern any action arising out of or related to this Agreement. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

28. Governing Law; Jurisdiction

Except as set forth in Section 30 entitled "Dispute Resolution; Arbitration of Claims,” this Agreement is governed and interpreted pursuant to the laws of the State of Pennsylvania, United States of America, notwithstanding any principles of conflict of law. For all disputes, not subject to arbitration under Section 30 hereof, you agree to submit to the personal jurisdiction and venue of the courts located within Lancaster County, Pennsylvania, and waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

29. Waiver and Severability

No waiver by The Guard Market of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of The Guard Market to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.

If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.

30. Entire Agreement

These Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and The Guard Market with respect to The Guard Market Platform and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to The Guard Market Platform.

31. Assignment

This Agreement may not be assigned or transferred by you without The Guard Market's prior written consent. You agree that this Agreement and all incorporated agreements may be automatically assigned by The Guard Market, in our sole discretion, in accordance with the "Notice" section of this Agreement.  

32. Comments and Concerns

All other feedback, comments, requests for technical support and other communications relating to The Guard Market Platform should be directed to: sales@theguardmarket.com

33. Notices

Except as explicitly stated otherwise, any notice to The Guard Market shall be given by certified mail, postage prepaid and return receipt requested to:

The Guard Market, Inc.

1385 Highway 35, #127

Middletown, NJ 07748

Such notices shall be deemed given three days after the date of mailing. Any notices to you shall be provided to you through The Guard Market Platform or given to you via the email address you provided to The Guard Market during the registration process or as otherwise listed in your User or Provider account, and such notice shall be deemed given immediately upon sending. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to The Guard Market during the registration process. In such case, notice shall be deemed given three days after the date of mailing.